UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GARY FLUTE, SR., Plaintiff - Appellant,

v. UNITED STATES OF AMERICA; MRS. LOZANO, (first name unknown to plaintiff), official & individual capacities; MS. M. HOFFER, (first name unknown to plaintiff), official & individual capacities; MR. G. STAUT, (first name unknown to plaintiff), official & individual capacities; FCI-ENGLEWOOD; NORTH CENTRAL REGIONAL OFFICE OF ADMINISTRATIVE REMEDY COORDINATORS, (individuals unknown to plaintiff), official & individual capacities; MS. DEBORAH DENHAM, official & individual capacities; MS. SARA M. REVELL, official & individual capacities; MRS. LEYBA, (first name unknown to plaintiff), official & individual capacities Defendants - Appellees. No. 17-1397 (D.C. No. 1:17- CV-01688-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* After examining the appellant’s brief a nd the appellate record, this panel has determined unanimously that oral argumen t wouldn’t 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 isn’t binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 25, 2018
Elisabeth A. Shumaker Clerk of Court2 Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Proceeding pro se, 1 federal prisoner Gary Flute Sr. brought this civil action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). Flute initiall y alleged five claims agains t eight defendants. He then filed an amended complaint—this time as serting 14 claims agai nst the same eight defendants—after a magistrate judge identified various defi ciencies in his original complaint. The district c ourt screened Flute’s amende d complaint under 28 U.S.C. § 1915A(a) and dismissed it as fri volous under § 1915A(b)(1). 2 Flute appeals. We review a dismissal for frivolousne ss under 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). But it doesn’t appear that we have reso lved whether we review a dismissal for frivolousness under § 1915A(b)(1) under the sa me standard, or whether we instead exercise de novo review. See Plunk v. Givens , 234 F.3d 1128, 1130 (10th Cir. 2000); Robbins v. Cty. of Boulder , 592 F. App’x 710, 712 (10t h Cir. 2014) (unpublished).

1 We liberally construe Flute’s pro se fili ngs. But it’s not our role to act as his advocate. James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). 2 The district court dismissed Flut e’s amended complaint—which alleges claims arising from an Au gust 2015 prison-job reassignm ent—on October 13, 2017. On the same day, the district court also dismissed Flute’s amended complaint in a separate action, which alle ged claims arising from a Ma rch 2015 incident report and subsequent discipli nary proceedings. See Flute v. United States , 1:17-CV-01717- LTB, slip. op. at 2, 6 (D. Colo. Oct. 13, 2017) . The district court resolved these cases in separate orders, see id. ; Flute v. United States , No. 1:17-cv-01688-LTB (D. Colo. Oct. 13, 2017), and Flute has appealed from both. Although Flute raises many of the same arguments in both appeals, we follow the district court’s lead and resolve the cases in separate orders issued on the same day. See Flute v. United States , No. 17- 1401 (10th Cir. Jan. 25, 2018).3 We need not resolve that question here; for the reasons discussed below, Flute’s arguments fail under either standard. We turn first to two preliminary matters: Flute argues that the magistrate judge erred in (1) partially denying his motion for an extension of time to file his amended complaint and (2) refusing to appoint an attorney to represent him. According to Flute, the magistrate judge erred by gr anting him a 30-day extension of time to file his amended co mplaint, as opposed to the 60-day extension that he requested. But even assuming this was error, Flute isn’ t entitled to relief unless he can show that the magist rate judge’s ruling prejudiced him. See 28 U.S.C. § 2111 (requiring us to disregar d errors that “do not affect the substantial rights of the parties”); Shinseki v. Sanders , 556 U.S. 396, 410 (2009) (explaining that “party seeking reversal normally must explain why the erroneous ruling caused harm”). Here, Flute alleges that “as a result” of the partial deni al of his request for an extension of time, he “did not have e nough time in which to prepare the instant complaint.” Aplt. Br. 4. Bu t Flute doesn’t provide any specific information about what additions or revisions he might have made to his complain t if the magistrate judge had given him more ti me to do so. Nor does he explain how those changes would have warded off the district c ourt’s ultimate § 1915A(b)(1) dismissal. Accordingly, we find this argument inadequa tely briefed and decline to consider it.
See Fed. R. App. P. 28(a)(8)(A) (requiring a ppellant’s brief to include “appellant’s contentions and the reasons for them”); Bronson v. Swensen , 500 F.3d 1099, 11044 (10th Cir. 2007) (noti ng we routinely refuse to consider arguments that fail to meet Rule 28’s requirements). For related reasons, we decline to addre ss Flute’s argument th at the magistrate judge erred in denying Flute’s motion to appoint counsel. Th e magistrate judge denied Flute’s request as pr emature. And Flute makes no a ttempt to explain why that characterization was incorrect. Flute does su ggest that he later renewed his request for counsel in his subsequent motion for an extension of time. But we see no explicit request for counsel there. 3 Neither, apparently, did the magistrate judge; his ruling on that motion addressed only Flute’ s request for an extension. In sum, Flute provides neither (1) a basi s for disturbing the magistrate judge’s initial ruling denying his request for counsel as premature nor (2) a record citation establishing that this issu e was subsequently “raised a nd ruled on.” 10th Cir. R. 28.2(C)(2). Thus, we won’ t reverse on this basis. See Nixon v. City & Cty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an a ppellant is to explain to us why the district cour t’s decision was wrong.”); Salt Lake Tribune Publ’g Co. v. Mgmt. Planning, Inc. , 454 F.3d 1128, 1142 (10th Cir. 2006) (declining to address issue that district court di dn’t rule on, even though par ties fully briefed it below). We turn next to Flute’s challenges to the district court’s order dismissing his complaint as frivolous. Fi rst, Flute generally assert s that the district court “incorrectly decide[d] the f acts.” Aplt. Br. 6. But Flute fails to identify any specific

