F I L E D

United States Court of Appeals

Tenth Circuit

DEC 20 1999

PATRICK FISHER

Clerk

PUBLISH 

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JASON M. DAY,

Plaintiff-Appellant,

v.

GARY D. MAYNARD, Director of the

Oklahoma Department of Corrections;

JAMES SAFFEL, Regional Director

for the Oklahoma Department of

Corrections; DAN REYNOLDS,

Warden at the Oklahoma State

Penitentiary; KEN KLINGER, Deputy

Warden of Administrative Operations

at the Oklahoma State Penitentiary;

JOHN EAST, Unit Coordinator at the

Oklahoma State Penitentiary; EDDIE

MORGAN, Unit Manager at the

Oklahoma State Penitentiary; EMMA

L. WARE, Case Manager at the

Oklahoma State Penitentiary; J. JILES,

Correctional Officer; MOODY,

Sergeant, Correctional Officer at the

Oklahoma State Penitentiary and

assigned to the H-Unit; COOLEY,

Correctional Officer at the Oklahoma

State Penitentiary and assigned to the

Northwest wing of the H-Unit;

DR. MILTON VOGT, Head Medical

Doctor at the Oklahoma State

Penitentiary; DANNY NACE, Head

of Security of the Oklahoma State

No. 99-7059
-2-

Penitentiary; GAYLE KRIEN,

Inter-State Compact Service

Coordinator,

Defendants-Appellees.

ORDER

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

On November 3, 1999, this court issued an order notifying Mr. Day that he

had three strikes pursuant to 28 U.S.C. § 1915(g). We ordered Mr. Day either to

show cause why his appeal should not be dismissed for failure to prepay the entire

filing fee as required by § 1915(g), or to show that the provisions of the Prison

Litigation Reform Act do not apply to this proceeding. Having now considered

the arguments raised in Mr. Day’s response to the court’s order to show cause,

and also those raised in his motion to proceed in forma pauperis, we conclude that 

§ 1915(g) applies and that he is responsible for full payment of the filing fee.

In his motion to proceed in forma pauperis, Mr. Day argued that (1) none of

the matters on which the district court relied in determining that he had three

strikes was dismissed as frivolous or malicious; and (2) all of the cited cases were
1 To the extent this court’s unpublished decision in Jones v. Brooks ,

No. 97-1464, 1998 WL 161038, at **1, n.3 (10th Cir. Apr. 1, 1998) is to the

contrary, it has no precedential value and we decline to follow it. See 10th Cir.

R. 36.3(A). 

The holding that cases dismissed without prejudice counted as strikes

against Mr. Day is a narrow one. We do not consider, for example, whether a

case dismissed without prejudice, then refiled and dismissed a second time would

count as two separate strikes. That question is not presented in this case.

-3-

dismissed without prejudice and therefore did not count as strikes for purposes of

§ 1915(g). The court is not persuaded by these arguments. 

The United States District Court for the District of Connecticut dismissed

Day v. Keefe Supply Co. et al. , No. 95-CV-2772 (D. Conn. Sept. 10, 1996),

because it “lacked an arguable basis in law.” This is the equivalent of a dismissal

for frivolousness. See Neitzke v. Williams , 490 U.S. 319, 325 (1989). The other

two strikes were for cases dismissed for failure to state a claim upon which relief

may be granted, which is also grounds for a strike. See 28 U.S.C. § 1915(g). 

Moreover, a dismissal without prejudice counts as a strike, so long as the

dismissal is made because the action is frivolous, malicious, or fails to state a

claim. See, e.g. , Rivera v. Allin , 144 F.3d 719, 731 (11th Cir.), cert. dismissed ,

119 S. Ct. 27 (1998), petition for cert. filed (U.S. Sept. 21, 1998) (No. 98-6127);

Patton v. Jefferson Correctional Ctr. , 136 F.3d 458, 463-64 (5th Cir. 1998). 1

We turn next to the arguments raised in Mr. Day’s response to the order to

show cause. He asserts that this court should not have counted Day v. Meachum ,
-4-

No. 93-CV-2420 (D. Conn. Dec. 2, 1993) as a strike, because the order dismissing

that case was filed before the enactment of PLRA. This court rejected a similar

argument in Green v. Nottingham , 90 F.3d 415, 418-20 (10th Cir. 1996) (holding

that § 1915(g) merely announced a new procedural rule and that this court may

therefore count prisoner suits dismissed prior to the statute’s enactment as

strikes). Mr. Day’s argument lacks merit.

Finally, Mr. Day argues that he falls under an exception to the three strikes

provision for prisoners “under imminent danger of serious physical injury.” 

§ 1915(g). He claims that his life is in danger in the Connecticut prison where he

now resides. This allegation is not sufficient to obtain relief under the “imminent

danger” exception, however, since his complaint targets Oklahoma defendants

who he fails to show have any control over his current conditions of confinement. 

Cf. Ashley v. Dilworth , 147 F.3d 715, 718 (8th Cir. 1998) (Beam, J., dissenting)

(“[B]y its plain language, [§ 1915(g)] limits the relief we can offer to such a

prisoner to prospective relief for the actions that have caused the immediate risk

of harm.”). 

We conclude that the provisions of the Prison Litigation Reform Act apply

to this proceeding, that Mr. Day has three strikes for purposes of 28 U.S.C. §

1915(g), and that he is responsible for full prepayment of the entire filing fee. 

Accordingly, Mr. Day’s motion to proceed in forma pauperis is DENIED. If Mr.
-5-

Day fails to pay the full filing fee for this appeal to the district court within

twenty days of the date this order is entered, his appeal will be DISMISSED.

Entered for the Court

PATRICK FISHER, Clerk of Court

By:

Keith Nelson

Deputy Clerk