Burghart v. Corrections Corp. of Ameica, 102209 FED10, 08-6083

Docket Nº:08-6083
Opinion Judge:LUCERO, McKAY, and MURPHY, Circuit Judges
Party Name:BOBBY BURGHART, Plaintiff - Appellant, v. CORRECTIONS CORPORATION OF AMERICA, a/k/a CCA; CIMARRON CORRECTIONAL FACILITY; CHARLES RAY, Warden; JOHN MIDDLETON, Assistant Warden; JOHN WELCH, Assistant Warden; H. B. FIELDS, Chief, Unit Management/Classification; LINDA JESTER, Mailroom Supervisor; COY GILLESPIE, Business Manager, Defendants - Appellees.
Judge Panel:Before, LUCERO, McKAY, and MURPHY, Circuit Judges.
Case Date:October 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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BOBBY BURGHART, Plaintiff - Appellant,

v.

CORRECTIONS CORPORATION OF AMERICA, a/k/a CCA; CIMARRON CORRECTIONAL FACILITY; CHARLES RAY, Warden; JOHN MIDDLETON, Assistant Warden; JOHN WELCH, Assistant Warden; H. B. FIELDS, Chief, Unit Management/Classification; LINDA JESTER, Mailroom Supervisor; COY GILLESPIE, Business Manager, Defendants - Appellees.

No. 08-6083

United States Court of Appeals, Tenth Circuit

October 22, 2009

D.C. No. 5:08-CV-00062-C,W.D. Okla.

Before, LUCERO, McKAY, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT[*]

Carlos F. Lucero Circuit Judge

Bobby Burghart, a state prisoner proceeding pro se, appeals a district court order dismissing his constitutional challenge to 28 U.S.C. § 1915(g) and its applicability to him. The constitutionality of § 1915(g) is well established, and Burghart offers no credible argument that it should not apply to him. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's order and dismiss the appeal.

I

In January 2008, Burghart filed a 42 U.S.C. § 1983 suit in the United States District Court for the Western District of Oklahoma against Corrections Corporation of America, the Cimarron Correctional Facility, and various facility employees. He alleged the defendants violated his rights under the First, Eighth, and Fourteenth Amendments. He also filed a motion to proceed in forma pauperis ("IFP"), despite the fact his complaint advised the court that he had accrued "three (3) strikes under the [Prison Litigation Reform Act]" ("PLRA").

The magistrate judge noted that § 1915(g) prevents a prisoner who has had three suits or appeals dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted from proceeding IFP unless he is in "imminent danger of serious physical injury." Because Burghart admitted "three strikes" under the statute, the magistrate judge recommended that the district court deny the motion to proceed IFP and order Burghart to pay the full filing fee or demonstrate that he faced imminent danger of serious physical injury. Burghart objected, alleging in part that he was in danger of serious physical injury. The district court determined that the injuries Burghart alleged were not "serious" as contemplated by the statute, denied his motion to proceed IFP, and ordered him to pay the filing fee within thirty days.

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