3 Instead, it appears that Fl ute cited his lack of counsel as one of the reasons he needed additional time to prepare a nd submit his amended complaint.5 factual findings or explain why they are incorrect. And even assuming the district court made erroneous factua l findings, Flute fails to e xplain how those findings affected its ultimate ruling. Accordingly, we treat this argum ent as waived and decline to consider it. See Bronson , 500 F.3d at 1104. Second, Flute asserts that the district c ourt erred in failing to provide him with “any proper USM-285 forms,” Aplt. Br. 6, which are “used to request service of process,” Kiley v. Kurtz , 533 F. Supp. 465, 467 (D. Colo. 1982). But Flute doesn’t suggest he ever asked the dist rict court to provide him w ith such forms. Nor does he explain how the district cour t’s alleged failure to do so prejudiced him. And we don’t see how it could have; the di strict court dismissed Flut e’s complaint because it determined that his clai ms are legally frivolous, not because Flute failed to adequately serve the defendants. Thus, a ny failure to provide the forms doesn’t constitute a basis for reversal. See § 2111; Sanders , 556 U.S. at 410. Third, Flute argues that the distri ct court overlooked his claim that the defendants violated his cons titutional rights by placing him “in Food Service when [he] already had a job assignment,” Aplt. Br. 2, in violation of a Federal Bureau of Prisons policy. We disagree. The district court acknowledged that this job transfer formed the basis of Flute’s cl aims and then proceeded to explain why the claims were nevertheless meritless. Thus, co ntrary to Flute’s assertions , the district court did not overlook this potential basis for relief. Fourth, Flute argues that by sua sponte di smissing his complaint, the district court improperly advocated for th e defendants in violation of Greenlaw v. United6 States , 554 U.S. 237 (2008). Specifically, he s uggests the district court ran afoul of Greenlaw ’s pronouncement that unde r “our adversary system,” we “assign to courts the role of neutral arbiter of matters the parties present.” Id. at 243. Here, Flute points out, the defendants didn’t “prese nt” any arguments at all. Id.
But Greenlaw ’s actual holding—that “an appe llate court may not alter a judgment to benefit a nonappealing party,” id. at 244—didn’t prohibit the district court from sua sponte dismissi ng Flute’s complaint. In fa ct, the district court’s actions weren’t just permissi ble; they were mandatory. See § 1915A(a) (requiring court to “review . . . a comp laint in a civil action in wh ich a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity”); § 1915A(b)(1) (requiring court to dismiss if it determines “the complaint . . . is frivolous”). Accordingly, the district cour t’s sua sponte decision to dismiss Flute’s complaint is not, as he alle ges, “violative of clearly es tablished federal law under [ Greenlaw ].” Aplt. Br. 3. Finally, Flute suggests that the district court erred in failing to recognize that he was asserting a First Ame ndment claim. We agree that Flute’s amended complaint invokes the First Amendment. But we disa gree that the district court failed to recognize as much; it construe d Flute’s First Amendment cl aim as a retaliation claim and then analyzed it under the th ree-part test we identified in Shero v. City of Grove , 510 F.3d 1196, 1203 (10th Cir. 2007). Because Flute neither su ggests that the district court erred in construing his First Amendment claim as a retaliation claim nor cites any error in the district court’s retaliati on analysis, we declin e to reverse on this7 basis. See Reedy v. Werholtz , 660 F.3d 1270, 1275 (10th Cir. 2011) (“The argument section of [appellants’] openi ng brief does not challenge th e court’s reasoning on this point. We therefore do not address the matter.”). In short, Flute fails to es tablish that the district c ourt erred in dismissing his complaint as frivolous. He also fails to demonstrate “t he existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Accordingly, we deny his motion to proceed in forma pauperis, see id. , remind Flute that he must immediately pay any remaini ng filing fees, and dismiss th is appeal as frivolous, see § 1915(e)(2)(B)(i). As a result, we note that Flute now ha s three strikes for purposes of § 1915(g). See Hafed v. Fed. Bureau of Prisons , 635 F.3d 1172, 1175 (10th Cir. 2011) (holding that dismissal under § 1915A “counts as a strike when the action was dismissed as frivolous, malicious, or for failur e to state a claim”); Flute v. Ruehling , No. 08-cv-484-MJR, 2009 WL 728570, at *1, 3 (S.D. Ill. Mar. 18, 2009) (dismissing Flute’s complaint under § 1915A and assessing strike); cf. Jennings v. Natrona Cty. Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an action the dist rict court dismisse d [as frivolous], both dismissals count as strikes.”), abrogated in part on other grounds by Coleman v. Tollefson , 135 S. Ct. 1759 (2015).

Entered for the Court
Nancy L. Moritz Circuit Judge