U.S. Court of Appeals for the Tenth Circuit, 2014

DeMillard v. Burton

U.S. Court of Appeals for the Tenth Circuit · Decided July 22, 2014 · Gorsuch, Holmes, Murphy, Per Curiam

572 F. App'x 609

Opinion

ORDER AND JUDGMENT *

PER CURIAM.

Eric DeMillard, a prisoner in Wyoming, filed a pro se complaint against various prison officials under 42 U.S.C. § 1983. In it, Mr. DeMillard sought $8 billion from the defendants who, he alleged, kidnaped and tortured him. The district court noted that Mr. DeMillard had been incarcerated for violating the terms of his parole. Because Mr. DeMillard offered nothing to dispute this, no allegations or arguments to support his claim, the district court dismissed Mr. DeMillard’s complaint without prejudice, deeming it “unquestionably frivolous.”

We see no reversible error here. Mr. DeMillard’s brief identifies no flaw in the district court’s reasoning. Neither do we discern any after our own independent examination. Accordingly, for the reasons given by the district court, we deny Mr. DeMillard’s motion to proceed in forma pauperis and this appeal is dismissed. The three-strikes provision of the PLRA applies to Mr. DeMillard and requires us to assess a strike against him. See 28 U.S.C. § 1915(g). That is in addition to the strikes Mr. DeMillard previously incurred (one when the district court dismissed his complaint in this case for failure to state a claim; the other when a district court dismissed a prior complaint of Mr. DeMillard as legally frivolous.). See DeMillard v. Municipality of Denver, No. 10-cv-002536-BNB, 2011 WL 900827, at *4 (D.Colo. Mar. 11, 2011). Mr. DeMillard is reminded he must pay his filing fee in full.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 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 This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

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