                                                                            FILED
                                                                United States Court of Appeals
                                     PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                      April 23, 2013

                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court


TERRY LEE CHILDS,

             Plaintiff-Appellant,

v.                                                        No. 12-6075

DAVID MILLER; BILL GIBSON;
M. HALVORSON, RN/Health Services
Administrator; GREGSTON, Doctor;
DR. CARNES; S. STOUFFER, LPN;
BROWN, Nurse’s Aid; HANNAH,
Security Officer,

             Defendants-Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. No. 5:10-CV-00439-HE)


Submitted on the briefs:*

Terry Lee Childs, Pro se.

Don G. Pope, Don G. Pope & Associates, P.C., Norman, Oklahoma, for
Defendants-Appellees.



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


BRISCOE, Circuit Judge.


      Terry Lee Childs is a prisoner of the State of Oklahoma appearing pro se.

He appeals from the district court’s dismissal of his civil rights case filed under

42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291.

                                     I. Background

      Mr. Childs is currently housed at the James Crabtree Correctional Center

(JCCC) in Helena, Oklahoma, but he was formerly housed at the Lawton Correctional

Facility (LCF) in Lawton. Mr. Childs filed this civil rights complaint under

42 U.S.C. § 1983, asserting that defendants, who were all employees of LCF,

violated state and federal law by delaying the refilling of his asthma medication

prescription in May 2008 in retaliation against him for exercising his federal

constitutional right to file administrative grievances about his medical care.

Defendants moved to dismiss the complaint for failure to state a claim under

Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment under

Fed. R. Civ. P. 56(a). The magistrate judge recommended that defendants’ motion to

dismiss be granted with respect to Mr. Childs’ two state-law claims. But the

magistrate judge concluded that Mr. Childs’ federal claim for retaliation for

exercising his First Amendment rights was not conclusory and recommended that it



                                          -2-
be allowed to proceed. Mr. Childs filed objections to the recommendation, as did

defendants.

      Exercising de novo review, the district court disagreed with the magistrate

judge’s recommendation as to the federal claim and, on August 29, 2011, entered an

order granting defendants’ motion to dismiss under Rule 12(b)(6) as to all three

claims. The court concluded that Mr. Childs had failed to sufficiently allege each

defendant’s participation in the alleged retaliation, but the court granted Mr. Childs

thirty days in which to amend his complaint to correct the deficiencies in his

purported federal claim, if he could.

      The district court ultimately granted Mr. Childs four extensions of time to file

his amended complaint, but gave him a final deadline of February 1, 2012, and

warned him not to expect any further extensions of time. On February 9, 2012,

Mr. Childs filed an untimely proposed amended complaint and requested a fifth

extension of time. Defendants opposed the motion. The district court determined

that Mr. Childs had failed to correct the defects in his existing retaliation claim and

had also added a new claim (without leave of court) based on seventeen pages of new

factual allegations. The court denied Mr. Childs’ motion for a fifth extension of time

and his motion to file his proposed amended complaint, and entered a judgment of

dismissal. Mr. Childs appeals the dismissal of his original complaint.




                                          -3-
                          II. Issues on Appeal and Discussion

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

under Rule 12(b)(6). Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010).

Because Mr. Childs appears pro se, we construe his pleadings liberally. Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per curiam). He argues that the district court

erred by: (1) dismissing his complaint; and (2) not adopting the magistrate judge’s

recommendation to allow his federal retaliation claim to proceed as alleged.

       We have carefully reviewed the parties’ briefs in light of the record and the

governing law. We find no error and affirm for substantially the reasons stated by

the district court in its August 29, 2011, and February 17, 2012, orders dismissing the

complaint.

 III. “Strikes” under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g)

       “Congress enacted the Prison Litigation Reform Act of 1995 (PLRA) . . . in

1996 in the wake of a sharp rise in prisoner litigation in the federal courts. . . .”

Woodford v. Ngo, 548 U.S. 81, 84 (2006). “The PLRA contains a variety of

provisions designed to bring this litigation under control.” Id. One of these

provisions is 28 U.S.C. § 1915(g), which Congress added “to revoke, with limited

exception, in forma pauperis privileges for any prisoner who has filed three or more

lawsuits that fail to state a claim, or are malicious or frivolous.” Skinner v. Switzer,

131 S. Ct. 1289, 1299-1300 (2011).




                                           -4-
       “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 which relief may be granted. . . .’” Hafed v. Fed. Bureau of Prisons, 635 F.3d

1172, 1176 (10th Cir. 2011) (quoting § 1915(g)) (alteration in original). “[T]he

‘three strikes’ provision of the ifp statute applicable to indigent prisoners[ ] requires

so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts

may consider their civil actions and appeals.” Id. (internal quotation marks omitted).

       Beginning in August 1993, Mr. Childs has filed several civil rights cases in

two district courts. As we explained in Green v. Nottingham, 90 F.3d 415, 420

(10th Cir. 1996), we “must consider cases dismissed prior to the effective date of

§ 1915(g) in determining whether the criteria for dismissal under § 1915(g) have

been satisfied.” Garcia v. Silbert, 141 F.3d 1415, 1417 (10th Cir. 1998).

Accordingly, we have reviewed all of Mr. Childs’ past cases for dismissals qualifying

as strikes, even though some of the cases were filed and adjudicated before PLRA

was enacted into law in 1996. We conclude that Mr. Childs had two clear strikes

under Tenth Circuit law before he filed the current appeal in this court.

       Mr. Childs’ first strike results from the dismissal in Childs v. Deboe,

D.C. No. 5:1993-cv-02138 (W.D. Okla.), a civil rights case he filed on December 2,

1993, while he was a prisoner of the State of Oklahoma. The magistrate judge

recommended that the complaint be dismissed prior to service as “duplic[ative],


                                           -5-
frivolous, and an abuse of judicial process.” Id., Doc. 6, at 3. The district court

adopted the recommendation and dismissed the complaint as “repetitive and an abuse

of process.” Id., Doc. 9, at 1-2. Mr. Childs did not appeal. As explained below, this

dismissal counts as a strike under Tenth Circuit law.

       When a pro se litigant files complaints that are repetitive, duplicative of other

filings, without merit, or frivolous, he abuses the district court process.

See Werner v. Utah, 32 F.3d 1446, 1447, 1449 (10th Cir. 1994). “[R]epetitious

litigation of virtually identical causes of action may be dismissed under [28 U.S.C.]

§ 1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d 573, 574

(10th Cir. 1997) (internal quotation marks omitted) (first alteration in original). “The

unnecessary burden placed upon the judicial process in adjudicating these frivolous

and malicious lawsuits is obvious.” Van Sickle v. Holloway, 791 F.2d 1431, 1437

(10th Cir. 1986). “[T]here is no constitutional right of access to the courts to

prosecute an action that is frivolous or malicious. . . . No one, rich or poor, is entitled

to abuse the judicial process.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)

(per curiam).

       Congress sought to curtail prisoner “abuse of the federal judicial system” by

amending the fee requirements of § 1915 in PLRA. Roller v. Gunn, 107 F.3d 227,

234 (4th Cir. 1997). We conclude that the dismissal of a complaint as repetitive and

an abuse of process constitutes a strike under § 1915(g), regardless of whether the

district court used the words “frivolous” or “malicious.” See Rivera v. Allin,


                                           -6-
144 F.3d 719, 731 (11th Cir. 1998) (holding that “[a]lthough the district court may

not have uttered the words ‘frivolous’ or ‘malicious,’” a case dismissed for abuse of

the judicial process, “is precisely the type of strike that Congress envisioned when

drafting section 1915(g)”), abrogated on other grounds by Jones v. Bock, 549 U.S.

199 (2007); see also Duvall v. Miller, 122 F.3d 489, 490 (7th Cir. 1997) (noting that

“[t]he prisoner who has brought three suits or appeals that lacked sufficient merit to

get beyond the pleadings[—]or that were an outright abuse of process[—]is not an

appealing candidate for a waiver of the filing fee in his fourth through nth cases, even

if he paid for the previous suits”).

       The dismissal of Mr. Childs’ complaint in Deboe was entered on the district

court docket on January 18, 1994, see D.C. No. 5:1993-cv-02138, Doc. 9, but the

court failed to file a judgment on a separate document as required by

Fed. R. Civ. P. 58. Because Mr. Childs did not appeal, and because he had named

only state officials as defendants, the strike ripened to be counted against his

eligibility to proceed ifp in other civil actions or appeals on May 30, 2003.

See Strope v. Cummings, 653 F.3d 1271, 1275-76 (10th Cir. 2011) (discussing the

effect of the December 1, 2002, revision to the separate document rule in Rule 58 on

the ripening of a strike); Fed. R. App. P. 4(a)(1)(A).

       Mr. Childs’ second strike results from the dismissal in Abshier v. Oklahoma

County Commissoners, D.C. No. 5:1996-cv-02075 (W.D. Okla.), a civil rights suit

filed on December 13, 1996, while Mr. Childs was a prisoner of the State of


                                          -7-
Oklahoma. He was a co-plaintiff in this suit. See id., Doc. 1. The magistrate judge

recommended that the complaint be dismissed prior to service under 28 U.S.C.

§ 1915A as “frivolous and malicious” because the complaint duplicated issues raised

by each of the plaintiffs in separate pending actions. Id., Doc. 3, at 1-3. The district

court adopted the recommendation “as though fully set forth herein” and dismissed

the complaint. Id., Doc. 10, at 2. The dismissal was entered on the docket on

April 1, 1997, see id., but the court failed to enter a judgment on a separate

document. Because Mr. Childs did not appeal, and because he had named only state

officials as defendants, this strike ripened to be counted against his eligibility to

proceed ifp in other civil actions or appeals on May 30, 2003. See Strope, 653 F.3d

at 1275-76; Fed. R. App. P. 4(a)(1)(A).

       Mr. Childs’ third strike arises from our decision to affirm in this appeal today.

The district court’s dismissal for failure to state a claim under Rule 12(b)(6) satisfies

the plain text of § 1915(g) and therefore will count as a strike. See Moore v.

Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011), cert .denied

132 S. Ct. 2777 (2012); Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir. 2007). In

this circuit, it is immaterial to the strikes analysis that the dismissal was without

prejudice. Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (per curiam). This

third strike will ripen to be counted against Mr. Childs’ eligibility to proceed ifp in

other civil actions or appeals in federal court when the appellate process has been

completed, either by the Supreme Court’s denial or dismissal of a petition for


                                           -8-
certiorari, if Mr. Childs files one, or when the time to file a petition for certiorari has

expired, if he does not. See Hafed, 635 F.3d at 1175; see also S. Ct. R. 13.1

(providing ninety days from entry of court of appeals’ judgment to file petition for

certiorari).

                                     IV. Conclusion

       The judgment of the district court is affirmed. Mr. Childs has accumulated

three strikes under 28 U.S.C. § 1915(g). As soon as the appellate process in

No. 12-6075 has been completed, he will be 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 he makes “specific [and] credible

allegations” to that effect. Kinnell v. Graves, 265 F.3d 1125, 1127-28 (10th Cir.

2001). Mr. Childs is reminded to continue making payments until the filing fee is

paid in full.1




1
        In Mr. Childs’ other appeal, No. 12-6184, Childs v. GEO Group, Inc., we
reversed and remanded with directions for the district court to divide the $455.00 fee
payment received on May 18, 2012, between his appeal in No. 12-6075 and his
district court case underlying No. 12-6184, as intended and ordered by the district
court. After the $350.00 filing fee has been transferred from the appeal in
No. 12-6075 to the district court case underlying No. 12-6184, Mr. Childs will
become obligated to resume making payments toward the filing fee in No. 12-6075
until it has been paid in full.


                                           -9-
