                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       April 10, 2018
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 VICTOR ANDREW APODACA,

               Plaintiff - Appellant,

 v.                                                      No. 17-2204
                                              (D.C. No. 2:16-CV-01227-WJ-GJF)
 WARDEN R.C. SMITH; N. ALANIZ;                             (D.N.M.)
 MRS. MALDONADO; MRS. STRUB;
 MAILROOM SUPERVISOR STEVI
 MADERA; SECRETARY OF
 CORRECTIONS, N.M.C.D. GREG
 MARCANTEL; DIRECTOR JERRY
 ROARK; EMPLOYEES AT L.C.C.F;
 MRS. GOMEZ; GEO GROUP, INC.,

               Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.



      Pro se prisoner 1 Victor Andrew Apodaca appeals from the district court’s

      *
              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judgment is not binding precedent except under the doctrines of law of the case,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.
      1
             We construe the filings of a pro se litigant liberally, see Erickson v.
                                                                         (continued...)
dismissal of his civil rights action. Although Mr. Apodaca’s pleadings stated that

they were filed pursuant to the New Mexico Tort Claims Act, N.M. S TAT . A NN .

§§ 41-4-1 to -30, the substance of his claims allege violations of his due-process

rights and retaliation in violation of the First, Fifth, and Fourteenth Amendments.

The district court ultimately dismissed Mr. Apodaca’s action because he failed to

allege sufficient facts to support a colorable claim against any of the defendants

named in his pleadings.

      Mr. Apodaca’s present appeal similarly fails to set forth any legible claims,

providing nothing more than conclusory statements and references to various

constitutional provisions. Mr. Apodaca also fails to address the basis of the

district court’s dismissal of his claims, i.e., his failure to adequately allege any

constitutional or tort claims.

      Exercising jurisdiction under 28 U.S.C. § 1291, we DISMISS Mr.

Apodaca’s appeal as frivolous and also DENY Mr. Apodaca in forma pauperis

(“IFP”) status. 2 And, because Mr. Apodaca’s appeal is frivolous, we further

impose a “strike” under 28 U.S.C. § 1915(g).


      1
      (...continued)
Pardus, 551 U.S. 89, 94 (2007) (per curiam), but our role is not to serve as his
advocate, see Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
      2
             The district court denied Mr. Apodaca IFP status for purposes of
appeal, certified that his appeal would not be taken in good faith, and issued a
“strike” against Mr. Apodaca under 28 U.S.C. § 1915(g). Mr. Apodaca has filed
an IFP motion on appeal, which we now consider and deny.

                                           2
                                         I

       Mr. Apodaca was incarcerated at the Lea County Correctional Facility in

Hobbs, New Mexico, when he filed his original complaint. See R. at 419 (Mem.

Op. & Final Order of Dismissal, dated Nov. 20, 2017). He originally filed his

complaint in the First Judicial District Court in Santa Fe County, New Mexico,

naming Warden R.C. Smith, N. Alaniz, Mrs. Maldonado, Mrs. Strub, Mailroom

Supervisor Stevi Madera, and Geo Group as defendants. Id. Mr. Apodaca then

filed an amended complaint on October 13, 2016, in which he included additional

defendants: Secretary of Corrections Greg Marcantel, Director Jerry Roark,

“Employs at L.C.C.F.,” and Mrs. Gomez. Id. at 419–20. On November 8, 2016,

defendant Madera removed the case to federal court.

       On September 20, 2017, the district court dismissed Mr. Apodaca’s

complaint and amended complaint because they failed to state a claim against any

of the named defendants. 3 See id. at 347–51 (Mem. Op. & Order of Dismissal,

dated Sept. 20, 2017). However, the court dismissed Mr. Apodaca’s claims

without prejudice, and granted him thirty days to remedy the deficiencies. Id. at

352.


       3
            To clarify, the district court issued two orders: (1) an order
dismissing without prejudice Mr. Apodaca’s complaint and amended complaint on
September 20, 2017, see R. at 344–53, and (2) a final order dismissing with
prejudice Mr. Apodaca’s belated request to file what would have been his second
amended complaint (though the district court referred to that proposed filing as
his “amended complaint”) on November 20, 2017, see id. at 419–27.

