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

                             FOR THE TENTH CIRCUIT                         April 17, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 DAVID WAYNE ROBINSON ,

       Plaintiff - Appellant,

 v.                                                        No. 19-1379
                                               (D.C. No. 1:18-CV-01453-LTB-GPG)
 JARED POLIS, Governor, individual and                     (D. Colo.)
 official capacity; MICHAEL HANCOCK,
 Mayor, individual and official capacity;
 PHIL WEISER, Attorney General,
 individual and official capacity; FRAN
 GOMEZ, Sheriff, individual and official
 capacity,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT
                         _________________________________

Before MATHESON, BALDOCK, and KELLY, Circuit Judges.
                  _________________________________




      
       Jared Polis, Colorado’s current Governor, is substituted for Colorado’s
former Governor, John Hickenlooper.
      
         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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Pro se state prisoner David Wayne Robinson appeals from the district court’s

dismissal of his 42 U.S.C. § 1983 amended complaint as frivolous. We dismiss his

appeal as frivolous and deny him leave to proceed in forma pauperis (“ifp”) on

appeal. Further, because Mr. Robinson is subject to the three-strikes provision of the

Prison Litigation Reform Act (“PLRA”), we impose a strike under

28 U.S.C. § 1915(g).1

                                 I. BACKGROUND

      Mr. Robinson, a Colorado state prisoner, sued under § 1983 for alleged

violations of his civil rights when he was a pre-trial detainee at the Denver Detention

Facility (“DDF”). According to Mr. Robinson, because various state and local

officials collected a $30 fee when he was booked into the DDF, they infringed (1) his

due process rights, (2) the of separation of powers, and (3) his right to be free from

cruel and unusual punishment.

      The magistrate judge found Mr. Robinson’s initial complaint was deficient and

directed him to file an amended complaint within 30 days. When he failed to do so,

the magistrate judge reviewed the original complaint under 28 U.S.C.

§ 1915(e)(2)(B)(i). He recommended dismissal with prejudice as legally frivolous

because Mr. Robinson failed to plead factual allegations to support his claims.




      1
        Because Mr. Robinson is proceeding pro se, we construe his filings liberally,
but we do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
                                           2
      Shortly thereafter, Mr. Robinson filed a belated amended complaint,

explaining he had not received a copy of the magistrate judge’s order to file an

amended complaint until after the 30-day deadline expired. He asked the district

court to accept the untimely complaint for filing. Mr. Robinson did not raise any

substantive objections to the magistrate judge’s recommendation. He argued only

that the district court should accept his late-filed amended complaint, which the court

read to contain only a due process claim.

      The district court was “unconvinced” by Mr. Robinson’s explanation as to why

he failed to file a timely amended complaint. R. at 84. But the court determined that

even if it “were to accept and consider the amended prisoner complaint . . . the action

would still be dismissed” because the complaint “fails to assert factual allegations to

support an arguable due process claim.” Id. at 85. It dismissed Mr. Robinson’s

amended complaint with prejudice as legally frivolous and denied leave to proceed

ifp on appeal.2

                                  II. DISCUSSION

                              A. Mr. Robinson’s Claims

      We review a district court’s order dismissing claims as frivolous under

§ 1915(e)(2)(B)(i) for an abuse of discretion. See Fogel v. Pierson, 435 F.3d 1252,


      2
        On appeal, Mr. Robinson maintains he was not at fault for failing to file a
timely amended complaint. Because the district court overlooked the untimely filing
and reviewed the amended complaint, timeliness “has no bearing on the ultimate
outcome of this case,” and we will not address it on appeal. Orr v. City of
Albuquerque, 417 F.3d 1144, 1154 (10th Cir. 2005).

                                            3
1259 (10th Cir. 2006). If the district court based its frivolousness determination a

legal determination, we review that issue de novo. Id.

1. Separation of Powers and Cruel and Unusual Punishment

      The magistrate judge determined the original complaint failed to assert factual

allegations to support the claims of separation of powers3 or cruel and unusual

punishment and recommended they be dismissed as legally frivolous. Although

Mr. Robinson alludes to these claims in his brief, he has waived appellate review

because he did not object to these findings and recommendations. “We have adopted

a firm waiver rule when a party fails to object to the findings and recommendations

of the magistrate.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)

(brackets and internal quotation marks omitted). “The failure to timely object to a

magistrate’s recommendations waived appellate review of both factual and legal

questions.” Id. (internal quotation marks omitted). See also United States v. 2121 E.

30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (finding a general objection insufficient

to preserve appellate review of specific issues).

2. Due Process

      The magistrate judge determined that “[i]n order to pursue a due process

claim, [Mr. Robinson] must file an amended prisoner complaint that adequately

alleges that the booking fee either deprived him of liberty or that he was entitled to a



      3
        We are unaware of any authority, and Robinson has cited none, that the
doctrine of separation of powers is a source of individual rights actionable under
§ 1983.
                                           4
refund of the booking fee but the post-deprivation remedies are inadequate.” R. at 54

(internal quotation marks omitted). In its review of the amended complaint, the

district court found that Mr. Robinson “has not adequately asserted factual

allegations to support a procedural due process claim for the same reasons as stated

in [the magistrate judge’s recommendation]. As a result, the only claim asserted in

the amended prisoner complaint suffers from the same deficiencies as the initial

complaint.” Id. at 86.

       On appeal, Mr. Robinson fails to address these deficiencies. Instead, he argues

that “[t]here should have been no such deprivation . . . to begin with.” Aplt. Opening

Br. at 7. This perfunctory argument is insufficient to invoke this court’s review. See

Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“[P]erfunctory”

allegations of error that “fail to frame and develop an issue [are] [in]sufficient to

invoke appellate review.”).

                              B. Strike for Frivolousness

       The three-strikes provision, § 1915(g), states that after a prisoner files three

civil “action[s] or appeal[s]” that are dismissed as “frivolous, malicious, or [for

failure] to state a claim,” he is no longer entitled to proceed ifp unless he is in

“imminent danger of serious physical injury.” A claim is frivolous “where it lacks an

arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       Mr. Robinson has filed three civil rights cases, including this one, related to

his pre-trial detention at the DDF. All of them have produced § 1915(g) strikes, first

in Robinson v. Coffman, No. 18-cv-01455-GPG, 2019 WL 8223565 (D. Colo. Mar. 7,

                                             5
2019), and then in Robinson v. Firman, No. 18-cv-01494 (D. Colo. Feb. 21, 2019),

which were both dismissed as frivolous. Strike three was assessed in this case when

the district court dismissed the amended complaint as frivolous. Robinson v.

Hickenlooper, No. 18-cv-01453 (D. Colo. Apr. 23, 2019).4

       Mr. Robinson’s brief simply reiterates his amended complaint’s conclusory

averments—namely, that the booking fee violates due process and is part of a corrupt

scheme to collect money from pre-trial detainees. He does not address the district

court’s conclusion that his amended complaint was frivolous or attempt to

demonstrate that his claims do not meet the § 1915(e)(2)(B)(i) standard for frivolity.

We therefore assess the fourth strike here for a frivolous appeal.

                                 III. CONCLUSION

       We dismiss Mr. Robinson’s appeal as frivolous, deny his motion for ifp status,

and impose a strike under the PLRA. We remind Mr. Robinson of his obligation to

pay the filing fee in full.


                                                 Entered for the Court


                                                Scott M. Matheson, Jr.
                                                Circuit Judge




       4
        Although the district court’s strike here was Robinson’s third, we permitted
him to proceed ifp in this appeal.
                                           6
