Stine v. U.S. Federal Bureau of Prisons

FILED
United States Court of Appeals
Tenth Circuit

March 8, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

MIKEAL GLENN STINE,

Plaintiff-Appellant,
No. 11-1504
v. (No. 1:11-CV-02665-LTB)
(D. Colo.)
U.S. FEDERAL BUREAU OF
PRISONS; DR. CHRISTOPHER
WILSON, ADX; DR. DAVID
ALLRED, Clinical Director; BLAKE
DAVIS, Warden, ADX; MR.
MUNSON, Associate Warden, ADX;
A. OSAGIE, Physician Assitant, ADX;
MR. SMITH, Assistant,
Administrative Health Services; JOHN
DOE, Unknown Defendants,

Defendants - Appellees.

ORDER AND JUDGMENT 1

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

1
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.

After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
 Plaintiff-Appellant Mikeal Glenn Stine, a federal prisoner proceeding pro

se, 2 appeals from the district court’s dismissal of his complaint alleging various

Eighth Amendment violations, which was brought pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Mr. Stine also requests leave to proceed in forma pauperis (“IFP”) on appeal.

Exercising jurisdiction under 28 U.S.C. § 1291, we grant Mr. Stine the right to

proceed IFP, but nonetheless affirm the district court’s order dismissing his

complaint.

I. Factual and Procedural Background

Mr. Stine is a prisoner in the custody of the Federal Bureau of Prisons

(“BOP”). On October 13, 2011, he filed a complaint in the U.S. District Court for

the District of Colorado, alleging various Eighth Amendment claims under

Bivens. Mr. Stine’s complaint alleges that he was denied the medication

“Omeprazole,” which he claims is essential to help control his gastroesophageal

reflux problems, see Aplt. Resp. to Show Cause Order at 3–4, and that, unless

given appropriate treatment, he is likely to die because he has a “sliding hiatal

hernia” and an egg-sized mass in his chest, both of which have acted to intensify

the pain and suffering that goes along with his reflux, see Aplt. Opening Br. at 2.

2
We construe Mr. Stine’s pro se filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d
1151, 1153 n.1 (10th Cir. 2007).

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 However, Mr. Stine has an extensive history of filing frivolous actions in

the federal courts. For this reason, the district court in a previous case imposed

prospective filing restrictions on any of his future pro se complaints. See R. at

183–84 (Dist. Ct. Order of Dismissal, filed Oct. 28, 2011) (referencing Stine v.

Lappin, No. 07-cv-01839-WYD-KLM, 2009 U.S. Dist. LEXIS 78373 (D. Colo.

June 25, 2009)). Moreover, 28 U.S.C. § 1915(g) of the Prison Litigation Reform

Act (the “PLRA”) provides a statutory “three-strike” rule, whereby a prisoner

who has brought three or more civil actions that have been dismissed on the

grounds that they are “frivolous, malicious, or fail[] to state a claim upon which

relief may be granted” is banned from proceeding in further actions IFP absent a

showing of “imminent danger of serious physical injury.” Mr. Stine failed to

comply with the filing restrictions, and because “[he] has filed more than three

actions in a court of the United States while he was incarcerated [i.e., implicating

§ 1915(g)] . . . that were dismissed as frivolous or for failure to state a claim,” the

district court dismissed his instant complaint and declined to permit him to

proceed IFP. See R. at 183–84. The court concluded that he had not adequately

made a showing of “imminent danger” because the record indicates that he has

access to medications other than Omeprazole “for treatment of his acid . . .

condition.” Id. at 185; see id. at 186. Moreover, it suggested that he is “able to

obtain funds when necessary from third parties” in order to pay the costs of his

medication—thus, seemingly diminishing the seriousness of his allegations. See

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id. at 186.

Subsequently, Mr. Stine filed a motion to reconsider, claiming that the

district court erroneously concluded that the alternative medications are adequate

to control his acid reflux. In addition, he attempted to rebut the district court’s

conclusion that he in fact had access to sufficient funds to pay for the

Omeprazole. The district court denied his motion, concluding (again) that he had

not complied with the previously imposed filing restrictions, and that he “fail[ed]

to assert specific fact allegations that the provision of [other available reflux

medicine]” instead of Omeprazole, would support a claim of “imminent danger”

under § 1915(g). Id. at 225 (Dist. Ct. Order Den. Mot. to Reconsider, filed Dec.

8, 2011).

On appeal, Mr. Stine makes general allegations concerning prison officials’

indifference to his medical condition, and he challenges the district court’s

conclusions regarding (1) whether he adequately set forth a claim of “imminent

danger” under § 1915(g) such that he can proceed IFP, and (2) the implications of

his failure to comply with the previously imposed filing restrictions. See Aplt.

Opening Br. at 2–2B. On November 4, 2011, we filed an order requesting Mr.

Stine to show cause as to why he has not prepaid the filing fee on appeal, in light

of the fact that he is a “three-striker” under § 1915(g) of the PLRA. He filed a

response on November 14, 2011, which avers that he has sufficiently shown that

he is in imminent danger. Attendant to the foregoing, Mr. Stine filed an

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application to proceed IFP, and we subsequently issued an order assessing fees in

the form of partial payments, pending the resolution of this appeal.

II. Discussion

Generally, the PLRA “requires all prisoners appealing decisions in civil

actions to pay the full amount of the filing fees [up front].” Strope v. Cummings,

653 F.3d 1271, 1273 (10th Cir. 2011). Indigent prisoners, however, are exempt

from this requirement, and “usually make[] an initial partial payment and then

pay[] the remainder of the filing fee in monthly installments.” Id. But where a

prisoner has previously filed three or more “action[s]” or “appeal[s]” in federal

court, which resulted in “dismiss[als] on the grounds that [they were] . . .

frivolous, malicious, or fail[ed] to state a claim upon which relief may be

granted,” 28 U.S.C. § 1915(g), the prisoner has “‘struck out’ from proceeding IFP

in a new civil action or appeal.” Strope, 653 F.3d at 1273 (quoting Smith v.

Veterans Admin., 636 F.3d 1306, 1308–09 (10th Cir. 2011)); see Kinnell v.

Graves, 265 F.3d 1125, 1127 (10th Cir. 2001) (“[T]he three strikes provision of

the ifp statute applicable to indigent prisoners[] requires so-called frequent filer

prisoners to prepay the entire filing fee before federal courts may consider their

civil actions and appeals.” (quoting White v. Colorado, 157 F.3d 1226, 1232 (10th

Cir. 1998)) (internal quotation marks omitted)). “To meet the only exception to

the prepayment requirement, a prisoner who has accrued three strikes must make

specific, credible allegations of imminent danger[.]” Hafed v. Fed. Bureau of

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Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (alteration in original) (quoting

Kinnell, 265 F.3d at 1127–28) (internal quotation marks omitted). Mr. Stine

claims that he meets this requirement. Moreover, he argues that his previous

filing restrictions should not be applied to prevent him from proceeding in this

case. We address each argument in turn.

A. Imminent Danger

Allegations in the complaint of “imminent danger” must not be “vague and

utterly conclusory.” White, 157 F.3d at 1231; see also Davis v. Rice, 299 F.

App’x 834, 835 (10th Cir. 2008) (“In making our determination, we look to the

complaint, which we construe liberally and the allegations of which we must

accept as true.” (quoting Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir.

2006)) (internal quotation marks omitted)). Indeed, for a prisoner to state a claim

of medical deliberate indifference for purposes of overcoming the PLRA’s

statutory three-strike hurdle, “he should make a ‘specific reference as to which of

the defendants may have denied him what medication or treatment for what

ailment on what occasion,’” Hafed, 635 F.3d at 1180 (quoting White, 157 F.3d at

1232), identifying the “general nature of ‘the serious physical injury’ he asserts is

imminent,” White, 157 F.3d at 1232. However, “[a]llegations of past harm do not

suffice; the harm must be imminent or occurring at the time the complaint is

filed.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

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 After reviewing Mr. Stine’s complaint, and taking his allegations as true (as

we must in this context), see id. (“[W]e must accept these claims as true now;

they may in fact be bogus[.]”), we conclude that Mr. Stine has set forth adequate

averments of imminent injuries that will occur if he is not granted relief (i.e.,

adequately pleaded imminent danger). 3 Although Mr. Stine has a history of

scurrilous and meritless filings, see infra Part II.B, the standard for assessing

allegations of “imminent danger” does not necessarily depend on the past conduct

of the prisoner, see generally Ciarpaglini, 352 F.3d at 330–31; Gibbs v. Cross,

160 F.3d 962, 966 (3d Cir. 1998) (“Congress [in enacting the ‘three strikes’

provision] was clearly concerned with continuing to afford in forma pauperis

filing status to inmates who had a history suggestive of abusing the judicial

system.”).

3
Mr. Stine has submitted three documents (with attached exhibits) to
this Court in an effort to underscore the serious nature of his physical condition
and to thereby bolster his claim of imminent danger: (1) a request for the Court to
consider certain health-related exhibits (docketed Jan. 5, 2012); (2) a request that
the Court take judicial notice of certain documents relating to his stomach
condition (docketed Feb. 2, 2012); and (3) an expert report of a Dr. Vincent T. Yu
(docketed Feb. 24, 2012), which purportedly shows the severity of his injuries.
We decline to consider these documents, however, and properly confine our
review to the averments of Mr. Stine’s complaint. Furthermore, even if
controlling legal principles did not restrict our focus to the complaint’s
averments, in light of our determination that these averments adequately depict
that Mr. Stine faces imminent danger, we would deny Mr. Stine’s request to
consider these three documents as moot. We could accord Mr. Stine no more
relief on the imminent-danger issue by consideration of the three documents than
we already have decided to provide to him.

