Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2025 _________________________________ Christopher M. Wolpert Clerk of Court FRANKIE JOE BROWN,
Plaintiff - Appellant,
v. No. 25-6018 (D.C. No. 5:24-CV-00916-R) FNU SHERRY; FNU WESTBROOKS; (W.D. Okla.) K. GOLDEY,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Frankie Joe Brown, a federal inmate, filed a pro se complaint against
federal officers, alleging a violation of his Eighth Amendment rights under
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). 1 The magistrate judge granted Brown’s motion to proceed in
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Brown proceeds pro se, we liberally construe his filings, but we do not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (footnote continued) Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 2
forma pauperis (IFP) and ordered him to pay an initial partial filing fee. Brown
failed to pay the fee and the magistrate judge recommended that the complaint
be dismissed. The district court accepted the recommendation and dismissed the
complaint without prejudice. After the district court entered final judgment,
Brown filed a motion requesting appointment of counsel and for the district
court to send his case to the appeals court. The district court denied his motion
and Brown timely filed a notice of appeal. Brown also filed a motion in the
district court to proceed IFP on appeal, which the district court denied because
it found the appeal was not taken in good faith under 28 U.S.C. § 1915(a).
Brown now appeals the district court’s order denying him counsel and
requests leave to proceed IFP. Exercising our jurisdiction under 28 U.S.C.
§ 1291, we deny Brown’s request to proceed IFP and affirm the district court’s
dismissal.
BACKGROUND
In the district court, Brown alleged that staff members at a federal
correctional institution provided him inadequate medical care in violation of
the Eighth Amendment. The magistrate judge granted Brown’s motion to
proceed IFP and held that he was not required to fully prepay the $350 filing
(10th Cir. 2009). Though the district-court docket identified Brown’s claims as arising under 42 U.S.C. § 1983, which applies to state actors, his complaint appears to asset claims against federal defendants only. So his claims are brought under Bivens. See Kinnell v. Graves, 265 F.3d 1125, 1127 n.1 (10th Cir. 2001). 2 Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 3
fee. See 28 U.S.C. § 1915(a). But pursuant to 28 U.S.C. § 1915(b)(1), the
magistrate judge held that Brown was still required to pay the $350 filing fee in
installments, with an initial $28.84 payment due within the month. At Brown’s
request, the magistrate judge extended the deadline for the initial payment by a
month. Brown failed to pay the fee by the extended deadline.
The magistrate judge entered a report recommending that the district
court dismiss Brown’s complaint without prejudice for failure to pay the initial
payment and for failure to comply with the court’s orders. Brown timely
objected, arguing that the merits of his claims outweighed his failure to pay the
initial payment. The district court overruled Brown’s objections, adopted the
report and recommendation, and dismissed Brown’s complaint without
prejudice for failure to pay the initial payment and failure to comply with court
orders.
Brown moved for appointment of counsel or, in the alternative, for the
district court to send his case to the appeals court. 2 The district court denied the
motion. Brown timely appealed. Brown also moved to proceed IFP on appeal,
which the district court denied, reasoning that Brown “ha[d] not presented a
reasoned, nonfrivolous” argument on the issues he intends to appeal. R. vol. I,
at 51.
2 Though not included in the record on appeal, we may take judicial notice of docket information from the district court. See Bunn v. Perdue, 966 F.3d 1094, 1096 n.4 (10th Cir. 2020); Fed. R. Evid. 201(b)(2). 3 Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 4
DISCUSSION
Brown’s notice of appeal says he appeals only the district court’s January
23, 2025 order denying him counsel. But his opening brief discusses the merits
of his complaint and makes no mention of his failure to pay the initial partial
filing fee. Because Brown has presented no persuasive argument or authority
that the district court erred in dismissing his complaint for his failure to pay the
initial partial filing fee and for his failure to comply with court orders, we
affirm the dismissal of his complaint. See Bronson v. Swensen, 509 F.3d 1099,
1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments
that are not raised, or are inadequately presented, in an appellant’s opening
brief.”).
We next turn to Brown’s IFP motion. Pursuant to § 1915(a)(3) “[a]n
appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” The district court found that Brown’s appeal
was not taken in good faith because he failed to present a nonfrivolous
argument on the issues he intends to appeal. So the district court denied his
motion to proceed IFP on appeal and, pursuant to Federal Rule of Appellate
Produce 24(a)(4)(A), notified the parties and this court of its decision. Though
§ 1915(a)(3) uses mandatory language to deny the availability of an IFP appeal
after a district court has certified that the appeal is not taken in good faith,
we’ve held that Federal Rule of Appellate Procedure 24(a)(5) still permits us to
consider a motion to proceed IFP on appeal. Rolland v. Primesource Staffing,
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Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2025 _________________________________ Christopher M. Wolpert Clerk of Court FRANKIE JOE BROWN,
Plaintiff - Appellant,
v. No. 25-6018 (D.C. No. 5:24-CV-00916-R) FNU SHERRY; FNU WESTBROOKS; (W.D. Okla.) K. GOLDEY,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Frankie Joe Brown, a federal inmate, filed a pro se complaint against
federal officers, alleging a violation of his Eighth Amendment rights under
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). 1 The magistrate judge granted Brown’s motion to proceed in
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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. 1 Because Brown proceeds pro se, we liberally construe his filings, but we do not serve as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (footnote continued) Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 2
forma pauperis (IFP) and ordered him to pay an initial partial filing fee. Brown
failed to pay the fee and the magistrate judge recommended that the complaint
be dismissed. The district court accepted the recommendation and dismissed the
complaint without prejudice. After the district court entered final judgment,
Brown filed a motion requesting appointment of counsel and for the district
court to send his case to the appeals court. The district court denied his motion
and Brown timely filed a notice of appeal. Brown also filed a motion in the
district court to proceed IFP on appeal, which the district court denied because
it found the appeal was not taken in good faith under 28 U.S.C. § 1915(a).
