                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       May 18, 2007
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court

    ANTH ONY L. DAVIS,

                 Plaintiff-Appellant,

    v.                                                 No. 07-3015
                                                (D.C. No. 06-CV-3337-SAC)
    CAROL J. BACON, Public D efender,                    (D . Kan.)
    in her individual and official capacity;
    RICHARD NEY, Chief Public
    Defender, in his individual and official
    capacity; JESSICA R. KUNEN, Chief
    Appellate Defender, in her individual
    and official capacity; STEVEN R.
    ZIN N, Appellate Defender, in his
    individual and official capacity;
    REID T. NELSON, Appellate
    Defender, in his individual and official
    capacity; SEA N C. M C EN U LTY,
    Public Defender, in his individual and
    official capacity; M ICHAEL C.
    BROW N, Public D efender, in his
    individual and official capacity;
    ROGER FALK, Appellate Public
    Defender, in his individual and official
    capacity; GARY W . OW EN S,
    Appellate Public D efender, in his
    individual and official capacity,

                 Defendants-Appellees.



                              OR D ER AND JUDGM ENT *

*
       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
                                                                       (continued...)
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.




      Plaintiff Anthony L. Davis, appearing pro se and in forma pauperis, filed

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

constitutional violations by trial and appellate public defenders involved in his

1988 state criminal proceedings and appeals. Upon reviewing plaintiff’s

complaint, the district court determined that this suit “substantially mirrored a

previously filed complaint in which plaintiff asserted the same or similar claims

against the same defendants,” and ordered plaintiff to show cause why it should

not be dismissed “as a frivolous and malicious duplicative filing.” R., Doc. 6,

at 1. After reviewing plaintiff’s response, the district court dismissed the new

complaint under 28 U.S.C. § 1915A(b)(1) “as frivolous and malicious.” Id. at 2.

Plaintiff filed a notice of appeal and a motion to proceed in forma pauperis on

appeal. Id., Docs. 8, 9. The district court granted plaintiff’s m otion to proceed in

forma pauperis on appeal. Id., Doc. 11.

      W e have “not yet determined whether a dismissal pursuant to § 1915A on

the ground that the complaint is legally frivolous is reviewed de novo or for abuse


*
 (...continued)
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.

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of discretion.” Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000). As in

Plunk, however, we “need not resolve that question at this juncture” because our

review of the record in both of plaintiff’s cases “reveals no hint of reversible

error under either standard.” Id.

      In his prior district court case, Davis v. Bacon, D.C. No. 06-3132, plaintiff

sued under 42 U.S.C. § 1983, alleging that state trial and appellate public

defenders conspired with state officials to deny him a fair trial and appeal. See

R. No. 06-3132, Doc. 1. The district court ordered plaintiff to show cause why the

complaint should not be dismissed prior to service because his allegations of

conspiracy were conclusory and insufficient to overcome the general rule that

public defenders practicing law are not state actors. Id., Doc. 4, at 2-3. After

reviewing plaintiff’s response to the show cause order, to which plaintiff attached

numerous irrelevant photocopies of articles about his boxing career, id., Docs. 6-7,

the district court concluded that plaintiff’s allegations of conspiracy were still

conclusory and insufficient to show that any of the public defenders acted under

color of state law, id., Doc. 8, at 1-2. The court dismissed the complaint under

28 U.S.C. § 1915A(b)(1) “as stating no claim upon which relief can be granted

under 42 U.S.C. § 1983.” Id., Doc. 8, at 2. The court then entered judgment.

Id., Doc. 9. Plaintiff filed a motion to alter or amend the judgment, an affidavit

and supplement, a motion for leave to amend his complaint, and a motion for leave

to file a motion for summary judgment. Id., Docs. 10-14. The district court

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denied relief in a written order, explaining that plaintiff’s allegations of conspiracy

were conclusory and insufficient to state a claim for relief. Id., Doc. 15. It does

not appear that plaintiff appealed to this court.

      It is clear that the current suit substantially mirrors the prior complaint that

was dismissed. This appeal is therefore frivolous for the same reasons that

underlie the district court’s dismissal, and both this dismissal and the district

court’s dismissal count as strikes under 28 U.S.C. § 1915(g). See Thompson v.

Gibson, 289 F.3d 1218, 1222-23 (10th Cir. 2002). W e take judicial notice that the

dismissal in district court case No. 06-3132 also counts as a strike because

plaintiff did not appeal. See Jennings v. Natrona County Det. Ctr. M ed. Facility,

175 F.3d 775, 780 (10th Cir.1999); see also Green v. Nottingham, 90 F.3d 415,

418 (10th Cir. 1996) (taking judicial notice of strikes imposed by other courts).

Because plaintiff has accrued three strikes, he will no longer be able to proceed in

forma pauperis in any civil action or appeal filed in a federal court unless he “is

under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

      In light of our conclusion that this appeal is frivolous, the district court’s

grant of in forma pauperis status on appeal is VACATED, and in forma pauperis

status is DENIED. See Coppedge v. United States, 369 U.S. 438, 445-46 (1962).




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Plaintiff is ordered to pay the entire appellate filing fee of $455.00 within thirty

days of the date of this order.

      The appeal is DISM ISSED.

                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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