UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JABARI J. JOHNSON, Plaintiff - Appellant,

v. THOMAS LITTLE; JOY HUDGON; DAVID LIGAC; PAUL AUDET; CHANCE TURNER; KYLE MILLER; CRAWFORD; MORONES; ANAYA; BRADLEY VOGAN; KYLE MOORE; RICHARD PEEK; LAMBKINS; FOX; AYALA; COLLINS; KILPOLITES; CASADY; HUNT; HOFFMAN; GILLIS; VALLE; LATORRE; ELDEBI; COMBEE; McCALLISTER; MARTIN; DEFRANCISCO; TRAVIS ROOT; JONERIC COX, Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– JABARI J. JOHNSON, Plaintiff - Appellant,

v. KATHLEEN BOYD, Defendant - Appellee.

––––––––––––––––––– –––––––––––––––– JABARI J. JOHNSON, Plaintiff - Appellant, No. 20-1355 (D.C. No. 1:20- CV-02613-LTB) (D. Colo.)

No. 20-1370 (D.C. No. 1:20- CV-02663-LTB) (D. Colo.) FILED United States Court of Appeals Tenth Circuit 

### April 21, 2021 Christopher M. Wolpert Clerk of Court2 v. STEPHANIE DALTON, Defendant - Appellee. No. 20-1389 (D.C. No. 1:20- CV-03068-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Jabari J. Johnson, a Colorado prisone r proceeding pro se, appeals from the district court’s dismissal of three lawsuits for failure to comply with that court’s previously imposed filing restrictions. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dism issal of all three suits. 1
I. BACKGROUND
A. Mr. Johnson is subject to filing re strictions in th e district court. Mr. Johnson has filed more than one hundred lawsuits in the district court. In March 2020, the district court imposed filing re strictions upon him. Johnson v. Hawkins , No. 19-cv-03730-LTB, at 2, 6 (D. Colo. Mar. 4, 2020) (unpublished).

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We consolidate these appeal s for the sole purpose of this order and judgment. See Fed. R. App. P. 3(b)(2).3 Among other requirements, the restric tions require Mr. Johnson to “properly complete a Court-approved prisoner compla int/habeas corpus application form by completing all sections of th e form pursuant to the form instructions” and “provide a notarized affidavit that ce rtifies the lawsuit is not interposed for any improper purpose to harass or cause unnecessary dela y, and that the filing complies with [the court’s] injunction, Fed. R. Civ. P. 8,” and ot her applicable rules. Id. at 2. Mr. Johnson did not appeal from the or der imposing the filing restrictions.
B. Mr. Johnson must show “imminent dan ger of serious physical injury.” In addition, 28 U.S.C. § 1915(g) imposes restrictions on Mr. Johnson. Under § 1915(g), a prisoner who has brought three or more acti ons or appeals that were dismissed as frivolous or ma licious, or for failure to st ate a claim, may not proceed without prepayment of costs and fees “ unless the prisoner is under imminent danger of serious physical injury.” These restrict ions apply both to civ il actions in district court and appeals in circuit court. The district court has dism issed at least three of Mr . Johnson’s prior suits as frivolous. See Johnson v. Hill , No. 20-cv-00188-LTB, at 9, 11 (D. Colo. Mar. 6, 2020) (unpublished); Johnson v. Hampton , No. 20-cv-00161-LTB, at 8, 10 (D. Colo. Mar. 6, 2020) (unpublished); Johnson v. Ponce , No. 20-cv-00014-LTB, at 8-9, 10 (D. Colo. Mar. 4, 2020) (unpublished). 2 He therefore must eith er prepay costs and fees

2 In show-cause responses in all three appeals, Mr. Johnson disputes whether the cited cases were frivolous. But he does not contest that the district court dismissed them as frivolous. He did not appeal from the j udgments, and it is too late for him to try to appeal from them now. See Bowles v. Russell , 551 U.S. 205, 2144 or demonstrate that he “is under imminent danger of serious physical injury” to proceed without prepayment in di strict court or this court.
II. DISCUSSION Mr. Johnson filed the suits underlying these appeals in the fall of 2020. In each case, the district court concluded that Mr. Johnson had failed to comply with its filing-restriction order and dismissed the suit. It also denied hi m leave to proceed on appeal without prepayment of costs and fees.
A. Mr. Johnson Has Satisfied the “Imminent Danger” Requirement to Proceed with These Appeals. Mr. Johnson filed in this court moti ons to proceed on appeal without prepayment of costs and fees. In each appe al, this court issued a show-cause order requiring Mr. Johnson to show th at he “is under imminent danger of serious physical injury,” as required by § 1915(g). To satisfy § 1915(g), a prisoner must pres ent “specific, credible allegations of imminent danger of serious physical harm.” Kinnell v. Graves , 265 F.3d 1125, 1128 (10th Cir. 2001) (internal quot ation marks omitted). “He sh ould identify at least the general nature of the serious physical injury he asserts is immine nt. Vague and utterly conclusory assertions are insufficient.” Hafed v. Fed. Bureau of Prisons , 635 F.3d 1172, 1180 (10th Cir. 2011) (brackets, citation, and internal quot ation marks omitted),

