Strope v. Cummings

• Decision Date: 09 August 2011
• Docket Number: Nos. 10–3254,10–3270.,10–3261,s. 10–3254
• Parties: Michael Lee STROPE, a/k/a Gordon E. Strope, Plaintiff–Appellant,v.William CUMMINGS, Designee, Kansas Department of Corrections, in his individual capacity; David R. McKune, Warden, Lansing Correctional Facility, in his individual capacity; K. Beck, Corrections Officer, Lansing Correctional Facility, in her individual capacity; Kenneth R. Smith, Legal Counsel, Lansing Correctional Facility, in his individual capacity; Michael J. Larocco, Aramark District Manager, in his individual capacity; Frank Dorion, Aramark Kitchen Manager, in his individual capacity; Karen Thorne, Mailroom Supervisor, Lansing Correctional Facility, in her individual capacity, Defendants–Appellees.Michael Lee Strope, a/k/a Gordon Strope, Plaintiff–Appellant,v.Sam Cline, Warden, Hutchinson Correctional Facility, in his individual and official capacity; (FNU) Anderson, Kitchen Manager, Aramark, Hutchinson Correctional Facility, in his individual and official capacity; (FNU) Cole, Kitchen Line Supervisor, Aramark, Hutchinson Correctional Facility, in her individual and official capacity; Charles Werholtz, Secretary of Corrections, in his individual and official capacity; David C. Ferris, Accounting Manager, Lansing Correctional Facility, in his individual and official capacity; Elizabeth Rice, Correctional Assistant, Kansas Department of Corrections, in her individual and official capacity; Colene Fischli, Correctional Assistant, Kansas Department of Corrections, in her individual and official capacity, Defendants–Appellees.Michael Lee Strope, Plaintiff–Appellant,v.William Cummings; Louis E. Bruce, Warden; J. Olson, Aramark; C.O. 1 Schnider; C.O. 1 Ginakon; Jackie Loughridge; Rhonda Pitts; Janet Meyers, Health Care Admin., Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

653 F.3d 1271

Michael Lee STROPE, a/k/a Gordon E. Strope, Plaintiff–Appellant,
v.
William CUMMINGS, Designee, Kansas Department of Corrections, in his individual capacity; David R. McKune, Warden, Lansing Correctional Facility, in his individual capacity; K. Beck, Corrections Officer, Lansing Correctional Facility, in her individual capacity; Kenneth R. Smith, Legal Counsel, Lansing Correctional Facility, in his individual capacity; Michael J. Larocco, Aramark District Manager, in his individual capacity; Frank Dorion, Aramark Kitchen Manager, in his individual capacity; Karen Thorne, Mailroom Supervisor, Lansing Correctional Facility, in her individual capacity, Defendants–Appellees.Michael Lee Strope, a/k/a Gordon Strope, Plaintiff–Appellant,
v.
Sam Cline, Warden, Hutchinson Correctional Facility, in his individual and official capacity; (FNU) Anderson, Kitchen Manager, Aramark, Hutchinson Correctional Facility, in his individual and official capacity; (FNU) Cole, Kitchen Line Supervisor, Aramark, Hutchinson Correctional Facility, in her individual and official capacity; Charles Werholtz, Secretary of Corrections, in his individual and official capacity; David C. Ferris, Accounting Manager, Lansing Correctional Facility, in his individual and official capacity; Elizabeth Rice, Correctional Assistant, Kansas Department of Corrections, in her individual and official capacity; Colene Fischli, Correctional Assistant, Kansas Department of Corrections, in her individual and official capacity, Defendants–Appellees.Michael Lee Strope, Plaintiff–Appellant,
v.
William Cummings; Louis E. Bruce, Warden; J. Olson, Aramark; C.O. 1 Schnider; C.O. 1 Ginakon; Jackie Loughridge; Rhonda Pitts; Janet Meyers, Health Care Admin., Defendants–Appellees.

Nos. 10–3254

10–3261

10–3270.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2011.

[653 F.3d 1272]

Michael Lee Strope, El Dorado, KS, pro se.Kimberly Michelle Grunewald, Kimberly M.J. Lynch, Eric J. Aufdengarten, Attorney General for the State of Kansas, Topeka, KS, for Defendants–Appellees.Before TYMKOVICH and BALDOCK, Circuit Judges, BRORBY, Senior Circuit Judge.ORDER TYMKOVICH, Circuit Judge.

Michael Lee Strope, formerly known as Gordon Eugene Strope, is a prisoner of the State of Kansas appearing pro se and in forma pauperis (IFP). He has three civil appeals pending in this court, each of them filed in October 2010. He has not paid the filing fees for any of these appeals.

As explained below, we conclude that Mr. Strope is barred under federal law from proceeding IFP in these appeals because of a litigation history that includes at least three lawsuits previously dismissed for failure to state a claim. As a result, he must prepay the filings fee for each appeal he would like us to address on the merits, and he is allowed thirty days to pay the fees or each appeal will be dismissed.

[653 F.3d 1273]

Discussion

The Prison Litigation Reform Act of 1995 (“PLRA”) requires all prisoners appealing decisions in civil actions to pay the full amount of the filing fees. Cosby v. Meadors, 351 F.3d 1324, 1326 (10th Cir.2003) (discussing 28 U.S.C. § 1915(b)(1)). Ordinarily, however, “indigent prisoners need not pay federal court filing fees in full prior to initiating ... an appeal.” Id. Rather, a prisoner proceeding IFP usually makes an initial partial payment and then pays the remainder of the filing fee in monthly installments. See id. However, “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. Bur. of Prisons, 635 F.3d 1172, 1176 (10th Cir.2011) (quoting 28 U.S.C. § 1915(g)). When a prisoner has accumulated three strikes, he has “struck out” from proceeding IFP in a new civil action or appeal. Smith v. VA, 636 F.3d 1306, 1308–09 (10th Cir.2011) (internal quotation marks omitted).

PLRA's “three strikes” rule states that:

[i]n 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 three 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.

28 U.S.C. § 1915(g) (emphasis added). “To meet the only exception to the prepayment requirement, a prisoner who has accrued three strikes must make specific, credible allegations of imminent danger[.]” Hafed, 635 F.3d at 1176 (internal quotation marks omitted).

In each of the district court cases underlying Mr. Strope's current appeals, the district court granted his motion for leave to proceed on appeal IFP. But this court has “the discretion to revoke that privilege when it no longer serves its goals.” Treff v. Galetka, 74 F.3d 191, 197 (10th Cir.1996). And although § 1915(g) is not jurisdictional, Garcia v. Silbert, 141 F.3d 1415, 1417 n. 1 (10th Cir.1998), we may raise the issue of strikes sua sponte, see Harris v. City of New York, 607 F.3d 18, 22–23 (2d...