FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2013
Elisabeth A. Shumaker
Clerk of Court
KENDALL TRENT BROWN,
Plaintiff-Appellant,
v. No. 12-3257
(D.C. No. 5:07-CV-03062-SAC)
GLEN KOCHANOWSKI; (FNU) (D. Kan.)
NALLS; RANDALL MAIN; TINA
MILLER; (FNU) AUGUSTINE;
DEBORAH PRICE,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.
Plaintiff-appellant Kendall Trent Brown is a prisoner of the State of Kansas
appearing pro se. He is currently housed at Hutchinson Correctional Facility in
Hutchinson, Kansas. Defendants-appellees include Sheriff Kochanowski of Saline
County, Kansas, and several employees at the Saline County Detention Center.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Brown appeals from the district court’s grant of summary judgment to defendants on
his federal claims that they mishandled his legal mail in violation of his First
Amendment rights and his state-law claim that they fraudulently charged him postal
fees on mail that was not sent.
We dismiss the appeal as frivolous under the Prison Litigation Reform Act
(PLRA), 28 U.S.C. § 1915(e)(2) (“Notwithstanding any filing fee . . . that may have
been paid, the court shall dismiss the case at any time if the court determines that—
. . . (B) the . . . appeal—(i) is frivolous . . . .”). We also assess a strike under PLRA,
28 U.S.C. § 1915(g). And as explained below, Brown accumulated two strikes under
PLRA in 2008. As a result, Brown has now struck out from proceeding in forma
pauperis (ifp) in civil actions or appeals in federal court in the future unless he can
make credible allegations that he is in imminent danger of serious physical injury.
I. Background
Brown filed this civil rights suit under 42 U.S.C. § 1983, seeking damages for
alleged violations of his constitutional rights by the Saline County Jail, Saline County
Sheriff Glen Kochanowski, and Officer Nalls, the “correction[s] mail lady,”
R., Vol. I, at 23. He alleged that these defendants mishandled his legal mail and
engaged in postal fraud in and around November 2006, while he was housed at the
Saline County Detention Center. The district court ordered Brown to show cause
why his complaint should not be dismissed for failure to state a claim. Brown filed
an amended complaint, which again named Sheriff Kochanowski and Officer Nalls as
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defendants, but which no longer named the Saline County Jail. He also filed several
supplements to his initial and amended complaints.
The district court reviewed Brown’s complaint, as supplemented and amended,
and dismissed it prior to service for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B). Brown appealed. We affirmed the dismissal in part, but we held
that Brown’s allegations that defendants had refused to process his outgoing mail,
had monitored his outgoing mail in a discriminatory manner, had monitored his
outgoing mail as punishment or discipline, and had prohibited him from taking his
mail with him to Larned State Hospital, stated claims for a violation of his First and
Fourteenth Amendment rights. Brown v. Saline Cnty. Jail, 303 F. App’x 678, 682-84
(10th Cir. 2008). We did not consider Brown’s state-law claim for postal fraud,
which had not yet been addressed by the district court. Id. at 684. We remanded the
case for additional proceedings. Id. at 685.
On remand, Brown moved to amend his complaint to add Captain Augustine,
Program Director Tina Miller, and Pod Officers Main and Price as defendants. The
district court granted the motion, and Brown filed a second amended complaint,
which was served on all of the defendants. R., Vol. I, at 233. (The court denied
Brown’s motion to file a third amended complaint because he sought to add new
claims that were not based on the same core operative facts and were time-barred.)
In due course, defendants moved for summary judgment under Fed. R. Civ. P. 56(a),
arguing that the evidence showed that Brown’s mail was sent, that his allegations
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were speculative, that he had failed to exhaust his administrative remedies, that his
constitutional rights were not violated, and that he had no proof of fraud. Brown
filed a response in opposition and memorandum in support.
The district court granted summary judgment to defendants in a thorough,
thirty-eight page Memorandum and Order. R., Vol. II, at 723-60. The court
reviewed the legal standards to be applied under Rule 56. Id. at 731-32. The court
also reviewed its duties toward Brown, as a pro se litigant. Id. at 732-33. The court
reviewed the elements Brown was required to prove for his First Amendment claims
related to defendants’ handling of his mail, id. at 743-45, and the elements he was
required to prove for his state-law fraud claim, id. at 757. But the court pointed out
that Brown had “not file[d] any affidavits or submit[ted] any other admissible
evidence to refute the evidence filed by the defendants in support of their motion for
summary judgment.” Id. at 733-34. The court considered the evidentiary value of
Brown’s deposition testimony. See id. at 739 n.2, 740-41, 743, 745-46, 748-49,
752-59.
