                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 8, 2016
                 U N I T E D S T A T E S C O U R T O F A P P E AElisabeth
                                                                LS        A. Shumaker
                                                                  Clerk of Court
                        FOR THE TENTH CIRCUIT
                     _________________________________

JAMES R. DAWSON, JR.,

       Plaintiff - Appellant,

v.                                                     No. 15-1365
                                          (D.C. No. 1:14-CV-01919-MSK-NYW)
CYNTHIA COFFMAN,                                        (D. Colo.)

      Defendant - Appellee.
                  _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________


      Mr. James Dawson, Jr. filed a complaint under 42 U.S.C. § 1983,

alleging denial of due process and equal protection. The district court

dismissed the complaint for failure to state a valid claim, and we affirm.




*
     The parties have not requested oral argument, and it would not
materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal
based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
I.   The Taking of Blood and Urine Samples, the Conviction, and
     Amendment of State Law

     Facing state charges involving violent crimes, Mr. Dawson alleged

diminished capacity based on intoxication and a drug-related mental

impairment. In light of these allegations, the state trial court ordered law

enforcement officers to take blood and urine samples from Mr. Dawson.

The samples were collected but not tested.

     The jury found Mr. Dawson guilty of second-degree murder,

attempted second-degree murder, second-degree assault, and commission

of a crime of violence. Mr. Dawson’s blood and urine samples were

subsequently lost or destroyed.

     Many years later, Colorado amended its laws to authorize judicial

remedies when law enforcement officials negligently lose or destroy

biological evidence. See Colo. Rev. Stat. § 18-1-414(b). Mr. Dawson

learned that his blood and urine samples were no longer available and

invoked the new law, but the state courts denied relief on grounds that

the new law (1) did not apply when a criminal suspect presents a

diminished-capacity defense because the law applies only to a defense of

actual innocence and (2) applies only to DNA evidence, not to blood and

urine samples collected to test the presence of intoxicants.




                                     2
II.    Mr. Dawson’s Claims and Our Disposition

       Dissatisfied with the state-court outcome, Mr. Dawson brought the

present action, claiming that the limitations on the new law constituted

denials of due process and equal protection. 1 With these claims, Mr.

Dawson requested leave to avoid prepayment of the filing fee.

       The district court denied relief from the prepayment obligation and

dismissed the claims. Mr. Dawson renews his request for leave to proceed

without prepayment of the filing fee and appeals the dismissal.

       We grant Mr. Dawson relief from the prepayment obligation but

affirm the dismissal.

III.   Leave to Avoid Prepayment of the Filing Fee

       Ordinarily, appellants must prepay the filing fee before we will

entertain an appeal. Fed. R. App. P. 3(e). An exception exists for



1
      Mr. Dawson also argues that the district court erred by
(1) recharacterizing his claims as challenges to the state court judgment,
(2) recharacterizing his § 1983 suit as an application for relief under 28
U.S.C. § 2254, and (3) holding that his claims were time barred. The
district court did none of these things. The district court

       !    expressly declined to construe Mr. Dawson’s claims as
            challenges to the state-court judgment,

       !    held that § 1983, rather than § 2254, was the proper vehicle
            for Mr. Dawson’s claims, and

       !    declined to decide whether the claims were time barred.

                                     3
indigent litigants. 28 U.S.C. § 1915(a)(1) (2012). This exception applies

because Mr. Dawson is indigent, preventing him from prepaying the

filing fee. As a result, we grant relief from the prepayment obligation. 2

IV.   Dismissal of the Due Process and Equal Protection Claims

      The district court concluded that the statutory limitations on relief

did not violate Mr. Dawson’s right to due process or equal protection.



2
      As a prisoner, Mr. Dawson is subject to the Prison Litigation
Reform Act. This statute restricts relief from the prepayment obligation
when a prisoner has brought at least three “prior” suits that had been
dismissed based on frivolousness, maliciousness, or failure to state a
valid claim. 28 U.S.C. § 1915(g) (2012).

     Before filing this appeal, Mr. Dawson brought two suits that had
been dismissed for frivolousness or failure to state a valid claim. This
appeal involves Mr. Dawson’s third dismissal for frivolousness,
maliciousness, or failure to state a valid claim.

      The Supreme Court recently noted the existence of an open question
on whether the appeal of a prisoner’s third dismissal triggers the
statutory restriction on relief from the prepayment obligation. Coleman
v. Tollefson, __ U.S. __, 135 S. Ct. 1759, 1765 (2015). But we had
previously held in Pigg v. FBI that a third dismissal does not trigger the
statutory restriction when the third dismissal is the ruling being
appealed. Pigg v. FBI, 106 F.3d 1497, 1498 (10th Cir. 1997) (per
curiam). For this holding, we relied on the common understanding of the
word “prior” in § 1915(g). Id. A dismissal would not be considered
“prior” if it is the decision underlying the appeal. Id.; accord Richey v.
Dahne, 807 F.3d 1202, 1209-10 (9th Cir. 2015) (concluding that the
appeal of a third dismissal should not count as a “prior occasion,” relying
in part on Coleman v. Tollefson, __ U.S. __, 135 S. Ct. 1759 (2015)).

      Under Pigg, this appeal of Mr. Dawson’s third dismissal does not
restrict his eligibility for relief from the prepayment obligation.

                                       4
Accordingly, the district court dismissed the complaint for failure to

state a valid claim.

      We review this dismissal de novo. Janke v. Price, 43 F.3d 1390,

1391 (10th Cir. 1994). In conducting de novo review, we accept as true

all of Mr. Dawson’s well-pleaded factual allegations and view them in

the light most favorable to Mr. Dawson. See Smith v. United States, 561

F.3d 1090, 1097 (10th Cir. 2009). The resulting question is whether the

complaint contains facts stating a plausible claim for relief. Id.

      The district court’s explanation for the dismissal is thorough and

persuasive. As the district court explained, Colorado may set rational

limits on its newly authorized judicial remedy for the loss or destruction

of biological evidence. These statutory limits precluded Mr. Dawson

from obtaining a judicial remedy because he did not claim actual

innocence in his state-court criminal proceedings, and his blood and

urine samples did not involve DNA evidence. As the district court

explained, Mr. Dawson’s inability to obtain a judicial remedy did not

result in a denial of due process or equal protection. Accordingly, we

affirm the dismissal.

                                    Entered for the Court


                                    Robert E. Bacharach
                                    Circuit Judge

                                       5
