FILED
United States Court of Appeals
Tenth Circuit
June 19, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JACOB BARRETT,
Plaintiff - Appellant,
No. 12-7010
v. (D.C. No. 6:11-CV-00423-RAW-SPS)
(E.D. Okla.)
RANDY WORKMAN, Warden,
Oklahoma State Penitentiary; DEBBIE
MORTON, Deputy Director,
Oklahoma Department of Corrections;
CHAD BROWN, Case Worker,
Oklahoma State Penitentiary, TERRY
CRENSHAW, Assistant Warden,
Oklahoma State Penitentiary; TRACY
DAVIS, Unit Manager, Oklahoma
State Penitentiary; SGT. MAJOR, Unit
Supervisor, Oklahoma State
Penitentiary; LT. JANE DOE, Unit
Supervisor, Oklahoma State
Penitentiary; MR. APALA, Case
Worker, Oklahoma State Penitentiary;
DAVID ORMAN, Mailroom
Administrator, Oklahoma State
Penitentiary; ERIK TAYLOR, Case
Worker, Oklahoma State Penitentiary;
OKLAHOMA DEPARTMENT OF
CORRECTIONS,
Defendants - Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Plaintiff-Appellant, Jacob Barrett, an Oregon prisoner incarcerated in New
Mexico and proceeding pro se, appeals the district court’s denial of his motion to
proceed without prepayment of filing fees, claiming that he is not subject to the
“three strikes” provision in the Prisoner Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g), and, alternatively, that he falls under the exception to the “three
strikes” rule because he faces “imminent danger of serious physical injury,” id.
Although the order being appealed from denied Mr. Barrett in forma pauperis
(“IFP”) status in the district court, he also must obtain that status here. We
conclude that he is barred by § 1915(g), deny him leave to proceed IFP, and
dismiss his appeal.
Background
Mr. Barrett initiated this action in 2010, bringing suit in the District of
Oregon against Oregon and Oklahoma officials. Aplt. Br. 2. The court dismissed
the suit against the Oregon defendant and dismissed the complaint, leaving open
**
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 appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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the opportunity to re-file against the Oklahoma defendants in the Eastern District
of Oklahoma. Id. Mr. Barrett re-filed in the Eastern District of Oklahoma, and
that court denied his motion to proceed IFP pursuant to 28 U.S.C. § 1915(g).
Aplt. App. 21-22. He filed a motion for reconsideration, id. at 23-27, and before
receiving a response from the district court, he filed a notice of appeal, id. at 28.
The district court subsequently denied his motion to reconsider, id. at 30-32, but
he did not amend his notice of appeal.
This court filed an order to show cause on February 24, 2012, challenging
Mr. Barrett’s failure to pay fees in advance. He filed a response on March 2,
2012. We consider that issue, resolve the issue against him, deny IFP, and
dismiss his appeal.
Discussion
As a threshold matter, Mr. Barrett did not appeal the district court’s denial
of his motion for reconsideration as he filed this appeal before the court issued an
order. Id. at 23-27, 28. Therefore, we do not have jurisdiction to review that
district court decision. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d
1282, 1295 (10th Cir. 2008). We will review, however, the district court’s
original denial of Mr. Barrett’s motion to proceed IFP.
Mr. Barrett admits that one of his prior cases, Barrett v. Cook, No. 02-CV-
515-TC (D. Or. May 10, 2002) counts as a strike. We agree that this case counts
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as strike one.
Second, Barrett v. Belleque, No. 05-CV-1774 (D. Or. Feb. 23, 2006), was
dismissed as frivolous and for failure to state a claim. Though Mr. Barrett argues
that the law has changed since this case, and that a subsequent case that he filed
on similar facts was found by the Ninth Circuit to actually state a claim for relief,
Aplt. Br. 7; see Barrett v. Belleque, 544 F.3d 1060 (9th Cir. 2008), his arguments
fail. Though the subsequent case may have been based on similar facts, it did not
change the holding in the previous case that Mr. Barrett had failed to state a
claim—a situation covered expressly by § 1915(g). This case is strike two.
Finally, in his response to our order to show cause, Mr. Barrett claims that
Barrett v. Williams, No. 10-CV-439 (D. Or. June 16, 2010), does not count as a
strike because the court only dismissed claims against the Oregon defendant for
failure to state a claim, and allowed the case to be transferred to Oklahoma—the
precursor to this action. See Response to Order to Show Cause, Barrett v.
Workman, No. 12-7010, at 3 (10th Cir. Mar. 2, 2012) (hereinafter “Response to
Order to Show Cause”). Based on the recent case Thomas v. Parker, 672 F.3d
1182 (10th Cir. 2012), a mixed petition, dismissed in part for failure to state a
claim, can count as a strike for purposes of the PLRA. Id. at 1184. Therefore,
this was Mr. Barrett’s third strike.
Alternatively, Mr. Barrett argues that even if he does have three strikes
against him, he has alleged facts to meet the imminent danger exception to
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§ 1915(g). Aplt. Br. 9-13. We disagree. Mr. Barrett argues that preventing him
from having access to the courts based on the three-strike rule will make him an
easy target, placing him in imminent danger of having his rights violated by
prison officials without redress. Id. at 10-12. He also argues that he was
physically retaliated against for bringing suits against prison officials, had legal
documents destroyed, and was labeled a “snitch.” See Response to Order to Show
Cause at 4-5. This circuit has stated that to meet the imminent danger exception,
an appellant is required to make “specific, credible allegations of imminent-
danger of serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d
1172, 1179 (10th Cir. 2011). This requires that the prisoner show imminent
danger “at the time he filed his complaint.” Id. Mr. Barrett has failed to do so
here. Instead, he alleges things that have happened in the past, or that he fears
will happen in the future. This does not fulfill the imminent-danger requirement.
The order to show cause is discharged, we DENY Mr. Barrett’s motion to
proceed IFP, and DISMISS the appeal. Appellant is ordered to immediately pay
the filing fee in full.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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