The district court rejected defendants’ argument that Brown had not shown a
material factual dispute as to whether he had exhausted his administrative remedies.
Id. at 735-41. But the district court granted summary judgment to all of the
defendants in their official capacities because Brown’s request for monetary relief
was barred by their Eleventh Amendment immunity. Id. at 741 n.3. The court also
granted summary judgment to Officer Main in his individual capacity because Brown
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conceded in his deposition and his summary judgment pleadings that he had not
alleged, and had no proof to support, any wrongdoing by Main. Id. at 743. The court
also granted summary judgment to Sheriff Kochanowski, Tina Miller, and Captain
Augustine because Brown had “conceded he lack[ed] a factual basis for alleging their
individual responsibility on [his] claims.” Id. at 754. And the court granted
summary judgment to Officer Price because Brown made only a conclusory assertion
that she had mishandled one letter and failed to provide any specific factual support
for his claim against her. Id. at 754-55.
The district court otherwise explained why Brown’s scant evidence that the
remaining defendants mishandled his mail was “little more than speculation and bald
assertions,” id. at 746, was “too speculative, argumentative and conclusory for a
rational fact finder to find in his favor,” id. at 748, was “only his suspicions,
speculation and bald assertions,” Id. at 749-50, was lacking “any specific arguments
or proof,” id. at 752, was “not based on personal knowledge,” id. at 752-53, was
“inadmissible hearsay . . . [or] his own opinion and naked speculation,” id. at 753,
and did not constitute a “meaningful response to any of the defendants’ arguments,”
id. at 756.
The district court also granted summary judgment to defendants on Brown’s
state-law fraud claim. Id. at 756-59. The court reviewed Brown’s deposition
testimony interpreting his inmate account summary and why he thought it showed
fraudulent charges. Id. at 758-59. The court concluded that Brown
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presume[d] there [we]re fraudulent activities behind the voided
transactions without offering any proof or reasonable inferences to
support his naked conclusions. It is nothing but conjecture for the
plaintiff to think that the voided transactions mean his mail was never
sent, or that his account was never credited for the voided transactions,
or that his account was assessed postage charges for mail which was
never sent.
Id. at 759. Brown appeals.
II. Issues on Appeal and Discussion
“We review the grant of summary judgment de novo applying the same
standard as the district court . . . .” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “In applying this standard, we view the
factual record and draw all reasonable inferences therefrom most favorably to the
nonmovant.” Adler, 144 F.3d at 670 (citing, inter alia, Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Because Brown appears pro se, we
hold his pleadings “to less stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
At summary judgment, “[a]n issue is ‘genuine’ if there is sufficient evidence
on each side so that a rational trier of fact could resolve the issue either way.” Adler,
144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“An issue of fact is ‘material’ if under the substantive law it is essential to the proper
disposition of the claim.” Id. (citing Liberty Lobby, 477 U.S. at 248), “A motion for
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summary judgment that is supported by affidavits or other materials provided under
oath gives the adverse party notice that summary judgment is possible; the adverse
party must respond with affidavits or other evidence to show a genuine issue of
material fact.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[T]he facts
must be identified by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Adler, 144 F.3d at 671.
The district court held that Brown failed to produce any specific, admissible
evidence in support of his claims, but relied on speculation, opinion, bald assertions,
conjecture, and hearsay. Brown makes numerous arguments on appeal, but they are
conclusory. To summarize them, he argues that the defendants committed perjury,
that he did not have enough time to respond to their summary judgment motion or
enough finances to produce witness testimony, that the district court failed to
consider the full record of this case. and that counsel should have been appointed for
him. But he does not explain or describe any evidence supporting any of his claims
against any of the defendants, let alone point to where that evidence may be found in
the record.
We conclude that this appeal is frivolous because Brown fails to point to any
specific, admissible evidence, or even explain what specific, admissible evidence he
presented, to withstand defendants’ motion for summary judgment. His appeal thus
“lack[s] an arguable basis in law,” which “is the equivalent of . . . frivolous[].”
Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) ( per curiam) (citing Neitzke v.
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Williams, 490 U.S. 319, 325 (1989) for the definition of legal frivolousness);
cf. White v. Gen. Motors Corp., Inc., 908 F.2d 669, 675 (10th Cir. 1990) (holding that
a counseled plaintiff’s appeal challenging district court’s grant of summary judgment
to defendant was “a clear and obvious loser” due to that plaintiff’s “inability to
produce any evidence”).
We have long held that “[a] pro se litigant . . . must follow the same rules of
procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917
(10th Cir. 1992). Brown’s conclusory arguments on appeal do not relate to his
evidentiary burden under Rule 56(a), and his arguments are utterly insufficient to
overturn the district court’s grant of summary judgment to defendants. He is not
excused based on his pro se status from pointing us to his evidence, and he failed
even to explain or describe any evidence in the record supporting his claims.
Cf. Hall, 935 F.2d at 1110 (“[A] pro se plaintiff requires no special legal training to
recount the facts surrounding his alleged injury, and he must provide such facts if the
court is to determine whether he makes out a claim on which relief can be granted.”).
III. Strikes under PLRA, 28 U.S.C. § 1915(g)
“Congress enacted the Prison Litigation Reform Act of 1995 (PLRA) . . . in
1996 in the wake of a sharp rise in prisoner litigation in the federal courts. . . .”
Woodford v. Ngo, 548 U.S. 81, 84 (2006). “The PLRA contains a variety of
provisions designed to bring this litigation under control.” Id. One of these
provisions is 28 U.S.C. § 1915(g), which Congress added “to revoke, with limited
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exception, in forma pauperis privileges for any prisoner who has filed three or more
lawsuits that fail to state a claim, or are malicious or frivolous.” Skinner v. Switzer,
131 S. Ct. 1289, 1299-1300 (2011).
“Under the PLRA, prisoners obtain a ‘strike’ against them for purposes of
future ifp eligibility when their ‘action or appeal in a court of the United States . . .
was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted . . . .’” Hafed v. Fed. Bureau of Prisons, 635 F.3d
1172, 1176 (10th Cir. 2011) (quoting § 1915(g)) (alteration in original). “[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.” Id. (alteration in original) (internal
quotation marks omitted). The only exception to this rule is when “the prisoner is
under imminent danger of serious physical injury.” § 1915(g). To meet this
exception, “a prisoner who has accrued three strikes must make specific, credible
allegations of imminent danger.” Hafed, 635 F.3d at 1176 (alteration omitted)
(internal quotation marks omitted).
In 2007, Brown filed three civil rights cases in federal court. We have
reviewed them and conclude that Brown had two clear strikes under Tenth Circuit
law before he filed the current appeal in this court.
Brown’s first strike results from the dismissal in Brown v. Kochanowski,
D.C. No. 5:2007-cv-03264 (D. Kan.), a civil rights case he filed on October 17, 2007,
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while he was a prisoner of the State of Kansas. On May 23, 2008, the district court
dismissed the complaint prior to service for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii). Kochanowski, D.C. No. 5:2007-cv-03264, Doc. 8. A separate
judgment was also entered on May 23, 2008. Id., Doc. 9. Brown did not appeal, so
this dismissal ripened to be counted as a strike when his time to file a direct appeal
expired. See Hafed, 635 F.3d at 1176. He named only state defendants in this suit,
so it ripened to be counted against his eligibility to bring other civil actions or
appeals ifp on June 23, 2008. See Fed. R. App. P. 4(a)(1)(A).
Brown’s second strike results from the dismissal in Brown v. Saline County
Board of County Commissioners, D.C. No. 5:2007-cv-03265 (D. Kan.), a second civil
rights suit he filed on October 17, 2007, while he was a prisoner of the State of
Kansas. On May 23, 2008, the district court dismissed the complaint prior to service
for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Saline Cnty. Bd. of
Cnty. Comm’rs, D.C. No. 5:2007-cv-03265, Doc. 6, at 2. A separate judgment was
also entered on May 23, 2008. Id., Doc. 7. Brown did not appeal. But because he
named the Post Office as a defendant in this suit, the strike ripened to be counted
against his eligibility to bring other civil actions or appeals ifp on July 22, 2008.
See Fed. R. App. P. 4(a)(1)(B).
Brown’s third strike arises from our dismissal of his current appeal as
frivolous. It will ripen to be counted against his eligibility to bring other civil actions
or appeals ifp in federal court when the appellate process has been completed, either
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by the Supreme Court’s denial or dismissal of a petition for certiorari, if Brown files
one, or when the time to file a petition for certiorari has expired, if he does not.
See Hafed, 635 F.3d at 1175; see also S. Ct. R. 13.1 (providing ninety days from
entry of court of appeals’ judgment to file petition for certiorari).
The appeal is dismissed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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