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 Mr. Stine claims that his BOP pharmacist has repeatedly refused to fill his

prescription for Omeprazole, written by his physician, Dr. Christopher Wilson.

Mr. Stine further alleges in his complaint that he needs this medication to control

his chronic stomach condition, which, as of late, “caus[es his] throat . . . to bleed

and [is] extremely painful.” R. at 149 (Pl.’s Compl., filed Oct. 13, 2011)

(capitalization altered). He avers that he has been “advised that without the

Omeprazole [his previous] ulcers would return and the damage to the lining of

[his] esophagus could cause total and permanent loss of [his] ability to talk.” Id.

Mr. Stine seemingly claims that he has no way to access this medication (which

he claims is the only thing that can control his condition), and that the BOP has

been deliberately indifferent to his health problems. See, e.g., Aplt. Opening Br.

at 2A (“[T]o save money [the] BOP pharmacist refuses to fill the prescriptions

that have been written . . . .” (capitalization altered)); id. at 2C (“Unless this

Court grants this appeal . . . I will suffer serious injury up to death . . . .”

(capitalization altered)).

The district court rejected Mr. Stine’s claims, finding that his allegations of

imminent danger did not satisfy the requisite showing under 28 U.S.C. § 1915(g)

because “[he] has available to him, if he is indigent, Mylanta II/Maalox Plus

Liquid,” R. at 186 (citing Stine v. Fed. Bureau of Prisons, No. 11-cv-00109-

WJM-CBS (D. Colo. Sept. 15, 2011) (Inmate Req. for OTC Med. in Pl.’s Mot. for

TRO/Prelim. Inj., Dkt. # 222, at *17)), and “does not state that he recently tried

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Mylanta to see if it would help his condition,” id. However, in his complaint, Mr.

Stine clearly averred that other medications did not work. See id. at 149 (“All

other medications have failed.” (capitalization altered) (emphasis omitted)). And,

he reiterates that claim on appeal. See Aplt. Opening Br. at 2A (“Zantac [and]

Maalox[] . . . all failed to control the acid . . . .”). We give Mr. Stine the benefit

of the doubt both because he is proceeding pro se and in light of the fact that

other courts have found similar allegations of the denial of medical

accommodations sufficient to satisfy the PLRA’s “imminent danger” requirement

for proceeding IFP. See, e.g., Fletcher v. Menard Corr. Ctr., 623 F.3d 1171,

1173 (7th Cir. 2010) (“[A]n untreated wound, like an untreated acute illness,

could pose an imminent danger of serious physical harm.”); McAlphin v. Toney,

281 F.3d 709, 710–11 (8th Cir. 2002) (holding that allegations that a prisoner

needed tooth extractions to prevent a possible infection were “sufficient as a

matter of law” to make a showing of “imminent danger”); Gibbs, 160 F.3d at

965–66 (finding the complaint sufficient to satisfy the “imminent danger”

standard for a prisoner to proceed IFP where he alleged that, due to a dusty cell,

“unidentified dust particles were in his lungs and mucus, and that he is suffering

from severe headaches, watery eyes, and a change in his voice as a result”); see

also Smith v. Wang, 370 F. App’x 377, 378 (4th Cir. 2010) (finding that the

plaintiff had “sufficiently established [that] he is in imminent danger of serious

physical injury” where his doctor failed to follow up on a previous evaluation that

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suggested he could have a tumor, and where the defendants “expos[ed] him to

second-hand cigarette smoke and [did] not provid[e] reasonable medical care to

treat his medical issues, such as nose bleeds and headaches, caused by [the]

exposure”); Fuller v. Myers, 123 F. App’x 365, 367–68 (10th Cir. 2005) (finding

a prisoner’s assertion “that he currently suffers from breathing difficulties and

other respiratory problems, apparently exacerbated by the ventilation system

where he is incarcerated,” to “facially satisf[y] the threshold requirement of

showing that he is in ‘imminent danger of serious physical injury’ within the

meaning of 28 U.S.C. § 1915(g)”); cf. Brown v. Johnson, 387 F.3d 1344, 1350

(11th Cir. 2004) (finding a prisoner’s amended complaint to adequately allege

“imminent danger of serious physical injury” where the prisoner suffered from the

human immunodeficiency virus (“HIV”) and hepatitis, and his doctor stopped his

prescribed treatment, causing him to “suffer[] prolonged skin and newly

developed scalp infections, severe pain in the eyes and vision problems, fatigue

and prolonged stomach pains”); Partin v. Harmon, 113 F. App’x 717, 718 (8th

Cir. 2004) (per curiam) (“After careful review of the pleadings, we agree with

[the plaintiff] that he sufficiently alleged imminent danger of serious physical

injury . . . [where he averred that] he was exposed to raw sewage; denied

treatment for tuberculosis, prostate cancer, and colon cancer; deprived of

prosthetic support boots; denied medical care for an injured knee and ankle; and

forced to work against medical restrictions.”).

