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

                             FOR THE TENTH CIRCUIT                        November 8, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 ARTHUR J. LOMAX, a/k/a Arthur James
 Lomax,

       Plaintiff - Appellant,
                                                             No. 18-1250
 v.                                             (D.C. No. 1:18-CV-00321-GPG-LTB)
                                                            (D. Colorado)
 CHRISTINA ORTIZ-MARQUEZ;
 MATASHA KINDRED; DANNY
 DENNIS; MARY QUINTANA,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________


      Arthur J. Lomax appeals the district court’s order denying him leave to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court denied

Mr. Lomax’s motion as barred by the three-strikes provision, 28 U.S.C. § 1915(g).

Because Mr. Lomax has accumulated three strikes prior to commencing this action,



      *
         After examining Mr. Lomax’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in 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is not binding precedent, except under the doctrines of law of the case, res judicata,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
and because he has not alleged sufficient imminent danger, we affirm the judgment of

the district court.

                              I.     BACKGROUND

       Mr. Lomax is a Colorado prisoner at the Limon Correctional Facility.

Mr. Lomax was previously incarcerated at the Centennial Correctional Facility and

filed a complaint naming, as defendants, five Centennial Correctional Facility

employees and a member of the Central Classification Committee at Offender

Services. Mr. Lomax also filed a motion for leave to proceed in forma pauperis

pursuant to 28 U.S.C. § 1915. Upon direction of the district court, Mr. Lomax

amended his complaint. Through his amended complaint, Mr. Lomax alleged Fifth,

Eighth, Ninth, and Fourteenth Amendment violations stemming from his expulsion

from the Sex Offender Treatment and Monitoring Program at Centennial Correctional

Facility.

       The same district court dismissed three of Mr. Lomax’s previous actions on

the grounds that they failed to state a claim. In Lomax v. Hoffman, No.

13-02131-BNB¸ 2013 U.S. Dist. LEXIS 115589, at *4–5 (D. Colo. Aug. 15, 2013),

the district court dismissed the action as barred by Heck v. Humphrey, 512 U.S. 477

(1994) (holding that a litigant cannot bring a § 1983 claim challenging a conviction’s

legitimacy until that conviction has been dismissed). The district court dismissed Mr.

Lomax’s second action, Lomax v. Hoffman, No. 13-cv-03296-BNB, 2014 U.S. Dist.

LEXIS 8230, at *3 (D. Colo. Jan. 23, 2014), also based on the action being barred by

Heck. Mr. Lomax brought a third action, Lomax v. Lander, No.

                                          2
13-cv-00707-WJM-KMT, 2014 U.S. Dist. LEXIS 55056 (D. Colo. Apr. 21, 2014)

(adopting the magistrate judge’s recommendation in Lomax v. Lander, No.

13-cv-00707-WJM-KMT, 2014 U.S. Dist. LEXIS 55058 at *9–22 (D. Colo. Mar. 18,

2014)), which the district court dismissed for lack of subject matter jurisdiction and

failure to state a claim.1 The district court that screened Mr. Lomax’s present

complaint concluded that all three dismissals qualified as strikes for purposes of

§ 1915(g).

      Because of the previous strikes, the district court ordered Mr. Lomax to show

cause before proceeding in forma pauperis. In response to the show cause order,

Mr. Lomax advanced two arguments. First, Mr. Lomax argued that because the

district court dismissed his previous complaints without prejudice, the dismissals do

not count as strikes. Second, Mr. Lomax argued that if his previous dismissals

counted as strikes, he is under imminent physical danger and, therefore, satisfies the

only exception to the three strikes rule. In his response to the show cause order,

Mr. Lomax alleged his presence at the Limon Correctional Facility places him in

imminent physical danger due to how the guards there have treated him in the past.

