UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

RICHARD LYNN DOPP, 

 Plaintiff - Appellant, 

v. 

RAY LARIMER; FRED SANDERS; FNU 

BRISOLARA, Doctor; FNU BEVAN, 

Doctor; GENESE McCOY, 

 Defendants - Appellees. 

No. 17-6217 

(D.C. No. 5:15-CV-00244-D) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. 

_________________________________ 

Richard Dopp appeals the district court’s dismissal of his 42 U.S.C. § 1983 

claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I

 Before considering the merits of Dopp’s appeal, we must determine whether he 

may proceed under 28 U.S.C. § 1915(g). Pursuant to the Prison Litigation Reform 

Act (“PLRA”), a prisoner may not “bring a civil action or appeal a judgment in a 

 *

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

unanimously that oral argument would not 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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 19, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

civil action” with in forma pauperis (“IFP”) status if he had an action or appeal 

“dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 

which relief may be granted” on three prior occasions “unless the prisoner is under 

imminent danger of serious physical injury.” Id. Noting that Dopp appears to have 

accrued more than three prior PLRA strikes, we entered an order to show cause why 

the appeal should not be dismissed for failure to prepay the filing fee. 

 In his response, Dopp does not deny that he has three strikes, but instead 

argues that he qualifies under the imminent danger exception. The district court 

granted Dopp leave to proceed IFP below because he advanced “specific, credible 

allegations of imminent danger of serious physical harm.” Hafed v. Fed. Bureau of 

Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (quotation and alteration omitted). 

Specifically, Dopp claimed that defendants were deliberately indifferent to his 

cervical spinal impairment with nerve impingement, which was causing him severe 

pain. However, after entering judgment in favor of defendants, the district court 

denied Dopp leave to proceed IFP on appeal because he merely referred generally to 

his prior filings. 

 To file a civil action without prepayment of fees under the imminent danger 

exception, “a prisoner must have alleged an imminent danger at the time he filed his 

complaint.” Id. It appears our court has not yet decided whether a prisoner must 

allege a threat of harm at the time of an appeal to obtain IFP status on appeal. See id. 

at 1180 (noting the question but declining to reach it). The plain language of the 

statute indicates that such an allegation is required. See Woods v. Standard Ins. Co., 
3 

771 F.3d 1257, 1263 (10th Cir. 2014) (if a “statute’s language is plain, the sole 

function of the courts is to enforce it according to its terms” (quotation omitted)). A 

prisoner with three strikes may not “bring a civil action or appeal a judgment in a 

civil action . . . unless the prisoner is under imminent danger of serious physical 

injury.” § 1915(g). By employing the disjunctive and the present tense, the statute 

provides that a prisoner may not appeal with IFP status unless he is in danger. See 

Hafed, 635 F.3d at 1179 (noting § 1915(g)’s use of the present tense). 

 Several of our sibling circuits have concluded that the imminent danger issue 

should be assessed at the time of an appeal. See Williams v. Paramo, 775 F.3d 1182, 

1188 (9th Cir. 2015) (“[A] prisoner who falls within the three strikes provision and 

seeks forma pauperis status may be required to show that an imminent danger exists 

at the time the notice of appeal is filed.”); Ball v. Famiglio, 726 F.3d 448, 467 (3d 

Cir. 2013) (prisoner with three strikes “may proceed IFP if, at the time she filed her 

appeal, she was under imminent danger of serious physical injury” (quotation 

omitted)), abrogated on other grounds by Parker v. Montgomery Cty. Corr. 

Facility/Bus. Office Manager, 770 F.3d 144 (3d Cir. 2017); Martin v. Shelton, 319 

F.3d 1048, 1050 (8th Cir. 2003) (“[T]he requisite imminent danger of serious 

physical injury must exist at the time the complaint or the appeal is filed, not when 

the alleged wrongdoing occurred.”); Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 

1998) (deying IFP status on appeal because appellant had not alleged “that he faced 

imminent danger of serious physical injury at the time that his notice of appeal was 

filed”); see also Asemani v. U.S. Citizenship & Immigration Servs., 797 F.3d 1069, 
4 

1075 (D.C. Cir. 2015) (noting the issue but declining to resolve it). The Williams 

decision provides the most extensive consideration of the issue, holding that courts 

should not “depart on appeal from the standard . . . developed for determining 

imminent danger at the time of the filing of the complaint.” 775 F.3d at 1189. We 

agree. Given that appellate courts are “ill-equipped to engage in satellite litigation 

and adjudicate disputed factual matters” regarding “only a threshold procedural 

question—whether the filing fee must be paid upfront or later,” id. at 1189, 1190, the 

proper course is to apply the same standard at the time a complaint is filed as when 

an appeal is taken. 