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 Taken in the light most favorable to Mr. Stine, his allegations facially

establish that he is suffering from a severe medical condition that necessitates

Omeprazole. 4 Otherwise, he will suffer (in his words) from “refl[u]x[] [of]

blood,” R. at 150 (capitalization altered), pain when he “eat[s] or talk[s],” id.,

reduced “ability to . . . swallow” without pain, id. at 152, and “permanent damage

to [his] . . . esophagus lining,” id., all because he is not being provided with

necessary medication. 5 Consequently, we grant his motion to proceed IFP on

4
To be sure, this does not necessarily end the duty (or ability) of the
district court to test the pro se plaintiff’s allegations of “imminent danger” under
the PLRA’s screening provisions. For instance, after a district court provisionally
grants IFP on the basis of a showing of imminent danger, “the defendants are
permitted to mount a facial challenge, based on full development of the facts, to
the district court’s provisional determination on the face of the complaint that [the
prisoner] satisfies the ‘imminent danger’ element.” Fuller v. Myers, 123 F. App’x
at 368 (emphasis added); see Taylor v. Watkins, 623 F.3d 483, 485 (7th Cir. 2010)
(“[W]hen a defendant contests a plaintiff’s claims of imminent danger, a court
must act to resolve the conflict. A contrary conclusion would mean that a three-
strikes plaintiff could proceed IFP whenever his allegations of imminent danger
were facially plausible, even if the defendant had incontrovertible proof that
rebutted those allegations.”); Fuller v. Wilcox, 288 F. App’x 509, 511 (10th Cir.
2008) (“If the defendants challenge the factual allegations supporting the
imminent danger exception, the district court must then determine whether these
allegations are credible.”). Moreover, nothing “prevents a district court from
discrediting factual claims of imminent danger that are ‘clearly baseless,’ i.e.,
allegations that are fantastic or delusional and rise to the level of the ‘irrational or
wholly incredible.’” Gibbs, 160 F.3d at 967 (quoting Denton v. Hernandez, 504
U.S. 25, 33 (1992)); see Kinnell, 265 F.3d at 1127–28 (noting that allegations of
“imminent danger” must be “specific” and “credible”).
5
The district court alternatively concluded that “Mr. Stine was able to
obtain funds from a family member to pay the $350.00 filing fee in full in Case
No. 11-cv-00109-WJM-CBS.” R. at 186. Consequently, it found that he “is able
to obtain funds when necessary from third parties,” diminishing his allegations of
(continued...)

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appeal. We remind Mr. Stine that he is obligated to make periodic payments until

5
(...continued)
“imminent danger.” Id. While it is true, as noted supra, that the district court
may disregard non-credible allegations in considering whether a pro se prisoner
satisfies the “imminent danger” exception, see Kinnell, 265 F.3d at 1127–28, we
believe, in this instance, that Mr. Stine’s complaint facially sets forth the reasons
that he cannot pay for his medication. Specifically, he contends that his
pharmacist “will not fill [his] prescription” until he “pay[s] off [his outstanding]
bills.” R. at 150 (capitalization altered). This explanation is not so “fantastic or
delusional,” Gibbs, 160 F.3d at 967, to necessarily rise to the level of the
improbable or facially frivolous. Indeed, Mr. Stine avers on appeal that the “BOP
immediately takes all [of his] funds” because he owes, inter alia, “court fees” and
“criminal restitution.” Aplt. Opening Br. at 2B (capitalization altered).
Moreover, he also claimed below that the only family members he has left—one
brother and one half-sister—are both ill with cancer, and therefore presumably
cannot pay his fees any longer. See R. at 199 (Pl.’s Verified Mot. to Reconsider,
filed Nov. 7, 2011). To the extent the district court believed that Mr. Stine’s
ability to pay for his medication was a fact that undermined the credibility of the
assertions in his complaint, it retained the ability to test the veracity of that fact.
See supra note 4; see also Hafed, 635 F.3d at 1179–80 (noting that allegations of
imminent danger must be credible); Taylor, 623 F.3d at 485 (“[I]t has never been
the rule that courts must blindly accept a prisoner’s allegations of imminent
danger.”); Fuller v. Myers, 123 F. App’x at 367 (“The district court should still
dismiss Fuller’s complaint through the screening process if it finds that the
complaint is frivolous, malicious, fails to state a claim, or seeks monetary relief
against an immune defendant.”); White, 157 F.3d at 1232 (“Like the district court,
we conclude Mr. White has failed to raise a credible allegation that he is in
imminent danger of serious physical harm . . . .” (emphasis added)). However,
absent a record reflecting such further judicial investigation, we are inclined to
accept the veracity of Mr. Stine’s pro se averments that he cannot pay the costs of
filling his Omeprazole prescription because his complaint suggests as much, and
nothing in the record materially undermines that conclusion. See McAlphin, 281
F.3d at 710 (“We are of course mindful of the rule that the well-pleaded
allegations of a complaint must be taken as true before the complaint can be
dismissed as insufficient on its face.” (emphasis added)). Indeed, even if it is true
that his family members provided him with the filing fees in a prior case, it is not
clear that they could or would provide him with continual funds to purchase
medication for an allegedly chronic condition.