                                        3
      Mr. Apodaca did not file what would have been his second amended

complaint within the thirty-day period, and instead filed, on November 13, 2017,

a document styled, “File Amended Complaint Proposed,” and stated in an

attachment to that filing that he did not receive the district court’s September 20

order until November 7. Id. at 354 (File Am. Compl. Proposed, dated Nov. 13,

2017), 358 (Mot. & Mem. Br. Answer, dated Nov. 13, 2017). However, the

district court rejected that assertion, noting that Mr. Apodaca did not provide any

evidence of his late receipt and did not state that he had belatedly received the

order under penalty of perjury. Id. at 421.

      The district court then construed Mr. Apodaca’s filing as a motion for leave

to file a second amended complaint, and denied it pursuant to Federal Rule of

Civil Procedure 15. The district court reasoned that while Mr. Apodaca sought to

add three more defendants, his proposed complaint failed to state any facts raising

a claim for relief against those additional defendants and did not address his prior

failures to state colorable claims against any of the earlier-named defendants. Id.

at 421–27. Accordingly, the district court held that permitting Mr. Apodaca to

amend his complaint was futile, and dismissed the case with prejudice. The

district court also imposed a “strike” under § 1915(g). Id. at 426–27.

      The district court entered final judgment on November 20, 2017, see id. at




                                          4
428 (J., dated Nov. 20, 2017), and Mr. Apodaca timely appealed, 4 see id. at 429

(Notice of Appeal, dated Nov. 30, 2017).

                                          II

      The district court dismissed Mr. Apodaca’s case because his pleadings

failed to state any colorable claim against any defendant. See id. at 420 (holding

that “Plaintiff Apodaca failed to articulate specific factual allegations of

individualized conduct in violation of his constitutional rights” in his original and

amended complaints); id. at 426 (further holding that Mr. Apodaca’s proposed

second amended complaint “failed to cure pleading deficiencies in the Complaint

and Amended Complaint,” and therefore warranted “dismiss[al of] all claims and

causes of actions in this case”).

      Mr. Apodaca’s present appeal does nothing to cause us to question the

propriety of the district court’s actions. More specifically, even construing Mr.

Apodaca’s pro se appellate brief liberally, see Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam), his brief fails to set forth any cognizable ground for this

court to find fault with the district court’s determination. The majority of his

briefing is spent discussing the Federal Rules of Civil Procedure 8(a)(2) and

12(b)(6) standards, see Aplt.’s Br. at 3–5, and the remainder of it simply refers to

various alleged constitutional violations without any supportive factual


      4
             Mr. Apodaca filed an amended notice of appeal on December 8,
2017, but the amended notice does not alter the scope of his appeal.

                                          5
allegations linking those purported violations to specific defendants and without

any explanation of why the district court misconstrued his pleadings. See, e.g.,

id. at 2–5 (discussing “The Establishment Clause[] of the Fourteenth Amendment”

and stating that “Jewish believers” were denied access to the chapel without

providing any further facts in support of his claim; alleging that he and three

other inmates were subjected to a “group assult [sic],” without alleging who the

assaulters were, when it occurred, or any other supporting facts; and alleging that

“Plaintiff believes that Warden R.C. Smith had a personal vendetta and that it was

motivated by racial animus,” without stating a basis for that belief or any specific

constitutional violations that were caused by that alleged animus); see also Aplt.’s

App. at 358 (alleging, without any supporting facts, that his mail was

purposefully delayed).

      In short, Mr. Apodaca’s present briefing does nothing to show that he

adequately stated a claim in his filings before the district court. As such, because

none of Mr. Apodaca’s arguments provide any ground to show that the district

court erred in dismissing his various pleadings, we find no reason to take issue

with the district court’s rulings.

