                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          November 14, 2012
                                   TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 DALE E. HARPER,

        Plaintiff–Appellant,
                                                       Nos. 12-6183 & 12-6186
 v.                                                  (D.C. No. 5:12-CV-00455-HE
                                                        & 5:12-CV-00456-HE)
 JAMES RUDEK; JOHN DOE, T.M.                                 (W.D. Okla.)
 Deputy Warden; NINA NAGEL-SILVA,
 Correctional Officer; STOINSKY,
 Correctional Officer; BEARDEN,
 Sergeant, Correctional Officer;
 AINSWORTH; BRASHEARS, Head of
 Segregation; CHESTER, Warden,

        Defendants–Appellees.


                               ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Dale Harper filed three essentially identical complaints in the Western District of



        * After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Oklahoma, alleging that prison officials have retaliated against him for filing another

lawsuit. The district court opened three cases, numbers 12-0449, 12-0455, and 12-0456.

Pursuant to its screening function under 28 U.S.C. § 1915A(a), the court concluded that

the repetitious filings were an effort to control which magistrate judge would be assigned

to Harper’s case. Holding that two of the three lawsuits were malicious under 28 U.S.C.

§ 1915A(b)(1), the court dismissed cases 12-0455 and 12-0456.

       We have consolidated Harper’s appeal of the two dismissals. On appeal, Harper

confirms that he filed three complaints, along with a letter instructing the district court

clerk to dismiss the complaints if certain magistrate judges were assigned, in an effort to

judge shop. We agree with the district court that such conduct is malicious under 28

U.S.C. § 1915A(b)(1). See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.

1998) (“Judge-shopping clearly constitutes conduct which abuses the judicial process.”

(quotation omitted)); Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (“[I]t is

‘malicious’ for a pauper to file a lawsuit that duplicates allegations of another pending

federal lawsuit by the same plaintiff.”).

       We AFFIRM the district court’s dismissal. Harper has failed to advance “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), and we

accordingly DENY his motion to proceed in forma pauperis. We further impose two

strikes under 28 U.S.C. § 1915(g) because these appeals are frivolous. See Jennings v.
                                             -2-
Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780-81 (10th Cir. 1999).1



                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




       1
         We reject Harper’s claim that the district court erred in imposing § 1915(g)
strikes below. A strike is appropriate if “while incarcerated or detained in any facility,” a
prisoner “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” regardless of whether the prisoner is proceeding in forma pauperis. Id.


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