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the full balance of his appellate filing fees are satisfied. See Fuller v. Myers, 123

F. App’x at 368 (“We GRANT Fuller leave to proceed IFP in this appeal, subject

to the requirements in § 1915(b) that his custodian make initial and periodic

payments from his prison account when funds exist to do so, until the appellate

and filing fees have been paid.”).

B. Filing Restrictions

Despite the fact that Mr. Stine can proceed IFP, he remains subject to

previously imposed filing restrictions which he does not challenge as invalid.

The district court found that Mr. Stine had not complied with the specific terms of

his previously imposed filing restrictions—entered in Stine v. Lappin, No.

07-cv-01839-WYD-KLM, 2009 U.S. Dist. LEXIS 78373, see R. at 35–37 (Rec. of

Mag. J. to Grant Defs.’ Mot. to Dismiss and Deny Pl.’s Mot. for Inj., filed June

25, 2009)—by, inter alia, (1) failing to state in his petition “whether any

defendant to this anticipated lawsuit was a party in any prior lawsuit that he

filed”; (2) “fail[ing] to submit the information he is required to provide regarding

each previous case he has filed”; and (3) failing to include in his accompanying

affidavit “all of the recitals required.” R. at 184.

This Court has repeatedly recognized the inherent right of the federal courts

to “regulate the activities of abusive litigants by imposing carefully tailored

restrictions under the appropriate circumstances.” Tripati v. Beaman, 878 F.2d

351, 352 (10th Cir. 1989) (per curiam) (quoting Cotner v. Hopkins, 795 F.2d 900,

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902–03 (10th Cir. 1986)) (internal quotation marks omitted); see, e.g., Ysais v.

Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) (“Federal courts have the

inherent power to regulate the activities of abusive litigants by imposing carefully

tailored restrictions under appropriate circumstances.”); Tripati, 878 F.2d at 352

(“A district court has power under 28 U.S.C. § 1651(a) to enjoin litigants who

abuse the court system by harassing their opponents.”); Miles v. Angelone, 483 F.

Supp. 2d 491, 495 n.3 (E.D. Va. 2007) (collecting cases and noting that “[e]very

federal circuit to consider this issue has recognized the judicial power to enjoin

abusive litigants”); see also Wolfe v. George, 486 F.3d 1120, 1125 (9th Cir. 2007)

(“[W]e impose prefiling requirements on vexatious appellate litigants in light of

decisions upholding their legitimacy.”); Cauthon v. Rogers, 116 F.3d 1334, 1337

(10th Cir. 1997) (“[The prisoner’s] filings have been repetitive, frivolous, and

malicious. We therefore impose additional restrictions on his filings in this court,

whether or not he pays a full filing fee.”); 42 Am. Jur. 2d Injunctions § 181, at

772 (2010) (“Although litigiousness alone will not support an injunction

restricting a plaintiff’s filing activities, the courts have the authority to enjoin

persons engaged in the manifest abuse of the judicial process.”).

