UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SHAWN LA'VELLE ROLLINS, 

 Plaintiff - Appellant, 

v. 

SUSAN FISCH; GREGORY 

HOLLOWAY, 

 Defendants - Appellees. 

No. 17-1029 

(D.C. No. 1:16-CV-02871-LTB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. 

_________________________________ 

Shawn La’Velle Rollins, a federal prisoner, appeals the dismissal of his claims 

for money damages against the public defender and the federal prosecutor in his case. 

Rollins brought his claims pro se1

 and had in forma pauperis (ifp) status at the district 

court. The district court dismissed his claims as legally frivolous under 28 U.S.C. 

 *

 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. 

1

 Because Rollins is proceeding in this action pro se, we construe his pleadings 

liberally, but we do not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 

n.1 (10th Cir. 2008). 

FILED 

United States Court of Appeals

Tenth Circuit 

May 25, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

§ 1915(e)(2)(B)(i). We affirm the dismissal, deny Rollins’s request for ifp status on 

appeal, and assess a second strike under 28 U.S.C. § 1915(g). 

 In his complaint and in his appeal, Rollins alleges a willful and purposeful 

conspiracy to deprive him of his civil rights during the criminal proceedings against 

him in state and federal court. More specifically, Rollins alleges that the federal 

prosecutor violated his rights by not informing Rollins about his pending federal 

indictment and that his public defender was constitutionally ineffective for not 

discovering that violation. Rollins brought his claims under the authority of Bivens v. 

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and 

42 U.S.C. § 1985(3) and seeks only money damages as relief. 

The district court rejected these claims for a host of deficiencies, most notably 

that such actions for money damages are barred if the underlying conviction or 

sentence has not been reversed, invalidated, expunged, or somehow called into 

question. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996). That obstacle 

made Rollins’s claim legally frivolous, and because Rollins is proceeding with ifp

status, 28 U.S.C. § 1915(e)(2)(B)(i) mandates that frivolous claims be dismissed sua 

sponte. The district court also certified that any appeal of the dismissal would not be 

in good faith and denied ifp status for appeal. Rollins moved for the district court to 

reconsider the dismissal, but the district court denied the motion for the same reasons 

as in its first order. Rollins appealed and seeks ifp status. 

A claim made with ifp status is frivolous if it is based on a meritless legal 

theory or baseless factual contentions. Schlicher v. Thomas, 111 F.3d 777, 779 
3 

(10th Cir. 1997). We generally review a § 1915 frivolousness dismissal for abuse of 

discretion, unless the dismissal turns on a legal issue and then we review de novo. 

Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).2

 Our review should examine 

whether “factual allegations could be remedied through more specific pleading” and 

therefore whether a “district court abused its discretion by dismissing the complaint 

with prejudice or without leave to amend.” Denton v. Hernandez, 504 U.S. 25, 34 

(1992). 

In his appellate brief, Rollins has done nothing to remove the legal obstacle 

that blocked his claims at the district court: his underlying conviction and sentence 

have not been called into question and so his money-damage claims, which 

necessarily imply that his conviction and sentence were invalid, are barred. See id.; 

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Instead, Rollins merely reiterates 

the purposefulness and the magnitude of the wrongs perpetrated against him. He can 

point to no prior invalidation of his conviction or sentence. Rollins previously tried to 

invalidate his sentence by bringing these same claims in a 28 U.S.C. § 2255 habeas 

 2

 Though, in two unpublished cases, we have also called that standard into 

doubt, seeing as the Supreme Court case that created it, Denton v. Hernandez, 504 

U.S. 25, 33-34 (1992), was based on an older version of the relevant statute. Lowe v. 

Sockey, 36 F. App’x 353, 356 (10th Cir. 2002) (unpublished); Basham v. Uphoff, No. 

98-8013, 1998 WL 847689, at *4 n.2 (Dec. 8, 1998) (unpublished). Denton found 

that § 1915 gave the district court discretion over ifp frivolousness dismissals, but the 

1995 Prison Litigation Reform Act (PLRA) removed the discretionary language from 

the statute. Lowe, 36 F. App’x at 356. The Sixth Circuit has found that the PLRA 

now compels a de novo review standard. McGore v. Wrigglesworth, 114 F.3d 601, 

604 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 

716 F.3d 944, 951 (6th Cir. 2013). We find that Rollins’s claims would be frivolous 

under either standard, and so do not decide the standard-of-review issue. 
4 

corpus petition, but we rejected them as time-barred (by denying Rollins a certificate 

of appealability for them). United States v. Rollins, No. 15-1459 (10th Cir. Mar. 3, 

2016) (unpublished). 

A finding in that § 2255 Order also blocks a final possible avenue for Rollins’s 

money-damage claims. We have held that if a petitioner has no available habeas 

corpus remedy “through no lack of diligence on his part,” the normal bar that a valid 

conviction and sentence presents to a 42 U.S.C. § 1983 or Bivens claim is removed. 

Cohen v. Longshore, 621 F.3d 1311, 1316-17 (10th Cir. 2010). But when we denied 

Rollins’s claims in his § 2255 petition, we noted in a discussion about equitable 

tolling that Rollins failed to show that he exercised due diligence in discovering the 

facts underlying his claims. Rollins, No. 15-1459 at 10-12. So the exception 

discussed in Cohen does not apply and the validity of his conviction and sentence 

bars Rollins’s claims for money damages. The claims, then, are based on a meritless 

legal theory and the district court was right to dismiss them as legally frivolous. 

 Rollins was initially granted leave to proceed with ifp status in this action, but then 

lost that status for appeal when the district court found his claims frivolous and certified 

that any appeal would not be in good faith. See 28 U.S.C. § 1915(a)(3). But even a party 

who has been certified as not appealing in good faith can request ifp status on appeal so 

long as he shows both a financial inability to pay and a reasoned, nonfrivolous argument, 

and follows the procedure mandated by Fed. R. App. P. 24(a)(5). Rolland v. Primesource 
5 

Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th Cir. 2007).3

 But we agree with the district 

court that Rollins has not shown the existence of a reasoned, nonfrivolous argument and 

so he cannot proceed on ifp status. 

 Finally, 28 U.S.C. § 1915(g) prohibits prisoners from bringing civil actions or 

appeals under ifp status if the prisoner has, on three or more occasions, brought an action 

or appeal that was dismissed because it was “frivolous, malicious, or fails to state a claim 

upon which relief may be granted, unless the prisoner is under imminent danger of 

serious physical injury.” For his claims at the district court, Rollins was assessed his first 

strike under § 1915(g). We now assess a second strike for this frivolous appeal. See 

Jennings v. Natrona Cty. 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.”), overruled on other grounds 

by Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). We urge Rollins to consider 

more carefully when to file lawsuits and appeals, so that if more meritorious 

circumstances ever arise for a civil suit in federal court, ifp status will not be 

 3

 “Upon its face, § 1915(a)(3) would appear to foreclose our consideration of 

[a motion to proceed IFP]; its mandatory language denies the availability of an 

appeal in forma pauperis upon the district court’s certification of a lack of good faith, 

and it provides no escape hatch of appellate review or reconsideration. Federal Rule 

of Appellate Procedure 24(a)(5), on the other hand, purports to expressly permit our 

consideration of [such] a motion . . . . The palpable conflict between these provisions 

is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact 

that its most recent reenactment postdates that of § 1915(a)(3).” Rolland, 497 F.3d 

at 1078. 
6 

automatically foreclosed for him. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge