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

                           FOR THE TENTH CIRCUIT                     February 25, 2015

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
JON CHAPMAN,

             Plaintiff - Appellant,

v.                                                       No. 14-8045
                                                (D.C. No. 1:13-CV-00226-ABJ)
WYOMING DEPARTMENT OF                                     (D. Wyo.)
CORRECTIONS; WYOMING STATE
PRISON; CORIZON HEALTH INC.;
WYOMING DEPARMENT OF
CORRECTIONS MEDICAL STAFF,
NURSES AND DOCTORS; WYOMING
DEPARTMENT OF CORRECTIONS
MEDICAL DEPARTMENT; ROBERT
O. LAMPERT, Director, Wyoming
Department of Corrections, in his official
and individual capacity; EDDIE
WILSON, Warden, Wyoming State
Prison, in his individual and official
capacity; ANNE CYBULSKI-
SANDLIAN, Health Services Program
Manager, in her individual and official
capacity; DR. KURT JOHNSON, Health
Services Regional Manager for PHS, in
his individual and official capacity;
DR. MURRAY YOUNG, Health Services
Physician, in his individual and official
capacity; WYOMING MEDIUM
CORRECTIONAL INSTITUTION,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
                                                                           (continued)
Before HARTZ, McKAY, and McHUGH, Circuit Judges.


      Jon Chapman brought this pro se prisoner civil rights complaint against the

defendants under 42 U.S.C. § 1983, alleging denial of medical care, negligence, and

sexual discrimination. The district court dismissed the complaint for failure to state a

claim. It further found that Mr. Chapman had three prior “strikes” and was therefore

barred from proceeding in forma pauperis (IFP) in future civil filings in federal court

under 28 U.S.C. § 1915(g). Mr. Chapman appeals from both the dismissal and the

three-strike ruling.1 We affirm the dismissal. We also affirm the three-strike

restriction under § 1915(g), but only prospectively. The three-strike restriction

applies as the result of our affirmance in this case.

                             RULE 12(b)(6) DISMISSAL

      The district court determined that Mr. Chapman’s complaint failed to state a

claim against each of the defendants. It failed to state a claim against Drs. Murray

Young and Kurt Johnson, because Mr. Chapman failed to allege facts that showed

they personally participated in any deprivation of his constitutional rights, or that

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.
1
      We previously consolidated Mr. Chapman’s two separate notices of appeal by
opening this single appeal, in which we instructed him to file a single opening brief.


                                           -2-
they were deliberately indifferent to his serious medical needs. The complaint failed

to state a claim against Corizon Health Inc. (“Corizon”) because it did not allege that

Corizon had adopted a policy that caused a constitutional tort, and because vicarious

liability is unavailable under § 1983. It failed to state a claim against the Wyoming

state defendants in their individual capacities because it failed to allege facts that

showed personal involvement by those defendants. Mr. Chapman’s official-capacity

claims against the individual Wyoming state defendants, as well as his claims against

the Wyoming state entities, were barred by Eleventh Amendment immunity. Finally,

the complaint failed to state a claim under, or to satisfy the procedural prerequisites

of, the Wyoming Governmental Claims Act with regard to any state-law claims

against the Wyoming state defendants.

       We construe Mr. Chapman’s pro se brief liberally. Adams ex rel. D.J.W. v.

Astrue, 659 F.3d 1297, 1301 n.1 (10th Cir. 2011). We review the district court’s

dismissal for failure to state a claim de novo. Albers v. Bd. of Cnty. Comm’rs,

771 F.3d 697, 700 (10th Cir. 2014). “To survive a motion to dismiss, a plaintiff must

plead facts sufficient to state a claim to relief that is plausible on its face.” Id.

(internal quotation marks omitted). We also review de novo a decision to dismiss a

claim under the Eleventh Amendment. Schrier v. Univ. of Colo., 427 F.3d 1253,

1268 (10th Cir. 2005).

