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

                            FOR THE TENTH CIRCUIT                       November 25, 2015
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
EDGAR TIEDEMANN,

     Plaintiff - Appellant,

v.                                                        No. 15-4076
                                                 (D.C. No. 2:13-CV-00452-CW)
CHURCH OF JESUS CHRIST OF                                   (D. Utah)
LATTER DAY SAINTS; THOMAS S.
MONSON, Pres.,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
                 _________________________________

      Edgar Tiedemann, a Utah state prisoner, appeals the dismissal of his civil-

rights case filed under 42 U.S.C. § 1983. We dismiss this appeal as frivolous under

28 U.S.C. § 1915(e)(2)(B)(i).

                                  BACKGROUND

      Tiedemann brought suit under 42 U.S.C. § 1983, alleging that the defendants,

a church and its leader, violated his constitutional rights by endangering his soul.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Because Tiedemann is a prisoner, the district court screened his lawsuit under 28

U.S.C. § 1915A and concluded that it failed to state a claim upon which relief can be

granted. The district court dismissed Tiedemann’s case and cited 28 U.S.C.

§ 1915A(b)(1), which requires dismissal of a complaint if it “is frivolous, malicious,

or fails to state a claim upon which relief may be granted . . . .”

      Tiedemann timely appealed. He filed in the district court a motion to proceed

in forma pauperis (IFP) on appeal. The district court denied Tiedemann’s motion

after concluding that Tiedemann had accumulated three strikes under the Prison

Litigation Reform Act (PLRA), 28 U.S.C. § 1915, and disallowed him from

proceeding on appeal without his prepaying the entire appellate-filing fee. See 28

U.S.C. § 1915(g).

                                     DISCUSSION

I.    Strikes under the Prison Litigation Reform Act

      Before addressing Tiedemann’s appeal, we consider whether he has

accumulated three strikes and must first prepay the appellate-filing fee. We conclude

that Tiedemann need not prepay, because before his present appeal he had

accumulated only two strikes.

      Congress passed the PLRA to address the “sharp rise in prisoner litigation in

the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006); 28 U.S.C. § 1915.

Under the PLRA, prisoners obtain a “strike” against them for purposes of future IFP

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

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which relief may be granted . . . .” 28 U.S.C. § 1915(g); Childs v. Miller, 713 F.3d

1262, 1265 (10th Cir. 2013). Once a prisoner accumulates three strikes, he must

prepay the entire filing fee before federal courts may consider his civil actions and

appeals. Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011).

      The district court denied Tiedemann leave to proceed IFP on appeal. It cited

three cases where it believed that Tiedemann had accumulated separate strikes under

the PLRA. First, the district court cited Tiedemann’s 2012 case that it had dismissed

under 28 U.S.C. § 1915(e)(2)(B) after concluding that it failed to state a claim upon

which relief could be granted. Tiedemann v. Corum, No. 2:11-CV-668, Doc. No. 10,

at 5 (D. Utah May 5, 2012). We agree that the dismissal of this case counts as a

strike. See Hafed, 635 F.3d at 1176 (noting that a dismissal under 28 U.S.C.

§ 1915(e)(2)(B) counts as a strike for PLRA purposes).

      Second, the district court concluded that a strike was warranted for a case that

Tiedemann had filed against law enforcement officers for violating his constitutional

rights during his arrest. There, the district court dismissed Tiedemann’s complaint for

failure to state a claim, but it appointed counsel to determine whether that case (and

others) alleged any viable claims to include in an amended complaint. Tiedemann v.

Stinson, No. 2:07-CV-00907-TC, Doc. No. 36, at 6–8 (D. Utah Jan. 27, 2009).

Appointed counsel later consulted with Tiedemann and told the district court that

Tiedemann wished to voluntarily dismiss the case. Tiedemann v. Stinson, No. 2:07-

CV-00907-TC, Doc. No. 46, at 2 (D. Utah Feb. 25, 2010). The district court then

dismissed the case and directed the clerk to close the matter. Id.