Specifically, Mr. Lomax alleges that a Lt. Wilson physically assaulted him the last

time he was housed at Limon Correctional Facility. And, in an early filing before the

district court, Mr. Lomax reported that a Limon Correctional Facility guard



      1
        The district court dismissed two of Mr. Lomax’s claims for lack of subject
matter jurisdiction and the others for failure to state a claim. See Lander, 2014 U.S.
Dist. LEXIS 55058 at *9–22.
                                           3
commented that he thought Mr. Lomax was dead by now and that, in general, the

guards do not like sex offenders, have shown bias against sex offenders, and say all

sex offenders should be dead.

      The trial court rejected Mr. Lomax’s arguments to proceed in forma pauperis

and required him to pay the $400 filing fee if he wished to pursue his claims.

Mr. Lomax appeals from the district court’s denial of leave to proceed in forma

pauperis. We exercise jurisdiction under 28 U.S.C. § 1291. See Roberts v. U. S. Dist.

Court for the N. Dist. of Cal., 339 U.S. 844, 845 (1950) (per curiam) (relying on

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and § 1291 to conclude

“[t]he denial by a District Judge of a motion to proceed in forma pauperis is an

appealable order”); see also Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310 (10th

Cir. 2005) (applying Roberts when taking jurisdiction over appeal from denial of

motion to proceed in forma pauperis).

                                 II.    DISCUSSION

      Mr. Lomax proceeds without representation; thus we will “liberally construe

his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312,

1315 (10th Cir. 2013). Accepting as true the facts laid out in the complaint, we

review the district court’s determination that Mr. Lomax had three strikes de novo.

Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011).

                   A. Motions Denied Without Prejudice Count as Strikes

      The statute governing when a prisoner is precluded from proceeding in forma

pauperis states:

                                          4
       In no event shall a prisoner bring a civil action or appeal a judgment in
       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, unless the prisoner is under
       imminent danger of serious physical injury.

28 U.S.C. § 1915(g). Mr. Lomax alleges “a dismissal without prejudice for failure to

state a claim does not count as a strike.” ROA at 37 (citing Mendez v. Elliot, 45 F.3d

75, 78 (4th Cir. 1995)). Under Mr. Lomax’s argument, the dismissals without

prejudice of two of his prior actions as barred by Heck would not count as strikes.

       A “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.” Childs v. Miller, 713 F.3d

1262, 1266 (10th Cir. 2013). Further, “[i]n this circuit, it is immaterial to the strikes

analysis [whether] the dismissal was without prejudice,” as opposed to with

prejudice. Id. Finally, “[o]ur precedent holds that the dismissal of a civil rights suit

for damages based on prematurity under Heck is for failure to state a claim.” Smith,

636 F.3d at 1312.

       The previous claims Mr. Lomax filed while incarcerated were dismissed as

barred by Heck or for failure to state a claim. And, contrary to Mr. Lomax’s

argument, the fact that two of the dismissals were without prejudice is immaterial.

Thus, the district court correctly concluded the two Hoffman dismissals and the

Lander dismissal all count as strikes.2


       2
        The Lander dismissal does not state whether it was dismissed with or without
prejudice. Unless otherwise stated, dismissals under Rule 12(b)(6) are with prejudice.
                                            5
                 B.     Imminent Danger of Serious Physical Injury

       The exception to the prohibition on a prisoner with three strikes proceeding in

forma pauperis is for prisoners “under imminent danger of serious physical injury.”

28 U.S.C. § 1915(g). Before the district court, Mr. Lomax, in an effort to satisfy the

imminent danger exception, alleged a Limon Correctional Facility guard attacked

him in the past, other guards at the facility do not like sex offenders, and he fears for

his life.

       In evaluating Mr. Lomax’s imminent danger allegations, we adopt the Second

Circuit’s position that an inmate seeking the imminent danger exception must show

“a nexus between the imminent danger a three-strikes prisoner alleges to obtain [in

forma pauperis] status and the legal claims asserted in his complaint.” Pettus v.

Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). To determine whether a nexus exists,

a court should consider “(1) whether the imminent danger of serious physical

injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct

asserted in the complaint and (2) whether a favorable judicial outcome would redress

that injury.” Id. at 298–99.



See Slocum v. Corp. Express U.S. Inc., 446 F. App’x. 957, 960 (10th Cir. 2011)
(“Rule 12(b)(6) dismissals, unless otherwise indicated, constitute a dismissal with
prejudice.”); see also Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012) (“Although
there is a presumption that a dismissal under Rule 12(b)(6) is a judgment on the
merits made with prejudice, such a dismissal can be rendered without prejudice if the
court so specifies.” (citation omitted)); Stern v. Gen. Elec. Co., 924 F.2d 472, 477 n.7
(2d Cir. 1991); Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir.
1985).

                                            6
       Applying this framework, we conclude a nexus is lacking. Mr. Lomax’s

complaint raises claims relative to his removal from a sex offender treatment

program while he was housed at the Centennial Correctional Facility. And the

complaint alleges that five employees at the Centennial Correctional Facility, as well

as a member of the Central Classification Committee at Offender Services, were

responsible for his removal from the sex offender treatment program. But,

Mr. Lomax’s allegations regarding imminent danger involved his fears of

mistreatment by guards at the Limon Correctional Facility. This fear is not fairly

traceable to the Fifth, Eighth, Ninth, and Fourteenth Amendment violations

Mr. Lomax sought to advance through his complaint. And a favorable judicial

outcome will not redress any mistreatment at the hands of guards at the Limon

Correctional Facility as, according to Mr. Lomax, “the only benefit that a victory in

this case will provide . . . is a ticket to get in the door of the parole board.” ROA at

10 (alterations in original) (quoting Leamer v. Fauver, 288 F.3d 532, 543 (3d Cir.

2002)). Thus, Mr. Lomax has not advanced sufficient allegations to qualify for the

imminent danger exception to § 1915(g)’s prohibition on a three-strikes litigant

proceeding in forma pauperis.

       Even in the absence of the nexus requirement, Mr. Lomax has not alleged

sufficient imminent physical danger as that term is understood. To qualify for the

exception, a plaintiff must advance allegations that “identify at least the general

nature of the serious physical injury he asserts is imminent” and that “[v]ague and

utterly conclusory assertions are insufficient.” Hafed v. Fed. Bureau of Prisons, 635

                                            7
F.3d 1172, 1180 (10th Cir. 2011) (internal quotation marks omitted); see Martin v.

Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (holding general assertions are

insufficient “absent specific fact allegations of ongoing serious physical injury, or of

a pattern of misconduct evidencing the likelihood of imminent physical injury”);

Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 n.1 (3d Cir. 2001) (finding multiple

generalized allegations of harassment by prison guards insufficient to establish “a

pattern of threats of serious physical injury that [is] ongoing.”). Finally, the

allegation of imminent danger must be present “at the time [the prisoner] filed his

complaint.” Hafed, 635 F.3d at 1179.

       Mr. Lomax’s assertions of imminent physical danger are insufficient under this

standard. Simply stating a guard attacked him in the past and still works at the prison

does not indicate any type of pattern of serious and ongoing physical harm or

otherwise evidence the likelihood of imminent danger. Accordingly, even if the nexus

requirement did not apply, Mr. Lomax has not sufficiently alleged imminent physical

danger and does not qualify for the exception as stated in 28 U.S.C. § 1915(g).

                             III.   CONCLUSION

       Mr. Lomax’s challenge on appeal fails due to his previous dismissals counting

as strikes and his insufficient pleading of imminent physical danger. We AFFIRM

the district court’s judgment. We also DENY Mr. Lomax’s motion to proceed




                                            8
without prepayment of costs and fees, and Mr. Lomax is directed to pay the appellate

filing fee in full. See Childs, 713 F.3d at 1267; Smith, 636 F.3d at 1315.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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