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

                           FOR THE TENTH CIRCUIT                        March 14, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
KENDALL TRENT BROWN,

             Plaintiff-Appellant,

v.                                                        No. 12-3257
                                                 (D.C. No. 5:07-CV-03062-SAC)
GLEN KOCHANOWSKI; (FNU)                                     (D. Kan.)
NALLS; RANDALL MAIN; TINA
MILLER; (FNU) AUGUSTINE;
DEBORAH PRICE,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.


      Plaintiff-appellant Kendall Trent Brown is a prisoner of the State of Kansas

appearing pro se. He is currently housed at Hutchinson Correctional Facility in

Hutchinson, Kansas. Defendants-appellees include Sheriff Kochanowski of Saline

County, Kansas, and several employees at the Saline County Detention Center.


*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Brown appeals from the district court’s grant of summary judgment to defendants on

his federal claims that they mishandled his legal mail in violation of his First

Amendment rights and his state-law claim that they fraudulently charged him postal

fees on mail that was not sent.

       We dismiss the appeal as frivolous under the Prison Litigation Reform Act

(PLRA), 28 U.S.C. § 1915(e)(2) (“Notwithstanding any filing fee . . . that may have

been paid, the court shall dismiss the case at any time if the court determines that—

. . . (B) the . . . appeal—(i) is frivolous . . . .”). We also assess a strike under PLRA,

28 U.S.C. § 1915(g). And as explained below, Brown accumulated two strikes under

PLRA in 2008. As a result, Brown has now struck out from proceeding in forma

pauperis (ifp) in civil actions or appeals in federal court in the future unless he can

make credible allegations that he is in imminent danger of serious physical injury.

                                      I. Background

       Brown filed this civil rights suit under 42 U.S.C. § 1983, seeking damages for

alleged violations of his constitutional rights by the Saline County Jail, Saline County

Sheriff Glen Kochanowski, and Officer Nalls, the “correction[s] mail lady,”

R., Vol. I, at 23. He alleged that these defendants mishandled his legal mail and

engaged in postal fraud in and around November 2006, while he was housed at the

Saline County Detention Center. The district court ordered Brown to show cause

why his complaint should not be dismissed for failure to state a claim. Brown filed

an amended complaint, which again named Sheriff Kochanowski and Officer Nalls as


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defendants, but which no longer named the Saline County Jail. He also filed several

supplements to his initial and amended complaints.

      The district court reviewed Brown’s complaint, as supplemented and amended,

and dismissed it prior to service for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B). Brown appealed. We affirmed the dismissal in part, but we held

that Brown’s allegations that defendants had refused to process his outgoing mail,

had monitored his outgoing mail in a discriminatory manner, had monitored his

outgoing mail as punishment or discipline, and had prohibited him from taking his

mail with him to Larned State Hospital, stated claims for a violation of his First and

Fourteenth Amendment rights. Brown v. Saline Cnty. Jail, 303 F. App’x 678, 682-84

(10th Cir. 2008). We did not consider Brown’s state-law claim for postal fraud,

which had not yet been addressed by the district court. Id. at 684. We remanded the

case for additional proceedings. Id. at 685.

      On remand, Brown moved to amend his complaint to add Captain Augustine,

Program Director Tina Miller, and Pod Officers Main and Price as defendants. The

district court granted the motion, and Brown filed a second amended complaint,

which was served on all of the defendants. R., Vol. I, at 233. (The court denied

Brown’s motion to file a third amended complaint because he sought to add new

claims that were not based on the same core operative facts and were time-barred.)

In due course, defendants moved for summary judgment under Fed. R. Civ. P. 56(a),

arguing that the evidence showed that Brown’s mail was sent, that his allegations


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were speculative, that he had failed to exhaust his administrative remedies, that his

constitutional rights were not violated, and that he had no proof of fraud. Brown

filed a response in opposition and memorandum in support.

      The district court granted summary judgment to defendants in a thorough,

thirty-eight page Memorandum and Order. R., Vol. II, at 723-60. The court

reviewed the legal standards to be applied under Rule 56. Id. at 731-32. The court

also reviewed its duties toward Brown, as a pro se litigant. Id. at 732-33. The court

reviewed the elements Brown was required to prove for his First Amendment claims

related to defendants’ handling of his mail, id. at 743-45, and the elements he was

required to prove for his state-law fraud claim, id. at 757. But the court pointed out

that Brown had “not file[d] any affidavits or submit[ted] any other admissible

evidence to refute the evidence filed by the defendants in support of their motion for

summary judgment.” Id. at 733-34. The court considered the evidentiary value of

Brown’s deposition testimony. See id. at 739 n.2, 740-41, 743, 745-46, 748-49,

752-59.

      The district court rejected defendants’ argument that Brown had not shown a

material factual dispute as to whether he had exhausted his administrative remedies.

Id. at 735-41. But the district court granted summary judgment to all of the

defendants in their official capacities because Brown’s request for monetary relief

was barred by their Eleventh Amendment immunity. Id. at 741 n.3. The court also

granted summary judgment to Officer Main in his individual capacity because Brown


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conceded in his deposition and his summary judgment pleadings that he had not

alleged, and had no proof to support, any wrongdoing by Main. Id. at 743. The court

also granted summary judgment to Sheriff Kochanowski, Tina Miller, and Captain

Augustine because Brown had “conceded he lack[ed] a factual basis for alleging their

individual responsibility on [his] claims.” Id. at 754. And the court granted

summary judgment to Officer Price because Brown made only a conclusory assertion

that she had mishandled one letter and failed to provide any specific factual support

for his claim against her. Id. at 754-55.

       The district court otherwise explained why Brown’s scant evidence that the

remaining defendants mishandled his mail was “little more than speculation and bald

assertions,” id. at 746, was “too speculative, argumentative and conclusory for a

rational fact finder to find in his favor,” id. at 748, was “only his suspicions,

speculation and bald assertions,” Id. at 749-50, was lacking “any specific arguments

or proof,” id. at 752, was “not based on personal knowledge,” id. at 752-53, was

“inadmissible hearsay . . . [or] his own opinion and naked speculation,” id. at 753,

and did not constitute a “meaningful response to any of the defendants’ arguments,”

id. at 756.

       The district court also granted summary judgment to defendants on Brown’s

state-law fraud claim. Id. at 756-59. The court reviewed Brown’s deposition

testimony interpreting his inmate account summary and why he thought it showed

fraudulent charges. Id. at 758-59. The court concluded that Brown


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      presume[d] there [we]re fraudulent activities behind the voided
      transactions without offering any proof or reasonable inferences to
      support his naked conclusions. It is nothing but conjecture for the
      plaintiff to think that the voided transactions mean his mail was never
      sent, or that his account was never credited for the voided transactions,
      or that his account was assessed postage charges for mail which was
      never sent.

Id. at 759. Brown appeals.

                          II. Issues on Appeal and Discussion

      “We review the grant of summary judgment de novo applying the same

standard as the district court . . . .” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670

(10th Cir. 1998). Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “In applying this standard, we view the

factual record and draw all reasonable inferences therefrom most favorably to the

nonmovant.” Adler, 144 F.3d at 670 (citing, inter alia, Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Because Brown appears pro se, we

hold his pleadings “to less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

      At summary judgment, “[a]n issue is ‘genuine’ if there is sufficient evidence

on each side so that a rational trier of fact could resolve the issue either way.” Adler,

144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“An issue of fact is ‘material’ if under the substantive law it is essential to the proper

disposition of the claim.” Id. (citing Liberty Lobby, 477 U.S. at 248), “A motion for


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summary judgment that is supported by affidavits or other materials provided under

oath gives the adverse party notice that summary judgment is possible; the adverse

party must respond with affidavits or other evidence to show a genuine issue of

material fact.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[T]he facts

must be identified by reference to affidavits, deposition transcripts, or specific

exhibits incorporated therein.” Adler, 144 F.3d at 671.

      The district court held that Brown failed to produce any specific, admissible

evidence in support of his claims, but relied on speculation, opinion, bald assertions,

conjecture, and hearsay. Brown makes numerous arguments on appeal, but they are

conclusory. To summarize them, he argues that the defendants committed perjury,

that he did not have enough time to respond to their summary judgment motion or

enough finances to produce witness testimony, that the district court failed to

consider the full record of this case. and that counsel should have been appointed for

him. But he does not explain or describe any evidence supporting any of his claims

against any of the defendants, let alone point to where that evidence may be found in

the record.

      We conclude that this appeal is frivolous because Brown fails to point to any

specific, admissible evidence, or even explain what specific, admissible evidence he

presented, to withstand defendants’ motion for summary judgment. His appeal thus

“lack[s] an arguable basis in law,” which “is the equivalent of . . . frivolous[].”

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


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Williams, 490 U.S. 319, 325 (1989) for the definition of legal frivolousness);

cf. White v. Gen. Motors Corp., Inc., 908 F.2d 669, 675 (10th Cir. 1990) (holding that

a counseled plaintiff’s appeal challenging district court’s grant of summary judgment

to defendant was “a clear and obvious loser” due to that plaintiff’s “inability to

produce any evidence”).

       We have long held that “[a] pro se litigant . . . must follow the same rules of

procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917

(10th Cir. 1992). Brown’s conclusory arguments on appeal do not relate to his

evidentiary burden under Rule 56(a), and his arguments are utterly insufficient to

overturn the district court’s grant of summary judgment to defendants. He is not

excused based on his pro se status from pointing us to his evidence, and he failed

even to explain or describe any evidence in the record supporting his claims.

Cf. Hall, 935 F.2d at 1110 (“[A] pro se plaintiff requires no special legal training to

recount the facts surrounding his alleged injury, and he must provide such facts if the

court is to determine whether he makes out a claim on which relief can be granted.”).

                     III. Strikes under 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


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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).

       “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. (alteration in original) (internal

quotation marks omitted). The only exception to this rule is when “the prisoner is

under imminent danger of serious physical injury.” § 1915(g). To meet this

exception, “a prisoner who has accrued three strikes must make specific, credible

allegations of imminent danger.” Hafed, 635 F.3d at 1176 (alteration omitted)

(internal quotation marks omitted).

       In 2007, Brown filed three civil rights cases in federal court. We have

reviewed them and conclude that Brown had two clear strikes under Tenth Circuit

law before he filed the current appeal in this court.

       Brown’s first strike results from the dismissal in Brown v. Kochanowski,

D.C. No. 5:2007-cv-03264 (D. Kan.), a civil rights case he filed on October 17, 2007,


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while he was a prisoner of the State of Kansas. On May 23, 2008, the district court

dismissed the complaint prior to service for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii). Kochanowski, D.C. No. 5:2007-cv-03264, Doc. 8. A separate

judgment was also entered on May 23, 2008. Id., Doc. 9. Brown did not appeal, so

this dismissal ripened to be counted as a strike when his time to file a direct appeal

expired. See Hafed, 635 F.3d at 1176. He named only state defendants in this suit,

so it ripened to be counted against his eligibility to bring other civil actions or

appeals ifp on June 23, 2008. See Fed. R. App. P. 4(a)(1)(A).

       Brown’s second strike results from the dismissal in Brown v. Saline County

Board of County Commissioners, D.C. No. 5:2007-cv-03265 (D. Kan.), a second civil

rights suit he filed on October 17, 2007, while he was a prisoner of the State of

Kansas. On May 23, 2008, the district court dismissed the complaint prior to service

for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Saline Cnty. Bd. of

Cnty. Comm’rs, D.C. No. 5:2007-cv-03265, Doc. 6, at 2. A separate judgment was

also entered on May 23, 2008. Id., Doc. 7. Brown did not appeal. But because he

named the Post Office as a defendant in this suit, the strike ripened to be counted

against his eligibility to bring other civil actions or appeals ifp on July 22, 2008.

See Fed. R. App. P. 4(a)(1)(B).

       Brown’s third strike arises from our dismissal of his current appeal as

frivolous. It will ripen to be counted against his eligibility to bring other civil actions

or appeals ifp in federal court when the appellate process has been completed, either


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by the Supreme Court’s denial or dismissal of a petition for certiorari, if Brown 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).

       The appeal is dismissed.


                                                   Entered for the Court


                                                   Bobby R. Baldock
                                                   Circuit Judge




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