                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 19, 2012
                      UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                                    TENTH CIRCUIT


 JACOB BARRETT,

          Plaintiff - Appellant,
                                                        No. 12-7010
 v.                                         (D.C. No. 6:11-CV-00423-RAW-SPS)
                                                         (E.D. Okla.)
 RANDY WORKMAN, Warden,
 Oklahoma State Penitentiary; DEBBIE
 MORTON, Deputy Director,
 Oklahoma Department of Corrections;
 CHAD BROWN, Case Worker,
 Oklahoma State Penitentiary, TERRY
 CRENSHAW, Assistant Warden,
 Oklahoma State Penitentiary; TRACY
 DAVIS, Unit Manager, Oklahoma
 State Penitentiary; SGT. MAJOR, Unit
 Supervisor, Oklahoma State
 Penitentiary; LT. JANE DOE, Unit
 Supervisor, Oklahoma State
 Penitentiary; MR. APALA, Case
 Worker, Oklahoma State Penitentiary;
 DAVID ORMAN, Mailroom
 Administrator, Oklahoma State
 Penitentiary; ERIK TAYLOR, Case
 Worker, Oklahoma State Penitentiary;
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *

      *
        This order and judgment is not binding precedent, except under the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.
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Plaintiff-Appellant, Jacob Barrett, an Oregon prisoner incarcerated in New

Mexico and proceeding pro se, appeals the district court’s denial of his motion to

proceed without prepayment of filing fees, claiming that he is not subject to the

“three strikes” provision in the Prisoner Litigation Reform Act (“PLRA”), 28

U.S.C. § 1915(g), and, alternatively, that he falls under the exception to the “three

strikes” rule because he faces “imminent danger of serious physical injury,” id.

Although the order being appealed from denied Mr. Barrett in forma pauperis

(“IFP”) status in the district court, he also must obtain that status here. We

conclude that he is barred by § 1915(g), deny him leave to proceed IFP, and

dismiss his appeal.



                                    Background

      Mr. Barrett initiated this action in 2010, bringing suit in the District of

Oregon against Oregon and Oklahoma officials. Aplt. Br. 2. The court dismissed

the suit against the Oregon defendant and dismissed the complaint, leaving open



      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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the opportunity to re-file against the Oklahoma defendants in the Eastern District

of Oklahoma. Id. Mr. Barrett re-filed in the Eastern District of Oklahoma, and

that court denied his motion to proceed IFP pursuant to 28 U.S.C. § 1915(g).

Aplt. App. 21-22. He filed a motion for reconsideration, id. at 23-27, and before

receiving a response from the district court, he filed a notice of appeal, id. at 28.

The district court subsequently denied his motion to reconsider, id. at 30-32, but

he did not amend his notice of appeal.

      This court filed an order to show cause on February 24, 2012, challenging

Mr. Barrett’s failure to pay fees in advance. He filed a response on March 2,

2012. We consider that issue, resolve the issue against him, deny IFP, and

dismiss his appeal.



                                      Discussion

      As a threshold matter, Mr. Barrett did not appeal the district court’s denial

of his motion for reconsideration as he filed this appeal before the court issued an

order. Id. at 23-27, 28. Therefore, we do not have jurisdiction to review that

district court decision. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d

1282, 1295 (10th Cir. 2008). We will review, however, the district court’s

original denial of Mr. Barrett’s motion to proceed IFP.

      Mr. Barrett admits that one of his prior cases, Barrett v. Cook, No. 02-CV-

515-TC (D. Or. May 10, 2002) counts as a strike. We agree that this case counts

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as strike one.

      Second, Barrett v. Belleque, No. 05-CV-1774 (D. Or. Feb. 23, 2006), was

dismissed as frivolous and for failure to state a claim. Though Mr. Barrett argues

that the law has changed since this case, and that a subsequent case that he filed

on similar facts was found by the Ninth Circuit to actually state a claim for relief,

Aplt. Br. 7; see Barrett v. Belleque, 544 F.3d 1060 (9th Cir. 2008), his arguments

fail. Though the subsequent case may have been based on similar facts, it did not

change the holding in the previous case that Mr. Barrett had failed to state a

claim—a situation covered expressly by § 1915(g). This case is strike two.

      Finally, in his response to our order to show cause, Mr. Barrett claims that

Barrett v. Williams, No. 10-CV-439 (D. Or. June 16, 2010), does not count as a

strike because the court only dismissed claims against the Oregon defendant for

failure to state a claim, and allowed the case to be transferred to Oklahoma—the

precursor to this action. See Response to Order to Show Cause, Barrett v.

Workman, No. 12-7010, at 3 (10th Cir. Mar. 2, 2012) (hereinafter “Response to

Order to Show Cause”). Based on the recent case Thomas v. Parker, 672 F.3d

1182 (10th Cir. 2012), a mixed petition, dismissed in part for failure to state a

claim, can count as a strike for purposes of the PLRA. Id. at 1184. Therefore,

this was Mr. Barrett’s third strike.

      Alternatively, Mr. Barrett argues that even if he does have three strikes

against him, he has alleged facts to meet the imminent danger exception to

                                         -4-
§ 1915(g). Aplt. Br. 9-13. We disagree. Mr. Barrett argues that preventing him

from having access to the courts based on the three-strike rule will make him an

easy target, placing him in imminent danger of having his rights violated by

prison officials without redress. Id. at 10-12. He also argues that he was

physically retaliated against for bringing suits against prison officials, had legal

documents destroyed, and was labeled a “snitch.” See Response to Order to Show

Cause at 4-5. This circuit has stated that to meet the imminent danger exception,

an appellant is required to make “specific, credible allegations of imminent-

danger of serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d

1172, 1179 (10th Cir. 2011). This requires that the prisoner show imminent

danger “at the time he filed his complaint.” Id. Mr. Barrett has failed to do so

here. Instead, he alleges things that have happened in the past, or that he fears

will happen in the future. This does not fulfill the imminent-danger requirement.

       The order to show cause is discharged, we DENY Mr. Barrett’s motion to

proceed IFP, and DISMISS the appeal. Appellant is ordered to immediately pay

the filing fee in full.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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