Flute v. United States

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 25, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court GARY FLUTE, SR.,

Plaintiff - Appellant,

v. No. 17-1401 (D.C. No. 1:17-CV-01717-LTB) UNITED STATES OF AMERICA; MR. R. (D. Colo.) HUSEBY, official & individual capacities; MR. HUFNAGLE, official & individual capacities; MR. D. TAYLOR, official & individual capacities; MS. M. HOFFER, official & individual capacities; MS. DEBORAH DENHAM, official & individual capacities,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. _________________________________

Proceeding pro se,1 federal prisoner Gary Flute Sr. brought this action under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

* After examining the appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wouldn’t 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 isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe Flute’s pro se filings. But it’s not our role to act as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). (1971). After a magistrate judge identified various deficiencies in his initial

complaint, Flute filed an amended one. The district court then screened Flute’s

amended complaint under 28 U.S.C. § 1915A(a) and sua sponte dismissed it as

legally frivolous under § 1915A(b)(1).2 Flute appeals.

We review a dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) for

an abuse of discretion. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003).

But it doesn’t appear that we have yet resolved whether we review a dismissal for

frivolousness under § 1915A(b)(1) under the same standard, or whether we instead

exercise de novo review. See Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000);

Robbins v. Cty. of Boulder, 592 F. App’x 710, 712 (10th Cir. 2014) (unpublished).

We need not resolve that question here; for the reasons discussed below, Flute’s

arguments fail under either standard.

Flute first argues that the magistrate judge erred in denying his request for

counsel. But Flute neither acknowledges that the district court denied his request as

premature nor challenges that characterization on appeal. Thus, he has waived any

challenge to that ruling. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366

2 The district court dismissed Flute’s amended complaint—which alleges claims arising from a March 2015 incident report and subsequent disciplinary proceedings—on October 13, 2017. On the same day, the district court also dismissed Flute’s amended complaint in a separate action, which alleged claims arising from an August 2015 prison-job reassignment. See Flute v. United States, No. 1:17-cv-01688- LTB, slip op. at 6 (D. Colo. Oct. 13, 2017). The district court resolved these cases in separate orders, see id.; Flute v. United States, No. 1:17-cv-01717-LTB (D. Colo. Oct. 13, 2017), and Flute has appealed from both. Although Flute raises many of the same arguments in both appeals, we follow the district court’s lead and resolve the cases in separate orders issued on the same day. See Flute v. United States, No. 17- 1397 (10th Cir. Jan. 25, 2018). 2 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the district

court’s decision was wrong.”).

True, Flute suggests that he later renewed his request for counsel when he

asked for extension of time to file his amended complaint. But he fails to provide a

precise record citation to support that assertion. See Fed. R. App. P. 28(a)(8)(A)

(requiring argument section of appellant’s opening brief to contain “appellant’s

contentions and the reasons for them, with citations to the . . . parts of the record on

which the appellant relies”); 10th Cir. R. 28.2(C)(2) (“For each issue raised on

appeal, all briefs must cite the precise reference in the record where the issue was

raised and ruled on.”). And our independent review of the record yields no such

request. Instead, it appears that Flute merely cited the magistrate judge’s initial

refusal to appoint counsel as a reason he needed additional time to prepare his

amended complaint. The magistrate judge apparently read Flute’s request for an

extension the same way we do; in denying Flute’s motion, the magistrate judge didn’t

address whether Flute was entitled to the appointment of counsel at that point. Thus,

we won’t address this question either. See Salt Lake Tribune Publ’g Co. v. Mgmt.

Planning, Inc., 454 F.3d 1128, 1142 (10th Cir. 2006) (declining to address issue that

district court didn’t rule on, even though parties fully briefed it below).

Next, Flute argues that the district court’s sua sponte decision to dismiss his

complaint violates the rule that courts must confine themselves to “the role of neutral

arbiter of [those] matters the parties present.” Greenlaw v. United States, 554 U.S.

237, 243 (2008). But Greenlaw’s actual holding—that an appellate court can’t “alter

3 a judgment to benefit a nonappealing party,” id. at 244—doesn’t apply to, let alone

preclude, the district court’s actions here. On the contrary, the district court was

required by statute to screen Flute’s complaint and, if it determined that his claims

were frivolous, to dismiss it. See § 1915A(a), (b)(1).3 Thus, we reject this argument.