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      We disagree with the district court that this dismissal counts as a strike against

Tiedemann. The district court did not dismiss the case because of one of the statutory

factors in 28 U.S.C. § 1915(e). See Phillips v. Humble, 587 F.3d 1267, 1271 (10th

Cir. 2009); Moya v. Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006) (“Rather, we

‘endeavor to scrutinize [complaint dismissals] . . . closely in order to pinpoint those

situations wherein, in a practical sense, the district court by its order has dismissed a

plaintiff’s action as well.’” (quoting Petty v. Manpower, Inc., 591 F.2d 615, 617

(10th Cir. 1979) (alterations in original))). Instead, the district court appointed

counsel to determine whether Tiedemann had any claims that would merit an

amended complaint. Counsel concluded that Tiedemann did not and asked for a

voluntary dismissal of the case, which the district court granted. A voluntary

dismissal does not count as a PLRA strike. See Hafed, 635 F.3d at 1176 (stating that,

under the PLRA, a dismissal counts as a strike when an action or appeal “is

dismissed as frivolous, as malicious, or for failure to state a claim”).

      But we agree that the district court’s third case—its dismissal in this very

case—counts as a strike. The district court dismissed Tiedemann’s case for failure to

state a claim and cited 28 U.S.C. § 1915A. This dismissal counts as a strike for

PLRA purposes. See Childs, 713 F.3d at 1266 (assessing a strike for a district-court

dismissal under § 1915A). See also Coleman v. Tollefson, 135 S. Ct. 1759, 1763

(2015) (holding that a prior dismissal on a ground listed in § 1915 counts as a strike

even if the dismissal is the subject of an appeal).



                                            4
      We have reviewed Tiedemann’s remaining cases and all but one were

voluntary dismissals that do not count as strikes under the PLRA.1 Thus, Tiedemann

has only two strikes. He can proceed on appeal without prepaying the filing fee. But

we now assess a strike—Tiedemann’s third—in dismissing this appeal as frivolous.

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

1999) (imposing a strike for dismissal of frivolous appeal).

II.    Tiedemann’s Appeal

      We review de novo the dismissal of a complaint for failure to state a claim.

Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). Tiedemann is a pro se litigant,

so we view his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). But we will not serve as Tiedemann’s attorney in constructing arguments and

searching the record. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,

840 (10th Cir. 2005).

      The district court correctly dismissed Tiedemann’s lawsuit. To state a claim

under § 1983, a plaintiff must allege, among other things, that the defendant was


      1
         The remaining case, Tiedemann v. Salt Lake Cty. Adult Det. Ctr., No. 2:08-
CV-00298-DAK, was dismissed for a failure to prosecute. We noted in Hafed that a
dismissal for failure to prosecute would not necessarily count as a strike because the
dismissal would not be for grounds listed in § 1915. 635 F.3d at 1179. But we
assessed a strike for a dismissal based on failure to prosecute because the Seventh
Circuit also had determined that Hafed’s appeal was frivolous. Id. at 1179. Here, the
district court did not determine or state that Tiedemann’s case was frivolous, was
malicious, or failed to state a claim. Thus, this dismissal cannot count as a strike. See
id.; Butler v. Dep’t of Justice, 492 F.3d 440, 442–44 (D.C. Cir. 2007) (concluding
that a dismissal for failure to prosecute was not a strike because such a dismissal was
made without regard to the merits, and each of the three strike categories in § 1915(g)
involve dispositions looking to the merits).
                                           5
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). This requires

a defendant to have exercised power “possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law.” Id.

(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Tiedemann did not

allege in his complaint how the plaintiffs acted under color of state law.

      Even liberally construing his appellate pleadings, we discern no coherent

argument challenging the district court’s dismissal. Instead, we see Tiedemann

reiterating that the defendants are endangering his soul (and defining what the “soul”

means) and asserting that the district judge’s religious beliefs led him to an incorrect

decision. Tiedemann has not raised a reasoned, nonfrivolous argument on the law and

facts, and we dismiss his appeal.

                                    CONCLUSION

      We     dismiss   Tiedemann’s      appeal   as    frivolous   under     28   U.S.C.

§ 1915(e)(2)(B)(i). We also assess a strike for this frivolous appeal. See 28 U.S.C.

§ 1915(g). Tiedemann now has three strikes under § 1915(g). He is barred from

proceeding IFP in future civil actions or appeals in federal court unless he is “under

imminent danger of serious physical injury,” § 1915(g), and unless he makes

“specific [and] credible” allegations to that effect. Kinnell v. Graves, 265 F.3d 1125,

1127–28 (10th Cir. 2001). We deny Tiedemann’s motion to proceed IFP on this




                                           6
appeal, and we order immediate payment of the unpaid balance due.




                                         Entered for the Court


                                         Gregory A. Phillips
                                         Circuit Judge




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