White v. Lumpkin

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

                             FOR THE TENTH CIRCUIT                        November 18, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 RICKEY WHITE,

       Plaintiff - Appellant,
                                                             No. 20-7040
 v.                                             (D.C. No. 6:20-CV-00118-RAW-SPS)
                                                             (E.D. Okla.)
 JUDGE GARY L. LUMPKIN; JUDGE
 BILL BLAZE; HUGO CHOCTAW
 COUNTY OFFICIALS,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges. **
                  _________________________________

      Petitioner-Appellant Rickey White, a state inmate appearing pro se, appeals

from the district court’s dismissal of his civil rights action seeking damages. 42

U.S.C. § 1983; White v. Lumpkin, No. CIV 20-118-RAW-SPS, 

2020 WL 3511577

(E.D. Okla. June 29, 2020). Mr. White’s complaint alleges that he was unlawfully

convicted of first-degree murder and placed in custody due to an invalid state



      *
         This order and judgment is not binding precedent, except under the doctrines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.
       **
          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.
warrant. Upon initial screening, the district court dismissed the action as frivolous

because Mr. White could not demonstrate that his conviction or sentence was invalid.

See Heck v. Humphrey, 

512 U.S. 477

, 486–87 (1994). We agree.

      Prior to the district court’s dismissal, Mr. White had accrued two strikes for

filing frivolous claims pursuant to Prison Litigation Reform Act (PLRA). See 28

U.S.C. § 1915(g); White v. Choctaw Cty. Ct. Clerk, No. CIV-10-421-RAW (E.D.

Okla. Nov. 18, 2010); White v. Strubhar, No. CIV-02-378-S (E.D. Okla. July 24,

2003). Mr. White accrued a third strike from the district court’s decision dismissing

this action as frivolous, see White v. Lumpkin, No. CIV 20-118-RAW-SPS, 

2020 WL 3511577

(E.D. Okla. June 29, 2020); 28 U.S.C. § 1915(g), however “a third dismissal

does not trigger the [PLRA] restriction when the third dismissal is the ruling being

appealed.” Dawson v. Coffman, 651 F. App’x 840, 842 n.2 (10th Cir. 2016)

(unpublished). Because we will dismiss this appeal as frivolous, he will have four

strikes. See Jennings v. Natrona Cnty. Det. Ctr., 

175 F.3d 775

, 780–81 (10th Cir.

1999), overruled on other grounds by Coleman v. Tollefson, 

575 U.S. 532

(2015).

      We DISMISS the appeal as frivolous and assess a strike, DENY IFP, and

remind Mr. White that he is responsible for paying the full amount of the filing fee.


                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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