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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JAMES JOSEPH OWENS-EL,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Nos. 02-1281, 02-1296, 02-1297, 02-1299, 02-1300, 02-1301,
02-1302, 02-1317
49 Fed. Appx. 247
October 18, 2002, Filed
NOTICE: RULES OF THE TENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Before EBEL, LUCERO and
O'BRIEN, Circuit Judges.
Appellant
James Joseph Owens-El appeals the dismissal of eight separate cases filed in the
federal district court for the District of Colorado. Two of these cases were
dismissed for appellant's failure to provide a clear and concise statement of
his claims (Case Nos. 02-1281 & 02-1317); the remaining six were dismissed
because of appellant's failure to make his initial partial payment of four
dollars or show cause why he could not pay (Case Nos. 02-1296, 02-1297,
02-1299, 02-1300, 02-1301 & 02-1302). Because we find that appellant has
already accumulated three strikes for filing frivolous actions or appeals in
the courts of the United States, we DENY his motions to proceed in forma
pauperis in all of his civil appeals. In Case No. 02-1317, to the extent that
appellant has asserted habeas claims, we DENY a certificate of appealability
under 28 U.S.C. § 2255 and AFFIRM the district court's dismissal of any 28
U.S.C. § 2241 claims.
The filing
fees in appellant's civil appeals have not been paid. On July 2, 2002, the
United States District Court for the District of Colorado denied appellant's motion
for leave to proceed in forma pauperis on appeal in Case No. 02-1281. On July
17, 2002, it denied appellant's motion for leave to proceed in forma pauperis
on appeal in Case Nos. 02-1296, 02-1297, 02-1299, 02-1300, 02-1301, and
02-1302. On July 25, 2002, it denied appellant's motion for leave to proceed in
forma pauperis on appeal in Case No. 02-1317. Under the Prison Litigation
Reform Act of 1995 ("PLRA"), prisoners must pay the full amount of
the filing fee. See 28 U.S.C. § 1915(b)(1). Appellant now moves this court to
grant him leave to proceed in forma pauperis.
The "three strikes"
provision of the Prisoner Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g),
provides that
[*249]
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility, brought
an action or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious
physical injury.
Under this provision, we find that appellant, who is a federal prisoner
at the Medical Center for Federal Prisoners at Springfield, Missouri, has
accumulated three strikes.
In 1999, appellant's § 1983
action was dismissed as frivolous by a federal court in the District of
Maryland. Owens v. Maryland, D.C. No. 98-CV-3943-JFM (D. Md. Dec. 16, 1998
& Feb. 1, 1999), aff'd, 181 F.3d 90 (4th Cir. 1999). This constitutes his
first strike.
In March 2001, appellant's
appeal of the district court's dismissal of his § 1983 action was also
dismissed as frivolous. Owens v. United States, 6 Fed. Appx. 777, 777-78 (10th
Cir. 2001), 2001 U.S. App. LEXIS 5208. This constitutes his second strike.
Finally, in August 2001, the
Tenth Circuit dismissed Owens-El's appeal from the district court's dismissal
of his 28 U.S.C. § 2241 habeas action. Owens-El
v. Pugh, 16 Fed. Appx. 878, 879 (10th Cir. 2001), 2001 U.S. App. LEXIS 17287, cert.
denied, 122 S. Ct. 1969 (2002). The court held that appellant "failed to
demonstrate the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal." Id. Although
frivolous habeas petitions normally may not be counted as strikes under the
PLRA, an action that is filed as a habeas petition, but which actually
challenges conditions of confinement, may be counted. See Jennings v. Natrona County Det. Ctr. Med.
Facility, 175 F.3d 775, 779 & n.2 (10th Cir. 1999) (a habeas petition more
appropriately construed as a § 1983 action is "countable as a
strike"). In Owens-El v. Pugh, the district court dismissed Owens-El's
claims "under 28 U.S.C. § 1915(e)(2)(B), concluding that they were
factually frivolous." Owens-El v. Pugh, 16 Fed. Appx. at 879. The Tenth Circuit affirmed the
frivolity of the claims and held that the action was more properly construed as
a civil rights action because it challenged the conditions of confinement. Id.
Thus, the dismissal of this appeal as frivolous constitutes the third strike
against Owens-El.
Based on
appellant's three strikes under § 1915(g), we DENY his motion to proceed in
forma pauperis in Case Nos. 02-1281, 02-1296, 02-1297, 02-1299, 02-1300,
02-1301, and 02-1302. Consequently, appellant
shall show cause in writing within twenty days of the date of this order why 1)
the appeal should not be dismissed for failure to prepay the entire filing fees
as required by 28 U.S.C. § 1915(g), or 2) why the provisions of the Prison
Litigation Reform Act do not apply to this proceeding.
The three strikes provision of 28 U.S.C. § 1915(g) does not
apply to appeals from the dismissal of habeas petitions. Jennings, 175 F.3d at 779. Case No. 02-1317
was docketed as a § 2241 habeas action; however, the district court concluded
that the complaint improperly alleged additional claims under §§ 2255 and 1983.
(Order of June 11, 2002 at 1-3.) It dismissed the case because Owens-El failed
to comply with the magistrate judge's order to assert his claims clearly and
concisely and provide specific factual support for each claim. (Id. at 3.)
Appellant argues on appeal that the district court lied in its order about
his [*250] failure to provide a clear, concise statement of his case in his
amended pleading. (Aplt. Br. at 3.) This argument is frivolous. To the extent
Owens-El has alleged any habeas claims under § 2255, we DENY a certificate of appealability and
dismiss those claims. We AFFIRM the district court's dismissal of appellant's §
2241 claims for failure to state a claim.
All other motions filed by appellant, including his motion to
appoint counsel and motion for supersedeas bond, are DENIED. Appellant has
accumulated three strikes pursuant to § 1915(g) and may not bring any civil
action or appeal in forma pauperis unless he "is under imminent danger of
serious physical injury." 28
U.S.C. § 1915(g).
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
* After
examining appellant's brief and the 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) and 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. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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