“[A pro se litigant’s] right of access to the courts is neither absolute nor

unconditional, and there is no constitutional right of access to the courts to

prosecute . . . action[s] that [are] frivolous or malicious.” Cauthon, 116 F.3d at

1337 (quoting In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994) (per curiam))

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(internal quotation marks omitted); see also Tripati, 878 F.2d at 353 (“No one,

rich or poor, is entitled to abuse the judicial process.”). As a general matter,

injunctions imposing filing restrictions “are appropriate where (1) the litigant’s

lengthy and abusive history is set forth; (2) the court provides guidelines as to

what the litigant must do to obtain permission to file an action; and (3) the

litigant received notice and an opportunity to oppose the court’s order before it is

instituted.” Ysais, 603 F.3d at 1180 (quoting Tripati, 878 F.2d at 353–54)

(internal quotation marks omitted). In Stine v. Lappin, No. 07-cv-01839-

WYD-KLM, 2009 U.S. Dist. LEXIS 78373, the magistrate judge set forth what

unquestionably constitutes a comprehensive account of Mr. Stine’s prior

vexatious and abusive motions and filings. See R. at 9–13, 41–43; see, e.g., id. at

9 (“The court received two pleadings from Plaintiff about his erratic mental state

and desire to kill people.”); id. (referencing a “letter from Plaintiff threatening

and making scandalous allegations about the Court and defense counsel”); id. at

11 (referencing “a letter in an envelope addressed by Plaintiff,” which “contained

threatening language directed at the Court”); id. at 41–43 (detailing other actions

and motions filed by Mr. Stine which have been dismissed or denied as frivolous

or malicious). The recommendation regarding the imposition of filing restrictions

also clearly set forth detailed guidelines as to what Mr. Stine had to do in the

future in order to be in compliance with the prospective injunction. Otherwise,

“the reviewing judge shall not . . . address the merits of the complaint.” R. at 37.

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Mr. Stine was given time to file objections to the recommendation, see id. at 39,

but the district court in Stine v. Lappin nonetheless adopted the magistrate judge’s

recommendation in full and incorporated the injunction, see id. at 52 (Dist. Ct.

Order Affirm. & Adopting Rec. of Mag. J., filed Sept. 1, 2009) (No.

07-cv-01839-WYD-KLM) (“I . . . agree with Magistrate Judge Mix’s

Recommendation to impose specific restrictions on the Plaintiff should he wish to

file future pro se cases in this Court.”). In other words, the district court, in

originally adopting and issuing the underlying injunction, complied with the three

requirements derived from Tripati and Mr. Stine has provided no basis for

concluding otherwise. See Penk v. Hickenlooper, 387 F. App’x 830, 831–32

(10th Cir. 2010) (noting that “[t]he district court dismissed [the plaintiff’s]

complaint . . . because he failed to comply with [previously imposed filing]

restrictions,” and because there was no colorable basis to challenge the validity of

the injunction, the district court’s judgment “must be affirmed”).

The injunction generally prevents Mr. Stine from filing a pro se action

without setting forth information regarding prior federal lawsuits in which he was

a party and providing an affidavit in which he disclaims any intention of abusing

the judicial process. It also includes various other administrative restrictions.

This injunction is simply not unreasonable in light of Mr. Stine’s previous filings,

and he does not challenge its validity per se. Indeed, he has good reason not to;

we have consistently approved and imposed analogous filing restrictions on the

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basis of conduct much less abusive than his. 6 See, e.g., Ysais, 603 F.3d at 1181

6
Mr. Stine does suggest in a vague and conclusory fashion that the
magistrate judge who previously recommended the underlying sanctions in Stine
v. Lappin relied on facts given by untruthful witnesses, apparently undermining
the factual basis of the injunction. At the outset, we note that these vague
averments are not framed as a cognizable argument, and ordinarily that would be
sufficient for this Court to disregard them. See, e.g., Burrell v. Armijo, 603 F.3d
825, 835 (10th Cir. 2010) (“[O]n appeal, issues nominally raised but inadequately
briefed need not be considered.” (citing United States v. Kunzman, 54 F.3d 1522,
1534 (10th Cir. 1995))). In any event, assuming arguendo that these allegations
amounted to a cognizable challenge to the injunction, Mr. Stine would still face
an insurmountable procedural hurdle. The findings of the district court in Stine v.
Lappin may not be collaterally attacked in this proceeding. See Roberts v. United
States, 141 F.3d 1468, 1471 (11th Cir. 1998) (“Roberts may not now collaterally
attack the injunctions issued by the court in the criminal forfeiture case by filing a
separate civil suit.”); Sterling v. United States, 85 F.3d 1225, 1230 (7th Cir. 1996)
(Flaum, J., concurring) (“A litigant may not collaterally attack a prior judgment
by simply arguing that it is incorrect.”); United States v. Yacoubian, 24 F.3d 1, 5
(9th Cir. 1994) (noting that a government agency could not challenge the finding
in a prior order by “collaterally attack[ing] that finding . . . [in] challenging the
contempt order issued to enforce it”); cf. Celotex Corp. v. Edwards, 514 U.S. 300,
301–02, 313 (1995) (“Respondents chose . . . to collaterally attack the [Florida]
Bankruptcy Court’s . . . [i]njunction in the federal courts in Texas. This they
cannot be permitted to do without seriously undercutting the orderly process of
the law.”); Alley v. U.S. Dep’t Health and Human Servs., 590 F.3d 1195, 1203
(11th Cir. 2009) (“[A]n injunction issued by one court against the disclosure of
information may not be collaterally attacked in another court in a FOIA lawsuit
seeking disclosure of that information.”). Furthermore, even if it were
appropriate to consider such an attack, construing Mr. Stine’s averments with
maximum liberality, we simply cannot conclude that they explain how the
magistrate judge based her recommendation on anything but credible and
substantial evidence regarding Mr. Stine’s “threaten[ing] and harass[ing]”
conduct, his “fail[ure] to comply with . . . Court Orders,” and his “malicious[]”
use of the court’s process. R. at 28. All of the foregoing examples of his conduct
constituted the basis for the injunction, and Mr. Stine offers absolutely nothing
credible indicating that the magistrate judge was incorrect in relying on them, or
that we should otherwise be counseled toward a different conclusion in this
appeal.