 As the district court correctly ruled in granting IFP status below, a prisoner 

qualifies for the exception if he makes “specific, credible allegations of imminent 

danger of serious physical harm.” Hafed, 635 F.3d at 1179 (quotation and alteration 

omitted). And we have previously held that a plaintiff’s particularized “allegations 

that Defendants have displayed a deliberate indifference toward his serious medical 

needs and denied him adequate medical treatment are sufficient to facially establish 

the PLRA’s imminent and serious danger requirement for proceeding IFP.” Davis v. 

GEO Grp. Corrs., Inc., 696 F. App’x 851, 855 (10th Cir. 2017) (unpublished). Dopp 

alleged specific facts in his complaint, claiming that an inadequately treated spinal 

condition was causing him unbearable pain. In his response to our show cause order, 

he claims that the condition is worsening. We conclude Dopp has sufficiently 

alleged an imminent danger of serious physical injury. See Williams, 775 F.3d at 

1190. 
5 

II

 Although we conclude that Dopp has cleared the threshold requirements of 

§ 1915(g), we nevertheless affirm the district court’s dismissal of his action.1

 

A

 Dopp challenges the district court’s grant of summary judgment in favor of Dr. 

Fred Sanders and Nurse Ray Larimer on his deliberate indifference claim. We 

review a grant of summary judgment de novo. Timmons v. White, 314 F.3d 1229, 

1232 (10th Cir. 2003). Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). To prevail on this claim, Dopp 

was required to show that his medical needs were “sufficiently serious” and that “the 

official knew of and disregarded an excessive risk to inmate health or safety.” Al-Turki 

v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014) (quotations and alterations omitted). 

A medical professional who serves in a gatekeeping role may be deliberately indifferent 

if he unreasonably “delays or refuses to fulfill that gatekeeper role due to deliberate 

indifference.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). 

 As the district court explained, Dopp has failed to proffer evidence showing 

that Dr. Sanders or Nurse Larimer were subjectively indifferent to his medical needs. 

The record demonstrates that Dopp consistently received treatment for his condition, 

that he was referred to an outside provider for additional care, and that the outside 

 1

 Because Dopp is proceeding pro se, we construe his filings liberally. See 

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 
6 

provider rescheduled Dopp’s treatment on several occasions. On appeal, Dopp 

continues to assert disagreement with the treatment he received. However, he does 

not cite evidence sufficient to meet the subjective prong as to these defendants. See 

Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006) (“[T]he subjective component is 

not satisfied, absent an extraordinary degree of neglect, where a doctor merely 

exercises his considered medical judgment.”); Oxendine v. Kaplan, 241 F.3d 1272, 

1277 n.7 (10th Cir. 2001) (“[A] prisoner who merely disagrees with a diagnosis or a 

prescribed course of treatment does not state a constitutional violation.” (quotation 

omitted)). 

B

 Dopp also argues that the district court erred in granting defendant Genese 

McCoy’s motion to dismiss. We review de novo a district court’s dismissal for 

failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). A 

complaint must allege “enough facts to state a claim to relief that is plausible on its 

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

 We agree with the district court that Dopp failed to allege McCoy’s “personal 

involvement in the alleged constitutional violation” sufficient to state a § 1983 claim 

against her. See Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012) (quotation 

omitted). Nor has Dopp alleged that his claimed injuries were caused by a policy of 

McCoy’s sufficient to state a claim for supervisory liability. See Dodds v. 

Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). 
7 

C

 Lastly, Dopp contends that his claim regarding inadequate dental care should 

not have been dismissed for failure to exhaust administrative remedies. “We review 

de novo the district court’s finding of failure to exhaust administrative remedies.” 

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). Dopp argues that he was 

thwarted from completing the grievance process because prison officials returned a 

grievance under a restriction policy to which Dopp was subject without adequate 

explanation. We disagree. Prison officials indicated they returned the grievance 

because Dopp’s accompanying affidavit was insufficient. Administrative 

requirements for the affidavit were set forth in plain language and had been provided 

to Dopp. As we have previously held, an inmate subject to grievance restrictions 

“may not successfully argue that he had exhausted his administrative remedies by, in 

essence, failing to employ them.” Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 

2010) (quotation omitted). 

III

 For the foregoing reasons, we AFFIRM. Dopp’s motion to proceed IFP is 

GRANTED. We remind Dopp of his obligation to continue making partial payments 

until his appellate filing fee is paid in full. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge