FILED

United States Court of Appeals

Tenth Circuit

December 18, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENT FRENCH,

Plaintiff - Appellant, No. 09-1356

GRADY, LEE, SHOCKLEY, ROY,

VIGIL, CRAWFORD, HURD, PUNK,

KNOOR, BASS, POPKEN, BROWNE,

SMITH, BAUTON, McWILLIAMS,

WILLIAMS, JIM SHONKOSKI, BURNS,

DANIELS, and KING,

Plaintiffs,

(D. Colorado)

(D.C. No. 09-cv-00977-ZLW)

v.

STATE OF COLORADO, S.C.F.,

MEDICAL STAFF, GUARD STAFF,

A.D.A. COLORADO SPRINGS,

D.O.C.C., GOV. BILL RITTER; STATE

ATTY. GENERAL JOHN SUTHERS,

Defendants - Appellees.

-------------------------------------------

KENT FRENCH,

Plaintiff - Appellant, 09-1359

v. (D. Colorado)

NURSE PASHA and CAPTAIN GIBSON, 

Defendants - Appellees.

(D.C. No. 09-cv-01280-ZLW)

-------------------------------------------

KENT FRENCH,

Petitioner - Appellant, No. 09-1452
*

This order and judgment is not binding precedent except under the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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v. (D. Colorado)

WARDEN, STERLING CORR.

FACILITY, and ATTORNEY GENERAL

OF THE STATE OF COLORADO,

Respondents - Appellees.

(D.C. No. 09-cv-01382-ZLW)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and SEYMOUR, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases

are therefore ordered submitted without oral argument.

We have combined these three appeals for ease of disposition. In Case

No. 09-1356, Kent French, appearing pro se, argues that the staff at the Sterling

Correctional Facility has failed to dispense his medications and medical

appliances in a timely way and that the temperature in the facility is too cold in

the winter and too hot in the summer, all in violation of his rights under 42 U.S.C.
1

Mr. French’s handwritten pleadings are very difficult to read. It appears

that he stated his age to be 62, but we cannot be certain.

2

We note that while the denial of leave to proceed ifp is a final, appealable

order over which we have jurisdiction, Roberts v. U.S. Dist. Ct., 339 U.S. 844,

845 (1950) (per curiam), the dismissal of a complaint without prejudice is

generally not final or appealable. Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d

1271, 1275 (10th Cir. 2001). “The critical determination as to whether an order is

(continued...)

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§ 1983. In Case No. 09-1359, Mr. French argues that certain staff at the facility

harassed and threatened him, causing him to “suffer unduly because of my age

(62)1

 years and A.D.A. Native American,” Appellant’s Op. Br. at 2, and that he

received numerous “frivolous” write-ups, again in violation of his rights under

section 1983. In Case No. 09-1452, Mr. French argues that his Colorado state

court check fraud conviction is unconstitutional for various reasons, in violation

of 28 U.S.C. § 2254. None of the defendants were served in any of these cases,

and as a result we do not have briefs from the defendants. We address each case

in turn.

I. Case No. 09-1356:

As indicated, Mr. French argues that his medical needs were not met in a

timely fashion, and that the temperature inside the facility was uneven and

uncomfortable. The district court dismissed the case without prejudice after

Mr. French failed to submit a proper in forma pauperis application under 28

U.S.C. § 1915. The court also entered an order denying Mr. French leave to

proceed on appeal ifp. This appeal followed.2
2

(...continued)

final is whether the plaintiff has been effectively excluded from federal court

under the present circumstances.” Id. (quotations and alteration omitted). The

ultimate question is whether “the district court effectively ‘determined that the

action would not be saved by an amendment of the complaint which the plaintiff

could reasonably be expected to make.’” Moya v. Schollenbarger, 465 F.3d 444,

450 (10th Cir. 2006) (quoting Sherman v. Am. Fed’n of Musicians, 588 F.2d 1313,

1315 (10th Cir. 1978)).

While the district court stated that the dismissal was “without prejudice,”

the court also stated it was dismissing “the Complaint and the action.” Order at 2. 