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(imposing “limited restrictions” upon the appellant “with respect to further pro se

filings with th[e] court” including, inter alia, a requirement that he provide “[a]

list of all appeals or original proceedings filed concerning [the same subject

matter,] . . . [a] notarized affidavit, . . . which recites the issues he seeks to

present . . . [and an assertion] that the legal arguments being raised are not

frivolous or made in bad faith”); Cauthon, 116 F.3d at 1337 (imposing

restrictions, where the plaintiff’s previous filings were “repetitive, frivolous, and

malicious,” including the requirement that he “[f]ile a petition with the clerk of

th[e] court requesting leave to file a pro se action[,] . . . [and list] all lawsuits

currently pending or previously filed with th[e] court, including the name, case

number, and citation if applicable”); Ketchum v. Cruz, 775 F. Supp. 1399,

1406–07 (D. Colo. 1991) (setting forth filing restrictions including the

requirement that further pro se complaints include a petition setting forth “a list

of all lawsuits in the United States District Court for the District of Colorado, the

[Tenth Circuit], the United States Supreme Court, and state courts in which [the

plaintiff] was or is a party[, and] the name and citation of each case”), aff’d 961

F.2d 916, 921 (10th Cir. 1992) (approving the foregoing restrictions because they

“permit[] . . . access to the court when represented by an attorney admitted to

practice both in Colorado and before the district court and spell[] out with

precision and clarity how plaintiff can obtain leave to file actions pro se, should

he desire to do so”). Nor does he seriously challenge the district court’s

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conclusion that he is in violation of the filing restrictions, or the legal propriety of

its sua sponte dismissal of his complaint on that basis. Cf. Greenlee v. U.S.

Postal Serv., 351 F. App’x 263, 265–66 (10th Cir. 2009) (noting the district

court’s sua sponte dismissal of a pro se plaintiff’s complaint, and finding that “he

present[ed] no argument of error in the district court’s conclusion that he failed to

comply with the restrictions in filing his . . . complaint”).

But while Mr. Stine does not challenge the validity of the underlying

injunction, he suggests “that [it] is totally impossible for [him] to comply” with it

because the “BOP immediately takes all funds sent to [him] because [he owes a

substantial amount in prior court fees and restitution],” Aplt. Opening Br. at 2B

(capitalization altered), and the sheer expense of obtaining the required

information from his previous court filings would be prohibitive in his endeavor

to file future lawsuits, see Aplt. Supp. to Opening Br. at 2. The district court

noted, in denying Mr. Stine’s motion to reconsider—which raised the issue of his

financial constraints—that “the Court is not responsible for Mr. Stine’s inability

to comply with the restrictions,” R. at 224, and nothing in this case counsels the

application of a waiver, id. at 225. We agree for two salient reasons.

First, to the extent that Mr. Stine is challenging the terms or scope of the

injunction, he cannot prevail on that claim here. See supra note 6. A previously

imposed injunction generally may not be collaterally attacked at the time of its

enforcement. See, e.g., Schildhaus v. Moe, 335 F.2d 529, 530 (2d Cir. 1964)

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(Friendly, J.) (“The injunction, whether right or wrong, is not subject to

impeachment in its application to the conditions that existed at its making.”

(quoting United States v. Swift & Co., 286 U.S. 106, 119 (1932)) (internal

quotation marks omitted)); cf. Langton v. Hogan, 71 F.3d 930, 935 (1st Cir. 1995)

(“A judgment that is entered with prejudice under the terms of a settlement,

whether by stipulated dismissal, a consent judgment, or a confession of judgment,

is not subject to collateral attack by a party or a person in privity, and it bars a

second suit on the same claim or cause of action.”); V.T.A., Inc. v. Airco, Inc.,

597 F.2d 220, 224 (10th Cir. 1979) (“A judgment is not void merely because it is

or may be erroneous.”); SEC v. Bilzerian, --- F. Supp. 2d ----, 2011 WL 4537891,

at *3 (D.D.C. Oct. 3, 2011) (“[The defendant] cannot, almost a decade later,

challenge the July 19 Injunction on grounds that he could have raised at the time

of his first appeal but chose not to do so then, nor can he raise the same challenge

that he raised in his first appeal that was previously rejected by the Court of

Appeals.”). 7

7
The Federal Rules of Civil Procedure, however, do provide Mr. Stine
with a procedural mechanism to seek modification (or even dissolution) of the
injunction, but he must implement it before the court that originally issued the
injunction. See Fed. R. Civ. P. 60(b)(5) (noting that “the court may relieve a
party . . . from a final judgment[ or] order[ where] . . . applying it prospectively is
no longer equitable”); see also 11A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2961, at 391–94 (2d ed. 1995)
(“Th[e] continuing responsibility of the issuing court over its decrees is a
necessary concomitant of the prospective operation of equitable relief. . . . [A]
(continued...)

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 And, second, we are confident in the ability of the district court to apply

the injunction equitably, considering the individual circumstances of Mr. Stine.

Indeed, even in light of Mr. Stine’s continual frivolous and harassing litigation

that quite understandably has tested the patience of the federal courts, the district

court has repeatedly and thoughtfully considered his claims. See, e.g., Stine v.

Allred, No. 11-cv-00109-WMJ-CBS, 2011 U.S. Dist. LEXIS 98289, at *12–15,

48–49 (D. Colo. Aug. 25, 2011) (considering Mr. Stine’s request for injunctive

relief on the grounds that he has not received adequate dental care); Stine v. Fed.

Bureau of Prisons, No. 10-cv-01652-BNB, 2010 U.S. Dist. LEXIS 93573, at *2–3

(D. Colo. Aug. 17, 2010) (“Although Mr. Stine is subject to . . . filing restrictions

. . . , the Court directed . . . the warden where Mr. Stine currently is housed[] to

provide a statement to the Court addressing the current provisions being made to

assure that Mr. Stine is not in imminent danger of serious physical harm . . . .”);

Stine v. Davis, No. 10- 2010 U.S. Dist. LEXIS 89065, at *3–4 (D. Colo. July 28,

2010) (considering Mr. Stine’s claims alleging “inadequate” clothing).

Moreover, the injunction plainly permits the district court, in considering

7
(...continued)
court must never ignore significant changes in the law or circumstances
underlying an injunction . . . .” (emphasis added) (footnote omitted)). Of course,
it must be emphasized that “modification is not a means by which a losing litigant
can attack the court’s decree collaterally.” 11A Wright, Miller & Kane, supra §
2961, at 394 (citing cases and noting that “the availability of modification is not a
substitute for a direct appeal from a judgment”).

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whether to allow Mr. Stine to proceed, to inquire into “whether the complaint is

frivolous,” and it suggests that strict non-compliance with the administrative

restrictions—i.e., a technicality—would not necessarily operate to bar a legitimate

future claim. See R. at 37 (noting only that the “failure to comply with the

procedures and principles mandated by the injunction shall be sufficient grounds

for denying the petition”). Thus, after a thorough review of the record, we cannot

say that the district court’s application of the filing restrictions—in dismissing

Mr. Stine’s complaint without prejudice—in this case resulted in inequity, or that

it otherwise constitutes an abuse of discretion. Cf. ClearOne Commc’ns, Inc. v.

Bowers, 651 F.3d 1200, 1210 (10th Cir. 2011) (“We review a district court’s

determination of civil contempt for abuse of discretion.” (quoting United States v.

Ford, 514 F.3d 1047, 1051 (10th Cir. 2008)) (internal quotation marks omitted));

Penk, 387 F. App’x at 831 (“We review the district court’s decision to issue such

an injunction for abuse of discretion . . . .”); Tripati, 878 F.2d at 354 (“We

emphasize that the district court’s discretion in tailoring appropriate conditions

under which [the plaintiff] may commence and prosecute future lawsuits is

extremely broad and that we will not disturb that court’s choice of requirements

absent abuse of that discretion.”). For that reason, the district court’s decision

should be upheld.

III. Conclusion

For the reasons set forth above, we GRANT Mr. Stine’s request to proceed

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IFP on appeal. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

However, we AFFIRM the district court’s order dismissing his complaint without

prejudice. Despite the fact that Mr. Stine may proceed without prepayment of

costs, he is reminded that he is obligated to make partial payments consistent with

this Order. 8

Entered for the Court

JEROME A. HOLMES
Circuit Judge

8
We deny Mr. Stine’s motion to expedite the case (as well as his
repeated requests to the same effect in other filings) as moot.

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