       On appeal, Mr. Chapman argues that (1) his complaint stated an Eighth

Amendment claim for deliberate indifference to his serious medical needs; (2) the


                                            -3-
Wyoming Department of Corrections failed to follow its own rules; (3) he should be

given the opportunity to amend his pro se complaint; (4) the defendants deprived him

of a liberty interest protected by the Fourteenth Amendment; (5) the defendants

retaliated against him; (6) he adequately exhausted his administrative remedies;

(7) the defendants are not entitled to Eleventh Amendment immunity, sovereign

immunity, or qualified immunity; (8) he stated valid claims against the defendants in

their individual capacities; and (9) he stated a claim for damages recoverable under

federal or Wyoming law. Upon consideration of the briefs, the record, and the

applicable law in light of the review standards outlined above, Mr. Chapman has

failed to establish any reversible error by the district court. Accordingly, we affirm

the dismissal of his complaint.

                 “THREE STRIKES” UNDER 28 U.S.C. § 1915(g)

      The “three strikes” provision of the Prison Litigation Reform Act (PLRA) is

designed “to revoke, with limited exception, in forma pauperis privileges for any

prisoner who has filed three or more lawsuits that fail to state a claim, or are

malicious or frivolous.” Skinner v. Switzer, 562 U.S. 521, ___, 131 S. Ct. 1289,

1299-1300 (2011). It provides 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 3
      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.


                                          -4-
28 U.S.C. § 1915(g).

        The district court found that Mr. Chapman had brought such an action on three

prior occasions and was therefore not entitled to proceed IFP in future civil filings.

The district court identified three prior dismissals that it considered prior occasions

or “strikes”: Chapman v. Lampert, No. 12-CV-064-ABJ (D. Wyo. May 2, 2012);

Chapman v. Lampert, No. 12-CV-276-SWS (D. Wyo. Sept. 10, 2013); and Chapman

v. Wyo. Dep’t of Corrs., No. 13-CV-136-NDF (D. Wyo. May 13, 2014).

        We agree that Nos. 12-CV-064-ABJ and 13-CV-136-NDF count as strikes.

The district court dismissed No. 12-CV-064-ABJ as frivolous and

No. 13-CV-136-NDF for failure to state a claim.

        The district court disposed of No. 12-CV-276-SWS, however, by granting

summary judgment in favor of the defendants. Mr. Chapman appealed, and we

affirmed the order granting summary judgment and the denial of injunctive relief.

Chapman v. Lampert, 555 F. App’x 758, 763 (10th Cir. 2014). Because the district

court granted summary judgment and did not dismiss the action on one of the

grounds identified in § 1915(g), its disposition did not count as a strike.

See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.

1999) (“Under the plain language of the statute, only a dismissal may count as a

strike . . . .”).

        Thus, at the time of the district court’s decision in this case, Mr. Chapman had

two strikes. But in that decision, the court dismissed this case for failure to state a


                                           -5-
claim. Because we have now affirmed that dismissal, it counts as a third strike under

the PLRA. See Childs v. Miller, 713 F.3d 1262, 1266 (10th Cir. 2013) (holding

affirmance of Rule 12(b)(6) dismissal for failure to state claim constituted third strike

under PLRA). Thus, Mr. Chapman now has three strikes. “This third strike will

ripen to be counted against [his] eligibility to proceed ifp in other civil actions or

appeals in federal court when the appellate process has been completed, either by the

Supreme Court’s denial or dismissal of a petition for certiorari, if [he] files one, or

when the time to file a petition for certiorari has expired, if he does not.” Id.

                                    CONCLUSION

       The judgment of the district court dismissing Mr. Chapman’s complaint is

affirmed. We grant his motion to proceed IFP in this appeal, and remind him that he

is obligated to continue making partial payments until the filing fee is paid in full.

All other pending motions are denied. Mr. Chapman now has three strikes, and is

prohibited, pursuant to the PLRA, from proceeding IFP in any future civil filing

unless he can affirmatively show that he is “under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g).


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




                                           -6-
