                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 25, 2013
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 NORBERTO PEREZ AROCHO,

               Plaintiff - Appellant,                   No. 13-1030
          v.                                           (D. Colorado)
 UNITED STATES OF AMERICA; and                (D.C. No. 1:12-CV-01579-LTB)
 HARLEY G. LAPPIN, former Federal
 Bureau of Prison Director,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Circuit Judge, and ANDERSON and TYMKOVICH,
Circuit Judges.



      After examining the briefs and 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
      Plaintiff and appellant Norberto Perez Arocho, a federal prisoner

proceeding pro se, appeals the district court’s dismissal of his action under

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), on the ground that it

was frivolous or malicious. For the following reasons, we affirm.

      Mr. Arocho’s general allegation is, as it has been throughout successive

proceedings before the district court and our court, that the failure to provide him

with medical treatment for his hepatitis, or the inadequate provision of such

treatment, violates his Eighth Amendment rights. He has named defendant

Harley G. Lappin, the former national director of the BOP, and the United States

as defendants in the instant action.

      With respect to the United States as defendant, we note that Mr. Arocho has

not named the United States as a previous defendant. As the district court

explained, however, Mr. Arocho does not assert any specific claim for relief

against the United States, nor does he articulate any legal theory supporting such

a claim. Even construing his pleadings liberally, as we must, 1 his unsupported

appeal of his claim against the United States is surely frivolous. We now turn to

his remaining claim, against Mr. Lappin.



      1
        Because Mr. Arocho is proceeding pro se, we must construe his pleadings
liberally. We will not, however, act as his advocate. See United States v. Pinson,
584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s]
arguments liberally; this rule of liberal construction stops, however, at the point
at which we begin to serve as his advocate.”).

                                         -2-
      As the district court further noted in its Order of Dismissal, Mr. Arocho

previously filed an action in the District of Colorado asserting the same Eighth

Amendment claim against Mr. Lappin, alleging that Mr. Lappin was personally

involved in Mr. Arocho’s failed or inadequate treatment. See Arocho v. Lappin,

No. 07-cv-02603-REB-KLM, 2011 WL 2358067 (D. Colo. June 10, 2011), aff’d,

461 Fed. Appx. 714 (10th Cir. 2012). 2 The district court in that case granted

summary judgment to defendant Lappin and dismissed with prejudice Mr.

Arocho’s Eighth Amendment claim against Mr. Lappin for lack of personal

jurisdiction. On appeal, our court affirmed the dismissal of Mr. Arocho’s claim

against Mr. Lappin for lack of personal jurisdiction, but remanded solely for the

district court to modify the judgment to be without prejudice. Arocho v. Lappin,

2012 WL 5689253 (10th Cir. Feb. 9, 2012).

      In our decision in that case, we explained carefully and fully why Mr.

Arocho failed to demonstrate personal jurisdiction over Mr. Lappin. Moreover,

we explicitly stated that a dismissal for lack of personal jurisdiction is without

prejudice, so that Mr. Arocho could, assuming no other impediments to such a

filing, pursue an action against Mr. Lappin in a venue where there is personal

jurisdiction over Mr. Lappin. See id. at 719-20.



      2
        We note that the situation might be different were Mr. Arocho to allege
that a BOP policy enacted or enforced by Mr. Lappin caused his inadequate
treatment. But that is not what Mr. Arocho alleges.

                                         -3-
      Accordingly, on April 6, 2012, an Amended Final Judgment was entered

indicating that Mr. Arocho’s claims against Mr. Lappin were dismissed without

prejudice. Mr. Arocho then commenced the instant action on June 18, 2012,

asserting the same Eighth Amendment claim against the same defendant

(Mr. Lappin).

      In dismissing this action, the district court stated as follows:

             “Repetitious litigation of virtually identical causes of action
      may be dismissed under § 1915 as frivolous or malicious.” To
      determine whether a pleading repeats pending or previously litigated
      claims, the Court may consult its own records. The Court has
      consulted its records and finds that the claim Mr. Arocho is asserting
      against Defendant Lappin in the instant action is repetitive of the
      claim he asserted against Defendant Lappin in 07-cv-02603-REB-
      KLM. Mr. Arocho’s previous claim against Defendant Lappin in 07-
      cv-02603-REB-KLM was dismissed without prejudice to being
      refiled in a jurisdiction where Defendant Lappin is subject to
      personal jurisdiction. However, rather than proceeding in a
      jurisdiction where Defendant Lappin is subject to personal
      jurisdiction, Mr. Arocho simply refiled the same claim in this Court.
      Because Judge Blackburn already has determined that Mr. Arocho
      may not pursue his Eighth Amendment claim against Defendant
      Lappin in the District of Colorado, Mr. Arocho’s repetitive claim
      against Defendant Lappin in this action will be dismissed as legally
      frivolous and malicious.

