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

                             FOR THE TENTH CIRCUIT                         June 23, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 ERIC ADAMS,

       Plaintiff - Appellant,

 v.                                                        No. 19-1301
                                                  (D.C. No. 1:19-CV-01643-LTB)
 UNITED STATES,                                              (D. Colo.)

       Defendant - Appellee.

 –––––––––––––––––––––––––––––––––––

 In re: ERIC ADAMS,                                      No. 19-1311
                                                (D.C. No. 1:19-CV-01643-LTB)
       Petitioner.                                         (D. Colo.)
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.
                  _________________________________

      Eric Adams, a federal prisoner, filed a pro se complaint against the United

States, purporting to raise a claim under the Federal Tort Claims Act (FTCA),

28 U.S.C. §§ 1346(b), 2671-2680. The district court denied Adams’s request to


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
proceed in forma pauperis (IFP) on the ground that Adams had incurred at least three

strikes under 28 U.S.C. § 1915(g). When Adams failed to timely pay the filing fee,

the court dismissed the action without prejudice under Fed. R. Civ. P. 41(b).

      Adams, proceeding pro se, appeals the dismissal, contending that he has only

two strikes and that the district court, therefore, erred in denying his request for IFP

status. He also petitions for a writ of mandamus, contending the district court erred

in barring him from filing a Fed. R. Civ. P. 54 or 59(e) motion and denying his

request to proceed IFP on appeal. And in both his appeal and his mandamus petition,

Adams seeks leave to proceed IFP. Exercising jurisdiction under 28 U.S.C. § 1291,

we reverse the district court’s dismissal, grant Adams’s motions to proceed IFP with

his appeal and mandamus, deny his mandamus petition as moot, and remand for

further proceedings consistent with this opinion.

                                   BACKGROUND

      On June 6, 2019, Adams filed a pro se complaint under the FTCA, alleging

that employees with the Bureau of Prisons (BOP) were tampering with his meals and

“causing physical ailments.” R. Vol. 1 at 8. The district court denied Adams’s

request to proceed IFP, finding it “undisputed that Mr. Adams has filed more than

three actions in a court of the United States while he was incarcerated or detained in

any facility that were dismissed for failure to state a claim.” Id. at 30. In particular,

the court cited the following dismissals: (1) Adams v. Wiley, No. 09-cv-00612-MSK-

KMT, 2010 WL 551394 (D. Colo. Feb. 10, 2010), aff’d, 398 F. App’x 372 (10th Cir.

2010); (2) Adams v. Trant, No. 090779, 2009 WL 1159219 (D.D.C. Apr. 29, 2009),

                                            2
aff’d, 331 F. App’x 758 (D.C. Cir. 2009) (per curiam); and (3) Adams v. Negron,

No. 02-N-631-MJW, 2003 U.S. Dist. LEXIS 28584 (D. Colo. Mar. 11, 2003), aff’d,

94 F. App’x 676 (10th Cir. 2004). The court, therefore, concluded Adams was

subject to the three-strikes bar under § 1915(g). The court further concluded

Adams’s “allegations fail to demonstrate he is in imminent danger of serious physical

injury that would entitle him to the exception to the § 1915(g) bar.” R. Vol. 1 at 33.

The court informed Adams that his complaint would be dismissed if he did not pay

the full $400.00 filing fee within thirty days.

      Thereafter, Adams failed to timely pay the filing fee, and the district court

dismissed the action without prejudice under Fed. R. Civ. P. 41(b). Adams filed a

motion for reconsideration that the court considered under Fed. R. Civ. P. 59(e),

contending the court erred in determining he did not qualify for the imminent-danger

exception to § 1915(g). Adams did not challenge the district court’s determination

that he had three strikes. The court denied Adams’s motion, stating he had “not

provide[d] any new arguments for why he should be granted leave to proceed [IFP].”

Id. at 57. Adams timely appealed.

                                     DISCUSSION

      Adams argues the district court erred in finding he had three strikes and was

subject to the bar under § 1915(g). We agree, but not for the reasons he contends.

   A. Standard of Review

      “We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v.

Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). “An abuse of

                                            3
discretion occurs where a decision is premised on an erroneous conclusion of law or

where there is no rational basis in the evidence for the ruling.” Planned Parenthood

of Kan. v. Andersen, 882 F.3d 1205, 1223 (10th Cir.) (internal quotation marks

omitted), cert. denied, 139 S. Ct. 638 (2018). With respect to the district court’s

determination that Adams had three strikes under § 1915(g), our review is de novo.

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

because Adams is “proceeding pro se, we liberally construe [his] pleadings.”

Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010).

