Case: 18-2081     Document: 50    Page: 1   Filed: 02/19/2020




   United States Court of Appeals
       for the Federal Circuit
                   ______________________

                VICTOR C. FOURSTAR, JR.,
                    Plaintiff-Appellant

                   JUDY RAE REDBOY,
                        Plaintiff

                             v.

                     UNITED STATES,
                     Defendant-Appellee
                   ______________________

                         2018-2081
                   ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:18-cv-00405-EDK, Judge Elaine Kaplan.
                  ______________________

                 Decided: February 19, 2020
                  ______________________

    VICTOR C. FOURSTAR, JR., Billings, MT, pro se.

     P. DAVIS OLIVER, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for defendant-appellee. Also represented by
 JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN
 MISHA PREHEIM.
                  ______________________
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 2                                 FOURSTAR v. UNITED STATES




     Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
 NEWMAN, Circuit Judge.
     Mr. Victor C. Fourstar, Jr., on March 15, 2018, while
 incarcerated at the Federal Correctional Institution in
 Florence, Colorado, filed a Tucker Act Complaint in the
 United States Court of Federal Claims, accompanied by a
 Motion for Leave to Proceed In Forma Pauperis. Com-
 plaint, Fourstar v. United States, No. 18-405-EDK (Fed. Cl.
 Mar. 15, 2018), ECF No. 1 (“Complaint”); Motion for Leave
 to Proceed In Forma Pauperis, Fourstar v. United States,
 No. 18-405-EDK (Fed. Cl. Mar. 15, 2018), ECF No. 5. His
 complaint asserts that the government is mismanaging
 certain Indian properties and resources, and states the is-
 sue of his Tucker Act claim:
      [T]he United States acting as trustee under color of
      federal law in their official capacity did breach
      their trust in connection with the United States
      management of forested resources, road building
      and rights of way, Indian funds and government
      fees, and regulations promulgated under their
      money-mandating statutes 25 U.S.C. §§ 406, 407 &
      25 U.S.C. §§ 318a, 323–325; 25 U.S.C. §§ 162a, 413,
      respectively.
 Complaint at 3. The Court of Federal Claims denied his
 motion to proceed in forma pauperis on the basis of 28
 U.S.C. § 1915(g), which provides:
      In no event shall a prisoner bring a civil action or
      appeal a judgment in a civil action or proceeding
      under this section if the prisoner has, on 3 or more
      prior occasions, while incarcerated or detained in
      any facility, brought an action or appeal in a court
      of the United States that was dismissed on the
      grounds that it is frivolous, malicious, or fails to
      state a claim upon which relief may be granted,
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 FOURSTAR v. UNITED STATES                                  3



     unless the prisoner is under imminent danger of
     serious physical injury.
 This provision, enacted as part of the Prison Litigation Re-
 form Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat.
 1321 (1996), is called the “three-strikes rule.”
      The Court of Federal Claims found that “Mr. Fourstar
 [] is currently incarcerated, and has, on more than three
 occasions while incarcerated, filed complaints or appeals in
 a court of the United States that were dismissed as frivo-
 lous, malicious, or for failure to state a claim.” 1 Fed. Cl.
 Order at 1 (internal citation omitted). The court also found
 that “[t]he dangers that [Mr. Fourstar] alleges in his appli-
 cation [] lack supporting detail, imminence, and/or any con-
 nection to the claims in this lawsuit.” Id. at 2. The court
 then required him to pay the filing fee, in the amount of
 $400. Id. at 3. When Mr. Fourstar did not pay the fee, the
 court dismissed his complaint. Fed. Cl. Op. at 2. He ap-
 peals the denial of his motion to proceed in forma pauperis,
 and dismissal of his complaint. Federal Circuit jurisdiction
 is pursuant to 28 U.S.C. § 1295(a)(3).
 Appeal to the Federal Circuit
     On April 9, 2018, Mr. Fourstar was released from
 prison. On June 8, 2018, Mr. Fourstar timely filed a Notice
 of Appeal. On October 1, 2018, Mr. Fourstar filed a state-
 ment that he was arrested and detained on September 1,
 2018. On January 31, 2019, Mr. Fourstar filed a motion to
 proceed in forma pauperis in this court pursuant to 28
 U.S.C. § 1915.




     1   Fourstar v. United States, No. 18-00405-EDK (Fed.
 Cl. Apr. 3, 2018) (“Fed. Cl. Order”); dismissal (Fed. Cl. May
 9, 2018) (“Fed. Cl. Op.”); on reconsidn. No. 2018-2081 (Fed.
 Cir. Feb. 26, 2019).
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 4                                 FOURSTAR v. UNITED STATES




      Because Mr. Fourstar was not a prisoner at the time of
 filing his appeal, § 1915 is not applicable. See Millhouse v.
 Heath, 866 F.3d 152, 157−58 (3d Cir. 2017) (“Under the
 plain language of the PLRA, it is the filing of the notice of
 appeal that ‘triggers’ the three strikes rule”); see also Har-
 ris v. City of New York, 607 F.3d 18, 21–22 (2d Cir. 2010)
 (section 1915(g) requires prisoner status “at the moment
 of” filing the civil action or appeal). We apply Federal Rule
 of Appellate Procedure 3(a)(2):
     (a) Filing the Notice of Appeal.
                           ***
     (2) An appellant’s failure to take any step other
     than the timely filing of a notice of appeal does not
     affect the validity of the appeal, but is ground only
     for the court of appeals to act as it considers appro-
     priate, including dismissing the appeal.
 We deem it appropriate to accept this appeal for the pur-
 pose of reviewing the dismissal action of the Court of Fed-
 eral Claims, and do not require payment of the filing fee.
 Review of Action of the Court of Federal Claims
      Courts of the United States have authority to grant
 in forma pauperis status to litigants. Denton v. Hernandez,
 504 U.S. 25, 33–34 (1992) (discussing an earlier form of the
 PLRA). Denials of in forma pauperis status are reviewed
 for abuse of discretion. Id. (discussing frivolousness deter-
 mination); Bryant v. United States, 618 F. App’x 683, 685
 (Fed. Cir. 2015). Abuse of discretion may arise on an error
 of law, clearly erroneous fact finding, or a clear error of
 judgment. Qingdao Taifa Grp. Co. v. United States, 581
 F.3d 1375, 1379 (Fed. Cir. 2009).
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 FOURSTAR v. UNITED STATES                                  5



                              A
                 The Three Strikes Rule
     Mr. Fourstar states that the Court of Federal Claims
 improperly denied his request to proceed in forma pau-
 peris. He states that he brought a meritorious Tucker Act
 claim, and his claim was not “frivolous or malicious,” the
 words of Section 1915(g). He also states that he meets the
 statutory exception of being “under imminent danger of se-
 rious physical injury,” 28 U.S.C. § 1915(g).
      The government recites several actions Mr. Fourstar
 filed that were dismissed because they were either frivo-
 lous or failed to state a claim: Fourstar v. Outlaw, No.
 1:07cv11, 2007 WL 2427996 (E.D. Tex. Aug. 22, 2007), ap-
 peal dismissed, 283 F. App’x 209 (5th Cir. 2008) (failure to
 state a claim); Fourstar v. Martinez, 541 F. App’x 494
 (Mem.) (5th Cir. 2013) (frivolous); and Fourstar v. Murlak,
 No. CV 07-5892 (C.D. Cal. Sept. 3, 2009) (frivolous and fail-
 ure to state a claim). In addition, the Court of Federal
 Claims cited a wrongful arrest and imprisonment case
 wherein it “prohibited [Mr. Fourstar] from filing any claim
 in the United States Court of Federal Claims under Section
 1915.” Fourstar v. United States, 122 Fed. Cl. 596, 599–
 600, 600 n.7 (2015).
     The Court of Federal Claims did not abuse its discre-
 tion when it held that the three-strikes rule was met by Mr.
 Fourstar’s litigation history.
                              B
     Imminent Danger of Serious Physical Injury
     Mr. Fourstar states that the exception to the three-
 strikes rule applies to his action in the Court of Federal
 Claims because he is “under imminent danger of serious
 physical injury” due to the “on-going common scheme by
 the defendant(s) to illegally construct the Keystone XL
 Pipeline and that if the Keystone XL Pipeline breaks or
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 6                                 FOURSTAR v. UNITED STATES