Finally, Flute asserts that the district court erred in overlooking his First

Amendment claim. At the outset, we note that Flute fails to provide any record

citations that might demonstrate he actually raised such a claim. We could decline to

reach this argument on that basis alone. See Fed. R. App. P. 28(a)(8)(A); Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting we routinely refuse to

consider arguments that fail to meet Rule 28’s requirements).

Alternatively, even if we exercised our discretion to consider this waived

argument, we would reject it on the merits. Flute’s amended complaint does

repeatedly reference (albeit without any elaboration or explanation) the First

Amendment. But to the extent Flute’s naked references to the First Amendment were

sufficient to put the district court on notice that he was raising one or more First

Amendment claims, those claims were premised on the same events that formed the

basis of what the district court instead construed as a due-process claim. And because

those events transpired more than two years before Flute filed his complaint, the

district court reasoned, any constitutional claims arising from them were time-barred.

3 Flute appears to be operating under the impression that the district court dismissed his complaint under § 1915. But the district court instead dismissed his complaint under a separate statute: § 1915A. Thus, Flute’s assertion that the district court erred in “dispos[ing] of [his complaint] within the [§ 1915] framework,” Aplt. Br. 5, necessarily fails. 4 Flute makes no effort to challenge this ruling on appeal. Thus, he fails to

demonstrate the alleged error prejudiced him. See Shinseki v. Sanders, 556 U.S. 396,

410 (2009) (explaining that “party seeking reversal normally must explain why the

erroneous ruling caused harm”). Whether the district court construed his claims as

arising under the Due Process Clause or the First Amendment is immaterial—either

way, the district court found Flute’s constitutional claims time-barred. And that

ruling stands unchallenged on appeal. See Reedy v. Werholtz, 660 F.3d 1270, 1275

(10th Cir. 2011) (“The argument section of [appellants’] opening brief does not

challenge the court’s reasoning on this point. We therefore do not address the

matter.”). Accordingly, any error in failing to recognize that Flute was asserting one

or more First Amendment claims was harmless. See 28 U.S.C. § 2111 (requiring us to

disregard errors that “do not affect the substantial rights of the parties”).

As a final matter, we must determine whether Flute may proceed in forma

pauperis (IFP) on appeal. Section 1915(g) generally bars a prisoner from proceeding

IFP if he or she has, on at least three “prior occasions,” filed an action or appeal “that

was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim

upon which relief may be granted.” And when Flute filed his notice of appeal in this

case, he had at least two strikes for purposes of § 1915(g). See Flute v. United States,

No. 1:17-cv-01688-LTB, slip op. at 6 (D. Colo. Oct. 13, 2017) (dismissing Flute’s

complaint as legally frivolous under § 1915A); Flute v. Ruehling, No. 08-cv-484-

MJR, 2009 WL 728570, at *3 (S.D. Ill. Mar. 18, 2009) (dismissing Flute’s complaint

under § 1915A and assessing strike); Hafed v. Fed. Bureau of Prisons, 635 F.3d

5 1172, 1175 (10th Cir. 2011) (holding that dismissal under § 1915A “counts as a

strike when the action was dismissed as frivolous, malicious, or for failure to state a

claim”).

Neither this court nor the Supreme Court has yet resolved whether the district

court’s order dismissing Flute’s complaint in this action constitutes a third strike that

would prohibit Flute from proceeding IFP in this appeal. See Coleman v. Tollefson,

135 S. Ct. 1759, 1765 (2015) (holding that prisoner who has accumulated at least

three strikes generally can’t proceed IFP “while his [or her] appeal of one such

dismissal is pending,” but declining to resolve whether prisoner can proceed IFP

“with respect to an appeal from a third qualifying dismissal”). We decline to resolve

that open question here. Even assuming we would answer it in a manner favorable to

Flute, we would nevertheless deny his IFP motion because he fails to demonstrate

“the existence of a reasoned, nonfrivolous argument on the law and facts in support

of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th

Cir. 1991). Thus, we deny Flute’s IFP motion, remind him that he must immediately

pay any remaining filing fees, dismiss the appeal as frivolous under

§ 1915(e)(2)(B)(i), and note that Flute now has at least three strikes for purposes of

§ 1915(g). See Hafed, 635 F.3d at 1175; cf. Jennings v. Natrona Cty. Det. Ctr. Med.

Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal

of an action the district court dismissed [as frivolous], both dismissals count as

6 strikes.”), abrogated in part on other grounds by Coleman, 135 S. Ct. 1759.

Entered for the Court

Nancy L. Moritz Circuit Judge