(2007) (“[T]he timely filing of a notice of appeal in a ci vil case is a jurisdictional requirement.”); Fed. R. App. P. 4(a)(1)(A) (setting a thirty-d ay appeal period). He is bound by the judgments in those suits. See Kinnell v. Graves , 265 F.3d 1125, 1128 (10th Cir. 2001).5 abrogated on other grounds by Coleman v. Tollefson , 575 U.S. 532 (2015). “[W]e construe his filings liberally and accept his we ll-pled allegations as true, and we require only that his allegations facia lly satisfy the threshold show ing that the imminent-danger exception applies.” Boles v. Colo. Dep’t of Corr. , 794 F. App’x 7 67, 770 (10th Cir. 2019) (unpublished) (citation omitted). 3
1. No. 20-1355 In appeal No. 20-1355, Mr. Johnson’s sh ow-cause response as serts that “he is deprived of his mandated Dr.s order of wheelchair forced to scoot and crawl on floor.” No. 20-1355 Resp. at 2. His comp laint alleges that he has been issued medical orders for a wheelchai r, that he has shown the relevant documents to the defendants and told them that he is sufferi ng pain, and that the defendants’ refusal to allow him a wheelchair is “causing further pa in and injury to Plaintiffs current injuries to feet, back , and leg as Plaintiff scoots and crawls on injuries.” No. 20-1355
R. at 13. We have recognized that “[i]f [a pris oner] does indeed require a wheelchair, the failure to provide him with one coul d result in a number of serious physical injuries.” Fuller v. Wilcox , 288 F. App’x 509, 511 (10th Cir. 2008) (unpublished).

3 “Although unpublished orders and opin ions generally are not considered binding precedent, . . . such an order or opinion may be relied on for the purpose of disposing of the issue presente d if it has persuasive value with respect to a material issue in a case and would assist the court in its disposition.” United States v. Engles , 779 F.3d 1161, 1162 n. 1 (10th Cir. 2015). See Fed. R. App. 32.1 (a); 10th Cir. R. 32.1(A).6 We therefore concluded that the prisoner’s allegations of being deprived of a medically necessary wheelchair satisfi ed the imminent-danger exception. See id. Similarly, Mr. Johnson’s alle gations of being deprived of a medically necessary wheelchair, causing him pain and aggrava ting other injuries, satisfy § 1915(g). 4 We therefore grant the motion to proceed on app eal without prepayment of costs and fees in No. 20-1355.
2. No. 20-1370 In appeal No. 20-1370, Mr. Johnson’s sh ow-cause response asserts that he “is deprived of an inhaler to assist [him] with ongoing re ocuring asthma attacks.” No. 20-1370 Resp. at 2. He further assert s that his asthma “is marked by recurrent episodes of airway obstruction, manife sted by labored breathing accompanied by weezing and coughing.” Id. “[I]f not treated [he] could die.” Id. His complaint alleges that he suffers from as thma, that he has requested an inhaler, and that he had active asthma attacks and was not provided or was deprived of an inhaler on three specific dates. It alleges that he suffers from shortne ss of breath, chest pain, and wheezing, and that he has b een unable to breathe. Mr. Johnson alleges a conti nuing medical need and that the defendant denied him a particular medication that he need ed on at least three specific occasions. See Hafed , 635 F.3d at 1180 (stating that th e prisoner “should make a specific

4 The complaint and show-cause response in No. 20-1355 also refer to injuries from being deprived of a shower cell and showers and recreation. Having concluded that the wheelchair allegations satisfy § 1915(g), we need not consider those additional allegations.7 reference as to which of the defendants may have deni ed him what medication or treatment for what ailment on what occasion” (internal quotation marks omitted)). These allegations adequately show, unde r § 1915(g), that Mr. Johnson “is under imminent danger of seri ous physical injury.” See Fuller v. Myers , 123 F. App’x 365, 367 (10th Cir. 2005) ( unpublished) (holding that alle gations of breathing difficulties and other respiratory problems caused by prison ventilation system established imminent danger); see also Davis v. GEO Grp. Corr., Inc. , 696 F. App’x 851, 855 (10th Cir. 2017) (unpublishe d) (“[A]llegations that De fendants have displayed a deliberate indifference toward [a prisoner’s ] serious medical needs and denied him adequate medical treatment are sufficient to facially establish th e . . . imminent and serious danger requirement.”). We therefore grant the motion to proceed on appeal without prepayment of cost s or fees in No. 20-1370.
3. No. 20-1389 In appeal No. 20-1389, Mr. Johnson’s sh ow-cause response again asserts that the defendant has deprived him of a medica lly necessary wheelchai r. The complaint makes the same assertions. For the same reasons discusse d, these allegations satisfy § 1915(g). We therefore grant the motion to proceed on appeal without prepayment of costs or fees in No. 20-1389.
B. The District Court Did Not Abuse Its Discretion in Dismissing the Suits.

Having determined that Mr. Johnson sa tisfies § 1915(g) in each of these appeals, we next consider the district c ourt’s dismissal orders. “We review for an abuse of discretion the district court’s d ecision to impose the sanction of dismissal8 for failure to follow cour t orders and rules.” Gripe v. City of Enid , 312 F.3d 1184, 1188 (10th Cir. 2002); see also Stine v. U.S. Fed. Bureau of Prisons , 465 F. App’x 790, 800 (10th Cir. 2012) (unpublished) (reviewing dismissal pursuant to filing restrictions for abuse of disc retion). “Under this standard, we will not disturb a trial court’s decision absent a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Norton v. City of Marietta , 432 F.3d 1145, 1156 (10th Cir. 2005) (per curiam) (internal quotation marks omitted).
1. No. 20-1355 In appeal No. 20-1355, the complaint name d thirty defendants. It alleged that they “failed to act to Plain tiffs disability . . . , depriv ing the Plaintiff of [Americans with Disabilities Act] accommodations of wheelchair and shower cell/shower and recreation from 6/11/20 - current date.” No . 20-1355 R. at 13. The district court held that Mr. Johnson had not sa tisfied the filing rest rictions. First, he instituted the litigation to harass the defendants. Second, the complaint did not comply with Rule 8 because it failed to state Mr. Johnson’s claims in a cl ear and concise manner and to state personal participation by all the defendants. The court also noted that “the medical claims at issue are being addressed in cases pendi ng before this Court.” Id.
at 52. The district court did not abuse its disc retion in concluding that the litigation was instituted to harass the de fendants. As the court c oncluded, the complaint did not satisfy Rule 8. “[T]he pleading st andard Rule 8 announces does not require9 detailed factual allegations , but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A nd the phrase “unadorne d, the-defendantunlawfully-harmed-me accusation” aptly de scribes the complain t. The complaint contains few specific allega tions as to each defendant ’s conduct. “Threadbare recitals of the elements of a cause of action, s upported by mere conclusory statements,” and “naked assertions devoi d of further factual enhancement” do not satisfy Rule 8. Id. (brackets and internal quotation marks omitted). Also, Mr. Johnson does not challenge the district court’s conclusion that the medical issues raised in this suit were already be ing addressed in ot her pending cases. “If the district court states multiple alternative grounds fo r its ruling and the appellant does not challenge all those grounds in the opening brief, then we may affirm the ruling.” Rivero v. Bd. of Regents , 950 F.3d 754, 763 (10th Cir. 2020). For these reasons, Mr. Johnson has failed to show that th e district court abused its discretion in dismissing th e complaint in No. 20-1355.
2. No. 20-1370 In appeal No. 20-1370, Mr. Johnson sued one defendant for not providing or for depriving him of an inhaler to treat his asthma. The dist rict court held that he did not comply with the filing restriction to co mplete Section E of the pro se complaint form, which addresses prior lawsuits: To the extent that the Cour t is able to decipher the information Plaintiff has provided in Section E., the Court finds that (1) at least three of the cases he identifies are listed10 twice; (2) ) in one of the case s he identifies he is not the named plaintiff, which he has been informed about this discrepancy before; and (3) he has filed 101 cases in this Court, not including his six mo st recent cases, but he only lists, to the extent the Court is able to identify each of the listed cases, 96 separate cases filed in this Court. No. 20-1370 R. at 37. The court directed Mr. Johnson how to list his cases more legibly going forward. On appeal, Mr. Johnson argues he cannot co mpletely fill out Section E because the law librarian refuses to gi ve him sufficient paper. Ev en assuming that is so, he does not challenge the district court’s findi ngs that his Section E contains errors, including an error that the district court has previously pointed out to him. As stated above, we may affirm if an appellant fail s to challenge all of a district court’s multiple grounds for a ruling. See Rivero , 950 F.3d at 763. Mr. Johnson also attempts to challenge the filing-restricti on order, asserting the district court lacked au thority to issue it. But he did not appeal from the judgment in Hawkins when the district court imposed the restrictions, and it is too late for him to appeal from it now. See Bowles v. Russell , 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”); Fed. R. App. P. 4(a)(1)(A) (setting a thirty-d ay appeal period). He is bound by Hawkins