We have noted that “[i]n evaluating finality, . . . we look to the substance and

objective intent of the district court’s order, not just its terminology.” Id. at 449. 

“A dismissal of the complaint is ordinarily a non-final, nonappealable order . . . ,

while a dismissal of the entire action is ordinarily final.” Id. (further quotation

omitted). The district court in this case explicitly dismissed the entire “action.”

Thus, the dismissal is a final decision that we may review.

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After the district court denied Mr. French leave to proceed on appeal ifp,

based upon the conclusion that an appeal could not be taken in good faith, this

court required him to submit a renewed application in our court. He did so on

September 29, 2009. Accordingly, we must decide whether to grant that

application. Under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), we “shall dismiss the

case . . . if [we] determine[] that . . . the . . . appeal . . . is frivolous or malicious

[or] fails to state a claim on which relief may be granted.” Id.. Mr. French’s

brief contains no legal citations, and only vague, conclusory and extremely

general allegations of mistreatment. Although, because Mr. French proceeds pro

se, “we must construe his arguments liberally[,] this rule of liberal construction

stops . . . at the point at which we begin to serve as his advocate.” United States

v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). Additionally, “an appellant’s pro
3

For example, in the sections of the form brief where Mr. French is directed

to state his “Argument and Authorities,” he states that he “will disclose at pretrial conference.” Appellant’s Op. Br. at 3.

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se status does not excuse the obligation of any litigant to comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” 

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

We accordingly hold that Mr. French’s appeal is frivolous and it fails to

state a claim on which relief may be granted. We therefore affirm the district

court’s order of dismissal, deny his request to proceed on appeal ifp, and we

dismiss this appeal.

II. Case No. 09-1359:

As noted above, Mr. French argues that certain staff at the facility harassed

and threatened him, causing him to suffer because of his age and because of his

Native American status. The district court dismissed this claim as “legally

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).”

The district court also denied Mr. French’s request to proceed on appeal

ifp, for failure to cure the deficiencies in his petition. Our court then required

Mr. French to submit a renewed application in this court. As with his prior

appeal, Mr. French fails to cite a single legal authority or develop any coherent

legal argument.3

 We conclude that Mr. French’s appeal is frivolous and fails to

state a claim on which relief may be granted, pursuant to 28 U.S.C.
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§ 1915(e)(2)(B)(i) and (ii). As a result, we affirm the district court’s dismissal,

deny Mr. French’s request to proceed on appeal ifp, and we dismiss this appeal. 

We also assess two strikes against Mr. French under 28 U.S.C. § 1915(g). See

Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.

1999) (“If we dismiss as frivolous the appeal of an action the district court

dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”)

III. Case No. 09-1452:

This 28 U.S.C. § 2254 habeas case challenges the constitutionality of

Mr. French’s Colorado state court check fraud conviction. The district court

stated that Mr. French actually filed four habeas actions, which the court

consolidated. The district court then held that all the claims were time-barred and

were not eligible for tolling of any kind, and it accordingly dismissed

Mr. French’s complaint.

The district court subsequently issued an order denying Mr. French a

certificate of appealability (“COA”). The court also denied leave to proceed on

appeal ifp based on its assessment that an appeal could not be taken in good faith. 

This appeal followed. Following the district court’s denial of Mr. French’s

request to proceed on appeal ifp, we required him to file a renewed application

here, which he has done. Additionally, because the district court denied him a
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COA, he must seek one from us before he may pursue his appeal. See Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000).

A COA may issue only if a petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing,

an applicant must demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations

omitted). As with his pleadings in his other cases, Mr. French’s brief cites no

legal authorities and utterly fails to develop any coherent legal arguments. 

Accordingly, we deny him a COA, and, for substantially the same reasons, we

deny his request to proceed on appeal ifp, and we dismiss his appeal.

CONCLUSION

For the foregoing reasons, and as discussed more particularly with regard to

each numbered appeal, we AFFIRM the district court’s orders of dismissal, we

DENY Mr. French leave to proceed on appeal ifp, and we DISMISS each of

Mr. French’s appeals. Mr. French remains obligated to pay all filing fees due. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge