                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 25, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



ANTONE LAMANDIGO KNOX,
a/k/a ANTION L. KNOX,
                                                        No. 11-6245
               Petitioner-Appellant,
        v.                                             (W.D. of Okla.)
DR. JOANN MORGAN, Clinical                       (D.C. No. CV-10-01274-W)
Coordinator, RANDALL G.
WORKMAN, Warden, BOBBY
BOONE, Deputy Director, SUE A.
FLEMING, Executive Officer, TERRI
WHITE, Commissioner, OSCAR B.
JACKSON, Secretary-Administrator,
KEVIN WARD, Secretary of Safety
and Security, DREW EDMONDSON,
Attorney General, ERIC HOLDER,
United States Attorney General,
HILLARY RODHAM CLINTON,
United States Secretary of State,
DEAN McDANIEL, Regional
Administrator, JUSTIN JONES,
Director of the Department of
Corrections, JAMES THOMAS, Case
Manager, DEBRA ALDRIDGE, Unit
Manager, LINDA MORGAN, Deputy
Warden, BRAD HENRY, Governor,
and GREGORY PYLE, Choctaw
Chief,

               Respondents-Appellees.


             ORDER DENYING CERTIFICATE OF APPEALABILITY *


    *
         This order is not binding precedent except under the doctrines of law of
                                                                      (continued...)
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Antone Knox seeks a certificate of appealability (COA) to enable him to

appeal the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. Because the district court correctly dismissed Knox’s petition

without prejudice, we DENY the application for a COA and DISMISS the appeal.

      Knox is an Oklahoma state prisoner. He initiated this action by filing a pro

se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the

district court. The matter was assigned to a magistrate judge, who interpreted

Knox’s lengthy and confusing petition as raising two claims: first, that his due

process rights were violated by placement in administrative segregation without a

hearing and in a mental health unit without a court order or medical evaluation,

and second, that his Eighth Amendment rights were violated when he was

assaulted, raped, and denied medical treatment. The magistrate judge informed

Knox that his claims should properly be filed under 42 U.S.C. § 1983 as a civil



      *
       (...continued)
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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

                                         -2-
rights action and provided Knox with the proper form and instructions to make

such a filing.

      But despite repeated orders by the magistrate judge to refile his petition as

a § 1983 action, repeated extensions of his filing deadline, and warnings that

failure to comply with court orders would result in dismissal, Knox did not file a

§ 1983 action and instead filed several new pleadings on his original habeas

petition. The magistrate judge ultimately dismissed Knox’s petition without

prejudice for failure to comply with the court’s orders. Upon de novo review, the

district court adopted the magistrate judge’s recommendation and dismissed

Knox’s petition. Knox then filed this appeal, along with a motion to proceed in

forma pauperis.

      Because Knox is a state prisoner, before he may appeal the district court’s

dismissal of his petition, he must obtain a COA. 28 U.S.C. § 2253(c)(1)(A);

Montez v. McKinna, 208 F.3d 862, 867–69 (10th Cir. 2000). The district court

dismissed Knox’s petition on procedural grounds without reaching his underlying

constitutional claims, so to obtain a COA, Knox must demonstrate that “jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Knox has made no such showing as to the

second prong of this analysis.

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      Knox argues on appeal that dismissal of his petition was improper, claiming

that it was properly brought under § 2254 because he sought release from the

mental health unit, into which he was placed without a hearing or other process.

We disagree. Given that Knox did not challenge the fact or duration of his

confinement, merely the conditions, this conclusion is amply supported by

applicable law. Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011)

(finding it “well settled” that condition-of-confinement claims must be brought

under § 1983 rather than in a habeas petition).

      Knox also claims on appeal that he attempted to file a § 1983 complaint,

but that prison officials destroyed his mail. Although this would be troubling if

true, this seems unlikely given that Knox was able to file his habeas petition,

appeal, and numerous related pleadings without apparent difficulty. It is unclear,

moreover, if he made this claim in the district court. Finally, the magistrate judge

had clear authority to dismiss Knox’s petition without prejudice given his

repeated failure to comply with court orders. United States ex rel. Jimenez v.

Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005).

      Because Knox has not shown that reasonable jurists would debate whether

the district court properly dismissed his action, we affirm its dismissal. As the

dismissal was without prejudice, Knox is free to refile his action in accordance

with federal and local rules.




                                         -4-
      Knox is unable to proceed in forma pauperis if the trial court certifies in

writing that his appeal was not taken in good faith, as it did here. 28 U.S.C.

§ 1915(a)(3). Although we might grant Knox leave to proceed in forma pauperis

on appeal pursuant to Federal Rule of Appellate Procedure 24(a)(5), see Rolland

v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078–79 (10th Cir. 2007), we

agree with the district court’s assessment that Knox’s appeal lacks a good-faith

basis because he is unable to present a reasoned, nonfrivolous argument in

support of his claim on appeal. Id. Accordingly, we also deny Knox’s motion for

leave to proceed in forma pauperis.

      We DENY the application for a COA and DISMISS this appeal. We also

DENY Knox’s motion to proceed in forma pauperis on appeal and order him to

pay the full amount of the filing fee. We remind him of his obligation to pay the

filing fee even on an appeal that has been dismissed. See Kinnell v. Graves, 265

F.3d 1125, 1129 (10th Cir. 2001).

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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