. See Kinnell , 265 F.3d at 1128. For these reasons, Mr. Johnson has failed to show that th e district court abused its discretion in dismissing th e complaint in No. 20-1370.11 3. No. 20-1389 The complaint in appeal No. 20-1389 alle ges that the defenda nt first provided Mr. Johnson with a wheelchair and medical slip for it, but then removed the wheelchair in violation of his rights to equal protection, freedom of speech without retaliation, and to be free from cruel and unusual punishment. The complaint alleged also that Mr. Johnson had been deprived of a shower cell. The district court held that Mr. Johnson had failed to complete Section E of the pro se compla int form. Further, noting that he had already filed a complain t against this defendant regarding access to a wheelchair, the district cour t held that this suit was du plicative and an attempt to circumvent the pending case. On appeal, Mr. Johnson reiterates that the law librarian will not provide enough paper for him to complete Section E. He further asserts, without any detail, that this case presents different claims from the other pending case. Apart from Section E, he has not adequate ly explained how the claims in this case differ from the claims in the other case, or why he could no t have asserted all his claims against this defendant in the other case. Finally, Mr. Johnson repeats his argumen t that the district court lacked authority to issue the f iling restrictions in the first place. As stated above with regard to No. 20-1370, however, Mr. Johnson did not appeal from the judgment at the time, and he cannot appeal from it now. For these reasons, Mr. Johnson has failed to show that th e district court abused its discretion in dismissing th e complaint in No. 20-1389.12 III. CONCLUSION In No. 20-1355, we deny Mr. Johnson ’s “Motion Reques ting Injunction and Motion to Stay.” In Nos. 20-1370 and 20- 1389, we deny his mo tions for a status report as moot. In all three appeals, we grant his motions to proceed without prepayment of costs or fees, and we affirm the district court’s judgments.
IV. WARNING In the last six months, Mr. Johnson has filed 34 appeals in this court, 28 from orders dismissing his complaints for failure to satisfy the dist rict court’s filing restrictions. To date, this court has dismissed 13 of Mr. Johnson’s appeals for lack of prosecution (12 were from the district court’s dismissals under its filing restrictions). The underlying suits name many of the sa me defendants, and the allegations in several of them are substantia lly similar. The appeal docum ents also are duplicative. We place Mr. Johnson on notice that if he files future appeals from
district court cases in which he has ma de no demonstrable attempt to comply with district court filing restrictions, th is court may impose filing restrictions or other appropriate sanctions. “The right of access to the courts is neither absolute nor unconditional.” Winslow v. Hunter (In re Winslow) , 17 F.3d 314, 315 (10th Cir. 1994) (per curiam) (brackets and internal quotation marks omit ted). Federal cour ts have inherent authority “to regulate the activities of abus ive litigants by imposing carefully tailored restrictions under the appr opriate circumstances.” Tripati v. Beaman , 878 F.2d 351, 352 (10th Cir. 1989) (per curiam (internal quotation marks omitted).13 Although “litigiousness alone is not a sufficient reason to restrict access to the court,” Mr. Johnson’s “abusive and repetitive filings have strained the resources of this court.” In re Winslow , 17 F.3d at 315. As stated ab ove, he also has filed more than one hundred lawsuits in the district court and is unde r filing restrictions in that

court. See Judd v. Univ. of N.M. , 204 F.3d 1041, 1044 (10t h Cir. 2000) (considering litigation in other jurisdictions as grounds for filing restrict ions). “[W]here . . . a party has engaged in a pattern of litigati on activity which is manifestly abusive, restrictions are appropriate.” In re Winslow , 17 F.3d at 315 (internal quotation marks omitted).

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge