UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARK T. SALARY, Plaintiff - Appellant,

v. LAWTON R. NUSS; BOARD OF JUSTICES, Defendants - Appellees. No. 14-3164 (D.C. No. 5:13-CV-03214-SAC) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.
Appellant Mark T. Salary is a prisoner of the State of Kans as appearing pro se, and seeking to proceed in forma pauperis (I FP). He appeals from the district court’s order dismissing his civil rights complaint filed under 42 U.S.C. § 1983 for failure to state a claim, subsequent to preliminary screening under 28 U.S.C. § 1915A. The

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### February 17, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - court reasoned that the defendants—the members of the Kansas Supreme Court— were absolutely immune in their judicial capacity from a civil suit challenging their orders concerning the number of photocopies that must be provided with a pro se brief in a state cr iminal appeal. Because appellant is pro se, we afford his pleadings a liberal construction.
See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam). Appellant’s argument on appeal that the concept of stat e judicial immunity violates the United States Constitution lacks ar guable merit, and we theref ore dismiss the appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)( i). And because appellant does not present a non-frivolous argumen t on appeal, we deny his motion for leave to proceed IFP on appeal. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). As explained below, we also assess two “strikes” under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). In additi on, we have reviewed appellant’s other dismissals and conclude that he accumulated three st rikes as of November 13, 2014. “Under the PLRA, prisoners obtain a ‘s trike’ against them for purposes of future ifp eligibility when their ‘action or appeal in a court of the United States . . . was dismissed on the grounds th at it is frivolous, malicious , or fails to state a claim upon which relief may be granted. . . .’” Hafed v. Fed. Bureau of Prisons , 635 F.3d 1172, 1176 (10th Cir. 2011) (quoting 28 U.S. C. § 1915(g)). The district court’s dismissal of appellant’s compla int in this case for failure to state a claim constitutes a strike. See id . Our dismissal of this appeal as frivolous constitutes a second strike.- 3 - See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). When prisoners accumu late three strikes, they mu st “prepay the entire filing fee before federal courts may consider their civi l actions and appeals.” Id. (internal quotation marks omitted). The “only excep tion” to the prepayment requirement in § 1915(g) is where a prisone r who has accrued three strike s has raised “a credible allegation that he is in imminent danger of serious physical harm.” White v. Colorado , 157 F.3d 1226, 1232 ( 10th Cir. 1998). Having reviewed appellant’s other dismi ssals, we conclude th at he previously accrued a strike when the district court dism issed his complaint as legally frivolous in Salary v. United States Government , D.C. No. 5:14-cv-03067-SAC-DJW. The district court entered its di smissal on June 6, 2014, and a ppellant did not appeal that dismissal to this court, so it ripened to be counted as a strike on August 5, 2014, when his sixty days to appeal to this court expired. See Hafed , 635 F.3d at 1178; see also Fed. R. App. P. 4(a)(1)(B)(i) (allowi ng sixty days to appeal when the United States is a party). This court has also twi ce previously advised appella nt that he had acquired strikes under § 1915(g). See Salary v. U.S. Gov’t , 575 F. App’x 826, 827 (10th Cir. 2014) (assessing one strike upon affirming the district court’s order dismissing the complaint in D.C. No. 5:14-cv-03061-SAC); Salary v. Goff , 572 F. App’x 668, 670 (10th Cir. 2014) (ass essing one strike upon affirmi ng the district court’s order dismissing the complaint in D.C. No. 5: 13-cv-03052-SAC). Appellant was allowed- 4 - ninety days in which to file a petition for writ of certiorari with the Supreme Court,

see S. Ct. R. 13.1, but he did not file a petition for writ of certiorari in either of those cases. Our affirmance in Salary v. United States Government was entered on August 11, 2014, so the strike assessed in that case counted against appellant as of November 10, 2014. See Hafed , 635 F.3d at 1176 (“We now clarify that a strike counts against a prisoner from the date of th e Supreme Court’s denial or dismissal of a petition for writ of certiorari, if the pris oner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he di d not.”). Our affirmance in Salary v. Goff was entered on July 24, 2014, a nd we denied appellant’s timely petition for rehearing on August 15, 2014. The time to file a petition for writ of certiorari with the Supreme Court runs fr om the denial of a timely petition for rehearing. United States v. Hurst , 322 F.3d 1256, 1259 (10th Cir. 2003). As a result, the strike in Salary v. Goff counted against appellant as of November 13, 2014. Appellant accumulated his third strike and “struck out” under § 1915(g) on November 13, 2014. His prior three strike s do not apply to the appeal before us because it was filed before November 13, 2014. See Hafed , 635 F.3d at 1175 (indicating that a prisoner is barred from proceeding IFP if “he had three strikes countable in this court at the time he filed” his app eal). But appellant may not proceed IFP in any federal action or a ppeal, other than habeas, filed after November 13, 2014, but must prepay the fi ling fee in full in order to proceed, unless he satisfies the “imminent da nger” exception in § 1915(g).- 5 - This appeal is dismisse d as frivolous. Appellant’s motion for leave to proceed IFP on appeal is denied, and he is direct ed to immediately pay the entire $505.00 filing fee for this appeal.

Entered for the Court

John C. Porfilio Circuit Judge