                                          III

      We also conclude that Mr. Apodaca’s appeal is frivolous because his

appellate brief is itself wholly without merit. Under 28 U.S.C. § 1915(e)(2)(B)(i),

a “court shall dismiss the case at any time if the court determines that . . . the

                                           6
action or appeal . . . is frivolous or malicious . . . [or] fails to state a claim on

which relief may be granted.” “An appeal is frivolous when ‘the result is

obvious, or the appellant’s arguments of error are wholly without merit.’” Olson

v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993) (quoting Braley v. Campbell, 832

F.2d 1504, 1510 (10th Cir. 1987) (en banc)).

       As discussed above, Mr. Apodaca’s brief on appeal presents a hodgepodge

of references to various laws and vague allegations, but does not weave those

various statements into coherent, colorable arguments. Even beyond that patent

shortcoming, Mr. Apodaca’s brief also does not refer to, much less dispute, the

district court’s basis for dismissing his case—i.e., his failure to state any viable

claims for relief in his numerous pleadings. His failure to address the district

court’s reasoning provides another ground for dismissal and a basis to find his

appeal, as a whole, to be frivolous. See Baccus v. Baccus, 564 F. App’x 951, 953

(10th Cir. 2014) (unpublished) (“Given the lack of any meaningful argument

responsive to the [district] court’s rationale for its decision, appellants have

waived any challenge to that decision. Because appellants fail to identify any

error in the district court’s rationale for its decision, this appeal is frivolous.”

(citation omitted)); cf. Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.

1995) (“Because the appellant comes to the court of appeals as the challenger, he

bears the burden of demonstrating the alleged error and the precise relief

sought.”).

                                             7
      The only aspect of the district court’s decision that Mr. Apodaca even

acknowledges is the court’s conclusion that he failed to support his allegation that

he belatedly received the court’s order permitting him to file a second amended

complaint. Aplt.’s Br. at 1–2. However, his appellate brief simply restates his

position without providing any proof of the same. And, even if we were to accept

his contention, he nevertheless fails to address the rest of the district court’s

analysis regarding the inadequacies of his pleadings. In sum, based on his

appellate briefing, and in light of the totality of the record, we conclude that Mr.

Apodaca fails to set forth any non-frivolous argument that militates in favor of

reversal on any ground.

                                          IV

      A federal district court “may authorize the commencement . . . of any suit[

or] action . . . without prepayment of fees” under the IFP statute. 28 U.S.C.

§ 1915(a)(1). IFP status ensures “equal treatment for every litigant before the

bar.” Coppedge v. United States, 369 U.S. 438, 447 (1962). However, “[l]eave to

proceed without prepayment of fees and costs is a privilege, not a right.” Treff v.

Galetka, 74 F.3d 191, 197 (10th Cir. 1996).

      Because Mr. Apodaca has not advanced a “reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal,” Watkins v. Leyba,

543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n,

115 F.3d 809, 812 (10th Cir. 1997)), we deny him IFP status. See also

                                           8
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (concluding that a

“reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal” is a prerequisite for being granted IFP status); accord Baccus,

564 F. App’x at 953. And, because we conclude that his appeal is frivolous, we

impose a second strike against Mr. Apodaca. See Hafed v. Fed. Bureau of

Prisons, 635 F.3d 1172, 1175 (10th Cir. 2011) (holding that “a dismissal under 28

U.S.C. § 1915A counts as a strike when the action was dismissed as frivolous,

malicious, or for failure to state a claim, the same grounds listed in 28 U.S.C.

§ 1915(g)”); Burnett v. Allbaugh, No. 17-6133, 2017 WL 5157540, at *4 (10th

Cir. Nov. 7, 2017) (unpublished) (“Because we affirm dismissal of his complaint

for failure to state a claim, we necessarily affirm the imposition of a strike. We

also assess another strike for taking a frivolous appeal.”).

                                          V

      Based on the foregoing, we DENY Mr. Apodaca IFP status on appeal,

DISMISS his appeal as frivolous, and impose a strike pursuant to § 1915(g).

Mr. Apodaca is reminded of his duty to pay the unpaid balance of his filing fees

in full immediately.

                                              Entered for the Court



                                              JEROME A. HOLMES
                                              Circuit Judge



                                          9