Brown now appeals the district court’s order denying him counsel and
requests leave to proceed IFP. Exercising our jurisdiction under 28 U.S.C.
§ 1291, we deny Brown’s request to proceed IFP and affirm the district court’s
dismissal.
BACKGROUND
In the district court, Brown alleged that staff members at a federal
correctional institution provided him inadequate medical care in violation of
the Eighth Amendment. The magistrate judge granted Brown’s motion to
proceed IFP and held that he was not required to fully prepay the $350 filing
(10th Cir. 2009). Though the district-court docket identified Brown’s claims as arising under 42 U.S.C. § 1983, which applies to state actors, his complaint appears to asset claims against federal defendants only. So his claims are brought under Bivens. See Kinnell v. Graves, 265 F.3d 1125, 1127 n.1 (10th Cir. 2001). 2 Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 3
fee. See 28 U.S.C. § 1915(a). But pursuant to 28 U.S.C. § 1915(b)(1), the
magistrate judge held that Brown was still required to pay the $350 filing fee in
installments, with an initial $28.84 payment due within the month. At Brown’s
request, the magistrate judge extended the deadline for the initial payment by a
month. Brown failed to pay the fee by the extended deadline.
The magistrate judge entered a report recommending that the district
court dismiss Brown’s complaint without prejudice for failure to pay the initial
payment and for failure to comply with the court’s orders. Brown timely
objected, arguing that the merits of his claims outweighed his failure to pay the
initial payment. The district court overruled Brown’s objections, adopted the
report and recommendation, and dismissed Brown’s complaint without
prejudice for failure to pay the initial payment and failure to comply with court
orders.
Brown moved for appointment of counsel or, in the alternative, for the
district court to send his case to the appeals court. 2 The district court denied the
motion. Brown timely appealed. Brown also moved to proceed IFP on appeal,
which the district court denied, reasoning that Brown “ha[d] not presented a
reasoned, nonfrivolous” argument on the issues he intends to appeal. R. vol. I,
at 51.
2 Though not included in the record on appeal, we may take judicial notice of docket information from the district court. See Bunn v. Perdue, 966 F.3d 1094, 1096 n.4 (10th Cir. 2020); Fed. R. Evid. 201(b)(2). 3 Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 4
DISCUSSION
Brown’s notice of appeal says he appeals only the district court’s January
23, 2025 order denying him counsel. But his opening brief discusses the merits
of his complaint and makes no mention of his failure to pay the initial partial
filing fee. Because Brown has presented no persuasive argument or authority
that the district court erred in dismissing his complaint for his failure to pay the
initial partial filing fee and for his failure to comply with court orders, we
affirm the dismissal of his complaint. See Bronson v. Swensen, 509 F.3d 1099,
1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments
that are not raised, or are inadequately presented, in an appellant’s opening
brief.”).
We next turn to Brown’s IFP motion. Pursuant to § 1915(a)(3) “[a]n
appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” The district court found that Brown’s appeal
was not taken in good faith because he failed to present a nonfrivolous
argument on the issues he intends to appeal. So the district court denied his
motion to proceed IFP on appeal and, pursuant to Federal Rule of Appellate
Produce 24(a)(4)(A), notified the parties and this court of its decision. Though
§ 1915(a)(3) uses mandatory language to deny the availability of an IFP appeal
after a district court has certified that the appeal is not taken in good faith,
we’ve held that Federal Rule of Appellate Procedure 24(a)(5) still permits us to
consider a motion to proceed IFP on appeal. Rolland v. Primesource Staffing,
4 Appellate Case: 25-6018 Document: 13-1 Date Filed: 05/09/2025 Page: 5
LLC, 497 F.3d 1077, 1078–79 (10th Cir. 2007). Rule 24(a)(5) requires Brown
to file his IFP motion within thirty days of the district court’s order denying
him IFP status on appeal, and to include the district court’s statement of
reasons for denying his IFP petition. Fed. R. App. P. 24(a)(5). Brown failed to
comply with either requirement.
We deny Brown’s motion to proceed IFP on appeal because of his non-
compliance with Rule 24(a)(5) and for his failure to demonstrate “the existence
of a reasoned, nonfrivolous argument on the law and facts in support of the
issues raised on appeal.” Rolland, 497 F.3d at 1079; see Pease v. Raemisch, 673
F. App’x 877, 879–80 (10th Cir. 2016) (denying a motion to proceed IFP on
appeal because of non-compliance with Rule 24(a)(5) and the failure to
demonstrate a nonfrivolous argument). We remind Brown “that the dismissal of
his appeal does not relieve him of the responsibility to pay the appellate filing
fee in full.” Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).
CONCLUSION
For these reasons, we deny Brown’s motion to proceed IFP, and dismiss
this appeal. 3
Entered for the Court
Gregory A. Phillips Circuit Judge
3 This dismissal counts as a strike under 28 U.S.C. § 1915(g). 5