   B. IFP Status Under § 1915

      Under 28 U.S.C. § 1915(b)(1), prisoners bringing civil actions may be granted

leave to proceed IFP and avoid prepaying the filing fee, but they remain responsible

for paying the filing fee in full. See 28 U.S.C. § 1915(b)(1). This privilege to

proceed IFP also is limited by the three-strikes provision in § 1915(g). Under

§ 1915(g), “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) (alterations omitted) (quoting 28 U.S.C. § 1915(g)), abrogated in

part on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015). And when

prisoners accumulate three strikes, they must “prepay the entire filing fee before

federal courts may consider their civil actions and appeals.” Jennings v. Natrona

Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 778 (10th Cir. 1999) (internal quotation

                                            4
marks omitted), abrogated in part on other grounds by Coleman, 575 U.S. 532. The

“only exception” to the prepayment requirement is when a prisoner with three strikes

raises “a credible allegation that he is in imminent danger of serious physical

harm.” White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998).

   C. Adams’s IFP Status

       Adams seeks leave to proceed IFP both on his appeal and his mandamus

petition. We issued show-cause orders, questioning whether he was barred from

proceeding IFP under § 1915(g), citing the same cases cited by the district court.

Adams responded that the dismissals in Trant, 2009 WL 1159219, and Negron,

2003 U.S. Dist. LEXIS 28584, constituted strikes but that the dismissal in Wiley,

2010 WL 551394, should not have counted. He reiterated this argument in his brief

and also contended the district court erred in rejecting his request for the

imminent-danger exception to § 1915(g).

       First, we agree with his concession that Trant constitutes a strike. The district

court dismissed the action under 28 U.S.C. § 1915A(b) “for failure to state a claim

upon which relief can be granted.,” Trant, 2009 WL 1159219, at *1, and that ruling

was affirmed on appeal, Trant, 331 F. App’x 758. That dismissal constitutes a strike

under § 1915(g). See Hafed, 635 F.3d at 1175 (holding “that a dismissal under

28 U.S.C. § 1915A counts as a strike when the action was dismissed . . . for failure to

state a claim”).

       Next, we reject Adams’s objection to Wiley being counted as a strike. The

district court dismissed the complaint in that case “as untimely,” Wiley, 2010 WL

                                            5
551384, at *4, which Adams contends is not one of the grounds specified in

§ 1915(g).1 However, in dismissing the complaint as untimely, the court clarified it

was granting the defendants’ motions to dismiss, which squarely raised the timeliness

issue under Fed. R. Civ. P. 12(b)(6). See generally Sierra Club v. Okla. Gas & Elec.

Co., 816 F.3d 666, 671 (10th Cir. 2016) (“A statute of limitations defense may be

appropriately resolved on a Rule 12(b) motion when the dates given in the complaint

make clear that the right sued upon has been extinguished.” (internal quotation marks

and alteration omitted)). Accordingly, while not explicitly stated in the district

court’s decision or our decision on appeal, the record is clear that the district court

dismissed the complaint for “fail[ure] to state a claim upon which relief may be

granted,” 28 U.S.C. § 1915(g); see also Childs v. Miller, 713 F.3d 1262, 1266

(10th Cir. 2013) (holding a “dismissal for failure to state a claim under Rule

12(b)(6)” is a strike under § 1915(g)).

      The final strike identified by the district court was Negron, 2003 U.S. Dist.

LEXIS 28584. The district court originally identified this as a strike in 2011,

describing the case as “dismissed for failure to state a constitutional violation.”

Adams v. Davis, No. 11-cv-01521-BNB, 2011 U.S. Dist. LEXIS 157566, at *3 (D. Colo.

Aug. 18, 2011). Adams did not appeal that decision and or otherwise dispute its

characterization of Negron as a strike. Since Davis, the district court, along with this



      1
         Adams asserted in the mandamus proceeding that Wiley was dismissed “for
failure to pay filing fee,” but that is incorrect.

                                            6
court, has consistently listed Negron, Wiley, and Trant as Adams’s strikes.2 Despite

these repeated characterizations, however, closer inspection reveals Negron was not a

strike under § 1915(g).

       In Negron, Adams sued several BOP officials for alleged constitutional

violations based upon his transfer to a restrictive housing assignment. The

defendants filed a “Motion to Dismiss or, Alternatively, Motion for Summary

Judgment,” which the magistrate judge recommended granting. Adams v. Negron,

No. 02 N 631 (MJW), 2002 U.S. Dist. LEXIS 28944, at *1 (D. Colo. Dec. 6, 2002),

adopted, 2003 U.S. Dist. LEXIS 28584 (D. Colo. Mar. 11, 2003). In his

recommendation, the magistrate judge specifically stated “the defendant’s motion to

dismiss should be granted as to [Adams’s] due process claim,” id. at *13, and the

magistrate judge concluded Adams’s “claims should be dismissed” because he “ha[d]

not stated a constitutional violation as a result of the defendants’ alleged actions.”

Id. at *19; see also id. at *11 (finding a “[f]ailure to state a constitutional claim”).

However, in rejecting Adams’s Eighth Amendment and retaliation claims, the

magistrate judge considered documents that were not part of Adams’s complaint and,

instead, were submitted by the defendants. See id. at *15 (addressing “medical

records filed with the defendants’ motion”); id. at *17-18 (discussing Adams’s

disciplinary history as provided in an exhibit filed by the defendants). The



       2
       In addition to the present proceedings, we identified Negron as a strike in
show-cause orders in the following appeals: 11-1431, 13-1271, 13-1471, 14-1339,
17-1137, 17-1322, and 18-1351.
                                             7
magistrate judge, therefore, effectively reviewed these claims under the summary

judgment standard. See Lamb v. Rizzo, 391 F.3d 1133, 1136 (10th Cir. 2004) (noting

the district court, which purported to dismiss a claim, “clearly relied upon and

incorporated into its order granting the motion material derived from documents

outside the four corners of [the] complaint,” thus “convert[ing] the motion to dismiss

into a motion for summary judgment” (internal quotation marks omitted)).

      The district court accepted the magistrate judge’s recommendation and granted

the “[d]efendants’ motion to dismiss or for summary judgment,” without specifying

which alternative motion was being granted. Negron, 2003 U.S. Dist. LEXIS 28584,

at *3. Although the conclusion of the order states the case was “dismissed with

prejudice,” id., the body of the order indicates the court granted dismissal in part and

summary judgment in part. In particular, with respect to Adams’s retaliation claim,

the court concluded “defendants [were] entitled to summary judgment” because “no

reasonable jury or fact-finder could find in [Adams’s] favor on this record.” Id.

(emphasis added). Moreover, the court found “no evidence in the record” to support

Adams’s Eighth Amendment claim, id. at *2, suggesting a summary judgment ruling.

Therefore, notwithstanding the statement that the case was “dismissed,” id. at *3, the

decision constituted a partial dismissal and a partial summary judgment.

      In Thomas v. Parker, 672 F.3d 1182 (10th Cir. 2012), we addressed a “mixed

disposition” in which the district court “(1) dismissed two counts in plaintiff’s

complaint for failure to state a claim; and (2) granted summary judgment and

dismissed the remaining sixteen counts in plaintiff’s complaint for failure to exhaust

                                           8
administrative remedies.” Id. at 1183. Because § 1915(g) “refers to dismissals of

‘actions,’ as opposed to ‘claims,’” we stated “a partial dismissal based on one of the

grounds enumerated in § 1915(g) is generally not a proper basis for assessing a

strike.” Id. (citing decisions from other circuits “holding that [the] plain language of

§ 1915(g) provides that a plaintiff will incur a strike only when an entire action is

dismissed based on one of the listed grounds”). Nevertheless, we concluded a mixed

disposition can constitute a strike when “the plaintiff’s claims are dismissed in part

for failure to state a claim and in part for failure to exhaust administrative remedies,

and no claims are allowed to proceed on the merits.” Id. at 1184. We reasoned that

unexhausted claims “were in effect a nullity” and that “the congressional purpose of

§ 1915(g) would be subverted if . . . a prisoner could repeatedly escape imposition of

a strike” “by adding unexhausted claims to a complaint that otherwise does not state

a claim upon which relief may be granted.” Id. (internal quotation marks omitted).

      The mixed disposition in Negron does not fit the exception recognized in

Thomas. The district court rejected Adams’s Eighth Amendment and retaliation

claims as being unsupported, not unexhausted. Because the entire action was not

dismissed “based on one of the grounds enumerated in § 1915(g),” Negron cannot

constitute a strike. Id. at 1183. Because Trant and Wiley appear to be Adams’s only

strikes, the district court erred in denying Adams’s request to proceed IFP under

§ 1915(g). And because the dismissal of Adams’s action was based solely on his




                                            9
failure to timely pay the filing fee, we reverse the dismissal and remand this matter to

the district court to determine whether Adams is otherwise entitled to proceed IFP.3

                                    CONCLUSION

      Adams has an extensive litigation history. But for purposes of the present

action, it appears he has only two strikes, not three,4 and he may proceed IFP as long

as he is otherwise entitled to that status. We, therefore, reverse the district court’s

judgment and remand the case for further proceedings consistent with this opinion.

Additionally, we grant Adams’s request to proceed IFP on appeal and in connection

with his petition for a writ of mandamus. We remind him, though, that the IFP status

only eliminates the need for prepayment of the filing fees and that he remains

obligated to continue making payments until the fees are paid in full. See 28 U.S.C.

§ 1915(b)(1). Finally, because this disposition effectively moots the relief sought in

Adams’s petition for a writ of mandamus, we deny the petition as moot.


                                             Entered for the Court


                                             Joel M Carson III
                                             Circuit Judge




      3
         Because of this disposition, we need not address Adams’s contention in his
brief that he satisfied the imminent-danger exception to § 1915(g) or his contentions
in his mandamus petition that the district court erred in precluding him from filing
other post-judgment motions and in denying his request to proceed IFP on appeal.
      4
         We express no opinion as to whether he has incurred additional strikes since
filing his complaint in the present action.
                                            10