Order of Dismissal at 3-4 (quoting McWilliams v. Colorado, 121 F.3d 573, 574

(10th Cir. 1997)) (further citations omitted).

      The district court went on to explain why any Eighth Amendment or tort

action against the United States is barred by sovereign immunity or is time-

barred. The court accordingly dismissed Mr. Arocho’s complaint. It also

certified pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this order would

                                          -4-
not be taken in good faith and therefore in forma pauperis (“ifp”) status would be

denied for the purpose of appeal.

       We generally review a district court’s dismissal for frivolousness under 28

U.S.C. § 1915 for abuse of discretion. Fogle v. Pierson, 435 F.3d 1252, 1259

(10th Cir. 2006). We see no abuse of discretion here; rather, we agree with the

district court that Mr. Arocho’s cause of action, as well as his appeal, is frivolous.

In his prior cause of action, the district court granted judgment to defendant

Lappin on the ground that it had no personal jurisdiction over Mr. Lappin and that

transfer to another forum was unwarranted. That situation still obtains with

respect to Mr. Arocho’s repetitious Eighth Amendment cause of action against

defendant Lappin in a Colorado federal district court. We accordingly affirm the

district court’s dismissal of his appeal, for substantially the reasons given by the

district court.

       While the earlier dismissals of Mr. Arocho’s case were without prejudice, 3

and thus led to the instant action, the district court in this case did not specify

whether its dismissal of Mr. Arocho’s action as legally frivolous and malicious

was with or without prejudice. The court also did not specify whether its




       3
        As indicated, Mr. Arocho’s case was initially dismissed by the district
court without prejudice at the pleading stage. Our court reversed and remanded
the matter. Mr. Arocho’s action was then dismissed by the district court with
prejudice at the summary judgment stage. Our court affirmed that dismissal, but
stated that it should be without prejudice.

                                          -5-
dismissal should count as a strike for purposes of the “three strikes” rule of the

Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). 4

      Under that rule, a prisoner generally may not file a federal civil action or

appeal in a civil action without prepaying the filing fee if he has violated the

three strikes rule. “The three strikes rule generally requires a court to deny filing

without the prepayment of filing fees if three or more of a prisoner’s prior federal

civil actions or appeals were dismissed because they were frivolous, malicious, or

failed to state a claim for relief under applicable law.” Smith v. Veterans Admin.,

636 F.3d 1306, 1308 (10th Cir. 2011). We have, however, stated that “a dismissal

without prejudice counts as a strike, so long as the dismissal is made because the

action is frivolous, malicious, or fails to state a claim.” Id. at 1314 (quoting Day

v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (per curiam)). We accordingly




      4
        We note that “a dismissal cannot be counted as a strike against a prisoner
‘until he has exhausted or waived his appeals [in the prior action].’” Smith v.
Veterans Admin., 636 F.3d 1306, 1310 (10th Cir.), cert. denied, 132 S. Ct. 381
(2011) (quoting Jennings v. Natrona Cnty Det. Ctr. Med. Facility, 175 F.3d 775,
780 (10th Cir. 1999)). Nonetheless, a “strike ripens to be counted[”]

      from the date of the Supreme Court’s denial or dismissal of a petition
      for writ of certiorari, if the prisoner filed one, or from the date when
      the time to file a petition for writ of certiorari expired, if he did not.
      And if the prisoner did not file a direct appeal in a circuit court, a
      district court’s dismissal counts as a strike from the date when his
      time to file a direct appeal expired.

Id. at 1310-11 (quoting Hafen v. Fed. Bureau of Prisons, 635 F.3d 1172, 1175
(10th Cir. 2011) (footnote omitted)).

                                         -6-
find that one strike before the district court and one strike before our court will

ripen into two strikes, once Mr. Arocho’s certiorari proceedings, if any, expire.

      In short, we affirm the district court’s dismissal of this action, we deny

Mr. Arocho’s request to proceed on appeal ifp, and we direct him to pay the entire

$455.00 filing fee forthwith. We caution Mr. Arocho that, should he continue to

file repetitious, frivolous pleadings, we may impose filing sanctions, in addition

to imposing strikes under the PLRA.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                          -7-
