Dopp v. Larimer

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 19, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court RICHARD LYNN DOPP, Plaintiff - Appellant, v. No. 17-6217 (D.C. No. 5:15-CV-00244-D) RAY LARIMER; FRED SANDERS; FNU (W.D. Okla.) BRISOLARA, Doctor; FNU BEVAN, Doctor; GENESE McCOY, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* _________________________________ Before LUCERO, HARTZ, and McHUGH, Circuit Judges. _________________________________ Richard Dopp appeals the district court’s dismissal of his 42 U.S.C. § 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I Before considering the merits of Dopp’s appeal, we must determine whether he may proceed under 28 U.S.C. § 1915(g). Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner may not “bring a civil action or appeal a judgment in a * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. civil action” with in forma pauperis (“IFP”) status if he had an action or appeal “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted” on three prior occasions “unless the prisoner is under imminent danger of serious physical injury.” Id. Noting that Dopp appears to have accrued more than three prior PLRA strikes, we entered an order to show cause why the appeal should not be dismissed for failure to prepay the filing fee. In his response, Dopp does not deny that he has three strikes, but instead argues that he qualifies under the imminent danger exception. The district court granted Dopp leave to proceed IFP below because he advanced “specific, credible allegations of imminent danger of serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (quotation and alteration omitted). Specifically, Dopp claimed that defendants were deliberately indifferent to his cervical spinal impairment with nerve impingement, which was causing him severe pain. However, after entering judgment in favor of defendants, the district court denied Dopp leave to proceed IFP on appeal because he merely referred generally to his prior filings. To file a civil action without prepayment of fees under the imminent danger exception, “a prisoner must have alleged an imminent danger at the time he filed his complaint.” Id. It appears our court has not yet decided whether a prisoner must allege a threat of harm at the time of an appeal to obtain IFP status on appeal. See id. at 1180 (noting the question but declining to reach it). The plain language of the statute indicates that ...

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