UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ARTHUR J. LOMAX, a/k/a Arthur James Lomax, Plaintiff - Appellant,

v. CHRISTINA ORTIZ-MARQUEZ; MATASHA KINDRED; DANNY DENNIS; MARY QUINTANA, Defendants - Appellees. No. 18-1250 (D.C. No. 1:18-CV -00321-GPG-LTB) (D. Colorado)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , HARTZ , and McHUGH , Circuit Judges.

________________ _________________ Arthur J. Lomax appeals the dist rict court’s order denying him leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 . The district court denied Mr. Lomax’s motion as barred by the three-strikes provision, 28 U.S.C. § 1915(g). Because Mr. Lomax has accumulated three strikes prior to commen cing this action,

* After examining Mr. Lomax’s bri ef and the appellate record, th is 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 submitt ed 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 pers uasive value consistent with Federal Rule of Appellate P rocedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 8, 2018
Elisabeth A. Shumaker Clerk of Court2 and because he has not alleged su fficient imminent danger, we a ffirm the judgment of the district court.
I. BACKGROUND Mr. Lomax is a Colorado prisoner at the Limon Correctional Faci lity. Mr. Lomax was previously incarcer ated at the Centennial Correct ional Facility and filed a complaint naming, as defe ndants, five Centennial Correc tional Facility employees and a member of the Ce ntral Classification Committee at Offender Services. Mr. Lomax also filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Up on direction of the district co urt, Mr. Lomax amended his complaint. Through h is amended complaint, Mr. Lomax alleged Fifth, Eighth, Ninth, and Fourteenth Ame ndment violations stemming fro m his expulsion from the Sex Offender Treatment a nd Monitoring Program at Cente nnial Correctional Facility. The same district cour t dismissed three of Mr. Lomax’s previous actions on the grounds that they fai led to state a claim. In Lomax v. Hoffman , No. 13-02131-BNB ̧ 2013 U.S. Dist. LEX IS 115589, at *4–5 (D. Colo. A ug. 15, 2013), the district court dismisse d the action as barred by Heck v. Humphrey , 512 U.S. 477 (1994) (holding that a litigant cannot bring a § 1983 claim cha llenging a conviction’s legitimacy until that conviction has been dismissed). The distr ict court dismissed Mr. Lomax’s second action, Lomax v. Hoffman , No. 13-cv-03296-BNB, 2014 U.S. Dist. LEXIS 8230, at *3 (D. Colo. Jan. 23, 2014), also based on the a ction being barred by
Heck . Mr. Lomax brought a third action, Lomax v. Lander , No.3 13-cv-00707-WJM-KMT, 2014 U.S. Dis t. LEXIS 55056 (D. Colo. Apr. 21, 2014) (adopting the magistrate judge’s recommendation in Lomax v. Lander , No. 13-cv-00707-WJM-KMT, 2014 U.S. Dis t. LEXIS 55058 at *9–22 (D. C olo. Mar. 18, 2014)), which the district court dismissed for lack of subject matter jurisdiction and failure to state a claim. 1 The district court that scr eened Mr. Lomax’s present complaint concluded th at all three dismissals qualified as stri kes for purposes of § 1915(g). Because of the previous strikes, t he district court ordered Mr. Lomax to show cause before proceeding in forma pauperis . In response to the show cause order, Mr. Lomax advanced two arguments . First, Mr. Lomax argued that because the district court dismissed his prev ious complaints without prejud ice, the dismissals do not count as strikes. Second, Mr . Lomax argued that if his prev ious dismissals counted as strikes, he is under imminent physical danger and, t herefore, satisfies the only exception to the three strike s rule. In his response to th e show cause order, Mr. Lomax alleged his presence a t the Limon Correctional Facili ty places him in imminent physical danger due to how the guards there have treat ed him in the past. Specifically, Mr. Lomax alleges that a Lt. Wilson physically as saulted him the last time he was housed at Limon Corre ctional Facili ty. And, in an e arly filing before the district court, Mr. Lomax repor ted that a Limon Correctional Fa cility guard

1 The district court dismissed tw o of Mr. Lomax’s claims for lac k of subject matter jurisdiction and the othe rs for failure to state a claim

. See Lander , 2014 U.S. Dist. LEXIS 55058 at *9–22.4 commented that he thought Mr. L omax was dead by now and that, i n general, the guards do not like sex offenders, h ave shown bias against sex o ffenders, and say all sex offenders should be dead. The trial court rejected Mr. L omax’s arguments to proceed in forma pauperis and required him to pay the $4 00 filing fee if he wished to pur sue his claims. Mr. Lomax appeals from the distric t court’s denial of leave to proceed in forma pauperis . We exercise jurisdiction under 28 U.S.C. § 1291. See Roberts v. U. S. Dist. Court for the N. Dist. of Cal. , 339 U.S. 844, 845 (1950) (p er curiam) (relying on Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541 (1949), and § 1291 to conclude “[t]he denial by a Di strict Judge of a motion to proceed in for ma pauperis is an appealable order”); see also Lister v. Dep’t of Treasury , 408 F.3d 1309, 1310 (10th Cir. 2005) (applying Roberts when taking jurisdiction ove r appeal from denial of motion to proceed in forma pauperis ).
II. DISCUSSION Mr. Lomax proceeds without represe ntation; thus we will “libera lly construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). Accepting as true the facts laid out in the complaint, we review the district court’s dete rmination that Mr. Lomax had th ree strikes de novo.
Smith v. Veterans Admin. , 636 F.3d 1306, 1309 (10th Cir. 2011).
A. Motions Denied Without Pr ejudice Count as Strikes The statute governing when a pri soner is precluded from proceed ing in forma pauperis states:5 In no event shall a prisoner br ing a civil action or appeal a j udgment in civil action or proceeding under this section if the prisoner h as, on 3 or more prior occasions, while incarcerated or detained in any fac ility, brought an action or appeal in a court of the United States tha t was dismissed on the grounds that it is frivolous, malicious, or fa ils to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of ser ious physical injury. 28 U.S.C. § 1915(g). Mr. Lomax a lleges “a dismissal without pre judice for failure to state a claim does not count as a strike.” ROA at 37 (citing Mendez v. Elliot , 45 F.3d 75, 78 (4th Cir. 1995)). Under Mr. L omax’s argument, the dismis sals without prejudice of two of his pr ior actions as barred by Heck would not count as strikes. A “dismissal for failure to state a claim under Rule 12(b)(6) s atisfies the plain text of § 1915(g) and therefo re will count as a strike.” Childs v. Miller , 713 F.3d 1262, 1266 (10th Cir. 2013). Fur ther, “[i]n this circuit, it is immaterial to the strikes analysis [whether] the dismissa l was without prejudice,” as opp osed to with prejudice. Id. Finally, “[o]ur precedent holds t hat the dismissal of a civil r ights suit for damages based on prematurity under Heck is for failure to state a claim.” Smith , 636 F.3d at 1312. The previous claims Mr. Lomax file d while incarcerated were dis missed as barred by Heck or for failure to state a clai m. And, contrary to Mr. Lomax’s argument, the fact that two of th e dismissals were without prej udice is immaterial. Thus, the district court co rrectly concluded the two Hoffman dismissals and the
Lander dismissal all count as strikes. 2

2 The Lander dismissal does not state whether it was dismissed with or with out prejudice. Unless otherwise stat ed, dismissals under Rule 12(b) (6) are with prejudice.6 B. Imminent Danger of Serious Physical Injury The exception to the prohibition on a prisoner with three strik es proceeding in forma pauperis is for prisoners “under imminent danger of serious physical inj ury.” 28 U.S.C. § 1915(g). Before the district court, Mr. Lomax, in a n effort to satisfy the imminent danger exception, alleg ed a Limon Correctional Facilit y guard attacked him in the past, other guards at the facility do not like sex o ffenders, and he fears for his life. In evaluating Mr. Lomax’s immin ent danger allegations, we adopt the Second Circuit’s position that an inmate seeking the imminent danger e xception must show “a nexus between the imminent da nger a three-strikes prisoner a lleges to obtain [ in forma pauperis ] status and the legal claims asserted in hi s complaint.” Pettus v. Morgenthau , 554 F.3d 293, 297 (2d Cir. 2009) . To determine whether a nexu s exists, a court should consider “(1) whet her the imminent danger of ser ious physical injury that a three-stri kes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2 ) whether a favorable judicial outcome would redress that injury.” Id. at 298–99.

See Slocum v. Corp. Express U.S. Inc. , 446 F. App’x. 957, 960 (10th Cir. 2011) (“Rule 12(b)(6) dismissals, unl ess otherwise indicated, constit ute a dismissal with prejudice.”); see also Orr v. Clements , 688 F.3d 463, 465 (8t h Cir. 2012) (“Although there is a presumption that a d ismissal under Rule 12(b)(6) is a judgment on the merits made with prejudice, suc h a dismissal can be rendered wi thout prejudice if the court so specifies.” ( citation omitted)); Stern v. Gen. Elec. Co. , 924 F.2d 472, 477 n.7 (2d Cir. 1991); Carter v. Norfolk Cmty. Hosp. Ass’n, Inc. , 761 F.2d 970, 974 (4th Cir. 1985).7 Applying this framework, we concl ude a nexus is lacking. Mr. Lo max’s complaint raises claims relative to his removal from a sex offe nder treatment program while he was housed at the Centennial Correctional Facility . And the complaint alleges that five empl oyees at the Centennial Correct ional Facility, as well as a member of the Central Class ification Committee at Offender Services, were responsible for his removal from the sex offender treatment pro gram. But, Mr. Lomax’s allegations regarding imminent danger involved his fears of mistreatment by guards at the Limon Correctional Facility . This fear is not fairly traceable to the Fifth, Eighth , Ninth, and Fourteenth Amendment violations Mr. Lomax sought to advance thro ugh his complaint. And a favora ble judicial outcome will not redress any mistre atment at the hands of guard s at the Limon Correctional Facility as, accord ing to Mr. Lomax, “the only ben efit that a victory in this case will provide . . . is a ticket to get in the door of the parole board.” ROA at 10 (alterations in original) (quoting Leamer v. Fauver , 288 F.3d 532, 543 (3d Cir. 2002)). Thus, Mr. Lomax has not advanced sufficient allegations to qualify for the imminent danger exception to § 1915(g)’s prohibition on a three -strikes litigant proceeding in forma pauperis

. Even in the absence of the nexus requirement, Mr. Lomax has not alleged sufficient imminent physical da nger as that term is understood. To qualify for the exception, a plaintiff must advan ce allegations that “identify at least the general nature of the serious physical inj ury he asserts is imminent” a nd that “[v]ague and utterly conclusory asser tions are insufficient.” Hafed v. Fed. Bureau of Prisons , 6358 F.3d 1172, 1180 (10th Cir. 2011) (internal quotation marks omit ted); see Martin v. Shelton , 319 F.3d 1048, 1050 (8th Cir. 2003) (holding general assertio ns are insufficient “absent specific fa ct allegations of ongoing serio us physical injury, or of a pattern of misconduct eviden cing the likelihood of imminent p hysical injury”);
Abdul-Akbar v. McKelvie , 239 F.3d 307, 315 n.1 (3d Cir. 2001) (finding multiple generalized allegations of harass ment by prison guards insuffic ient to establish “a pattern of threats of serious phy sical injury that [is] ongoing .”). Finally, the allegation of imminent danger mu st be present “at the time [the prisoner] filed his complaint.” Hafed , 635 F.3d at 1179. Mr. Lomax’s assertions of immine nt physical danger are insuffic ient under this standard. Simply stating a guard attacked him in the past and s till works at the prison does not indicate any type of pa ttern of serious and ongoing ph ysical harm or otherwise evidence the likelihood of imminent danger. Accordingly, even if the nexus requirement did not apply, Mr. L omax has not sufficiently alleg ed imminent physical danger and does not qualify for th e exception as stated in 28 U .S.C. § 1915(g).
III. CONCLUSION Mr. Lomax’s challenge on appeal f ails due to his previous dismi ssals counting as strikes and his insufficient pleading of imminent physical d anger. We AFFIRM the district court’s judgment. We also DENY Mr. Lomax’s mo tion to proceed9 without prepayment of costs and fees, and Mr. Lomax is directed to pay the appellate filing fee in full. See Childs , 713 F.3d at 1267; Smith , 636 F.3d at 1315. Entered for the Court
Carolyn B. McHugh Circuit Judge