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

                                   TENTH CIRCUIT                      February 13, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court

 JOSE GARZA,

       Plaintiff - Appellant,

 v.                                                       No. 13-3222
                                                 (D.C. No. 5:12-CV-03139-SAC)
 CORRECT CARE SOLUTIONS;
                                                            (D. Kan.)
 MARLENE ABLE, Director of Nurses,
 Larned Correctional Mental Health
 Facility; DOUGLAS WADDINGTON,
 Warden, Larned Correctional Mental
 Health Facility; JOHNNIE GODDARD,
 Kansas Department of Corrections; (FNU)
 LAWHORN, Regional Director, Correct
 Care Solutions; S. KEPKA, Doctor,
 Ellsworth Correctional Facility, a/k/a
 Dennis Kepka; DANIEL STANTON,
 Doctor, Lansing Correctional Facility;
 KENDRA BARKER, Nurse, Larned
 Correctional Mental Health Facility;
 (FNU) BARKER, Nurse, Larned
 Correctional Mental Health Facility; DEE
 RUNDELL, Nurse, Larned Correctional
 Mental Health Facility Clinic; WILLIAM
 SLATER, Doctor,

       Defendants - Appellees.



                                ORDER AND JUDGMENT*


        * 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
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.


       Jose Garza, a prisoner proceeding pro se, brought claims under 42 U.S.C. § 1983

in the United States District Court for the District of Kansas. He alleged that in 2003 he

was raped by a prison guard and two inmates at Lansing Correctional Facility and that he

received inappropriate medical care from medical providers associated with Correct Care

Solutions. The district court dismissed his sexual-assault claim because it had been

litigated in five previous cases that had been dismissed for multiple reasons—including

failure to exhaust administrative remedies, failure to name proper defendants, and failure

to allege facts that would show that named defendants personally participated in the

incident—and Mr. Garza had not alleged new facts that would allow him to overcome

these deficiencies. The court dismissed his improper-medical-care claim because (1) he

failed to allege sufficient facts to show that the named defendants had any personal role

in the improper care; (2) he failed to allege that he has been diagnosed with any of the

medical conditions that he alleges are being improperly treated or that he had

unmistakable symptoms of the conditions; (3) he failed to allege facts that could imply

that any of the medical providers acted with deliberate indifference to his medical needs;

and (4) at most he alleged a negligence or malpractice claim, which does not rise to the

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.
                                             2
level of a constitutional violation. On appeal Mr. Garza raises the same claims without

providing any response to the district court’s grounds for dismissal. We hold that the

appeal is frivolous and dismiss it.

       Mr. Garza also argues on appeal that he was denied effective assistance of counsel

when the district court rejected his request for appointment of counsel. But the court did

not abuse its discretion in refusing to appoint counsel for Mr. Garza in this civil case. See

Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (“Only in those extreme cases where

the lack of counsel results in fundamental unfairness will the district court’s decision be

overturned.” (internal quotation marks omitted)).

       Finally, we consider Mr. Garza’s strikes under the Prison Litigation Reform Act of

1995 (PLRA). The PLRA imposes strikes against prisoners “for purposes of future [in

forma pauperis] 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. Bureau of Prisons, 635 F.3d 1172, 1176

(10th Cir. 2011) (ellipses and internal quotation marks omitted); see also 28 U.S.C. §

1915(g). Prisoners who have received three strikes must “prepay the entire filing fee

before federal courts may consider their civil actions and appeals.” Hafed, 635 F.3d at

1176 (internal quotation marks omitted). The only exception is for a prisoner who is

“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

       Mr. Garza now has more than three strikes. He received a strike when one of his

earlier complaints was dismissed for failure to state a claim upon which relief can be
                                              3
granted, see Garza v. Bandy, No. 08–3084–SAC, 2008 WL 2095369, at * 1 (D. Kan.

May 16, 2008); and he received a strike when another complaint was dismissed because

he failed to exhaust administrative remedies, see Garza v. Correct Care Solutions,

No. 09-3146–SAC, 2011 WL 2580299, at *3 (D. Kan. Jun. 28, 2011); Smith v. Cowman,

208 F. App’x 687, 689 (10th Cir. 2006) (dismissal based on failure to exhaust

administrative remedies is a strike under the PLRA). The district court’s dismissal in this

case for failure to state a claim upon which relief can be granted and our dismissal of the

appeal as frivolous also impose strikes. Because Mr. Garza has more than three strikes

he “may not proceed in forma pauperis in any future federal lawsuits, other than habeas,

which do not involve imminent danger of serious physical injury.” Jennings v. Natrona

Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 781 (10th Cir. 1999) (internal quotation

marks omitted).

       We DISMISS the appeal as frivolous. We DENY Mr. Garza’s application to

proceed in forma pauperis and remind him that he remains obligated to pay the full filing

fee.




                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge

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