 leaks it will poison [his] drinking water source [the Mis-
 souri River],” Fed. Cl. Order at 2 (internal quotation marks
 omitted), and “leaked Canada tar-sands oil on the Standing
 Rock Indian Reservation” from the Dakota Access Pipeline,
 Fed. Cl. Op. at 1. He further states that, he is “under im-
 minent danger of serious physical injury” because the med-
 ical staff at the detention facility in Florence, Colorado,
 where he was detained, denied him knee and rotator cuff
 surgery and dental care, causing severe pain and suffering;
 exposed him to tuberculosis without proper screening and
 treatment, causing shortness of breath and weight loss;
 and denied him anxiety and depression medication. Fed.
 Cl. Order at 2.
     Mr. Fourstar’s Tucker Act Complaint concerns the gov-
 ernment’s management of Indian properties and resources.
 Rulings of regional circuits guide that “§ 1915(g) allows a
 three-strikes litigant to proceed [in forma pauperis] only
 when there exists an adequate nexus between the claims
 he seeks to pursue and the imminent danger he alleges,”
 and “requires that the prisoner’s complaint seek to redress
 an imminent danger of serious physical injury and that
 this danger must be fairly traceable to a violation of law
 alleged in the complaint.” Pettus v. Morgenthau, 554 F.3d
 293, 296, 297 (2d Cir. 2009). Additionally, “[a] plaintiff
 must [] show that his complaint alleged facts from which a
 court, informed by its judicial experience and common
 sense, could draw the reasonable inference that [he] was
 under an existing danger at the time he filed his com-
 plaint.” Vandiver v. Prison Health Servs., Inc., 727 F.3d
 580, 585 (6th Cir. 2013) (internal quotation marks omitted)
 (third alteration in original). Precedent embodies the
 premise that imminent physical injury and personal dan-
 ger are the intended focus of the statutory exception to the
 three-strikes rule.
     Here, Mr. Fourstar states that he is “under imminent
 danger of serious physical injury” because of the alleged il-
 legal construction of the Keystone XL Pipeline and possible
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 FOURSTAR v. UNITED STATES                                   7



 poisoning if it breaks, and leakage of Canada tar-sands oil
 on the Standing Rock Indian Reservation. The Court of
 Federal Claims deemed this argument as too speculative
 and attenuated to qualify as “imminent danger.” The court
 stated that “Mr. Fourstar . . . is currently incarcerated in
 Wolf Point, Montana. The Standing Rock Sioux Indian
 Reservation straddles North and South Dakota and encom-
 passes all of Sioux County in North [Dakota] and all of
 Corson County, and small parcels in Ziebach and Perkins
 Counties in South Dakota,” and “Mr. Fourstar does not ex-
 plain how an alleged pipeline leak in another state is caus-
 ing him imminent danger of serious physical injury.” Fed.
 Cl. Op. at 2 (internal quotations marks omitted).
      Mr. Fourstar’s further contention that he is “under the
 imminent danger of physical injury” because the medical
 staff at the detention center denied him surgical, dental,
 and medical care, is unfounded. He shows no relation to
 his Tucker Act assertions concerning management of In-
 dian properties and resources. “Absent some nexus be-
 tween a complaint’s claims and its allegation that a
 plaintiff is under imminent danger of serious physical
 harm, the injury-in-fact that Congress so carefully ex-
 cepted from the general requirement that a three-strikes
 litigant pay his filing fees could go unaddressed by the liti-
 gation—a result clearly contrary to the raison d'être of the
 exception itself.” Pettus, 554 F.3d at 298.
      The Court of Federal Claims reasonably determined
 that Mr. Fourstar was not subject to the statutory excep-
 tion to the three-strikes rule. Thus, the court did not abuse
 its discretion in denying Mr. Fourstar’s request to proceed
 in forma pauperis. We affirm the decision to dismiss Mr.
 Fourstar’s complaint without prejudice, when he did not
 pay the filing fee in the Court of Federal Claims.
                         AFFIRMED
     No costs.
