UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

KENDALL TRENT BROWN, Plaintiff-Appellant,

v. GLEN KOCHANOWSKI; (FNU) NALLS; RANDALL MAIN; TINA MILLER; (FNU) AUGUSTINE; DEBORAH PRICE, Defendants-Appellees. No. 12-3257 (D.C. No. 5:07-CV-03062-SAC) (D. Kan.)

ORDER AND JUDGMENT *

Before O’BRIEN , McKAY , and BALDOCK , Circuit Judges.
Plaintiff-appellant Kendall Trent Brown is a prisoner of the State of Kansas appearing pro se. He is currently housed at Hutchinson Correctional Facility in Hutchinson, Kansas. Defenda nts-appellees include Sher iff Kochanowski of Saline County, Kansas, and several employees at the Saline County Detention Center.

* After examining the briefs and appellate record, this pane l 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### March 14, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Brown appeals from the district court’s gr ant of summary judgme nt to defendants on his federal claims that they mishandled his legal mail in violation of his First Amendment rights and his state-law claim that they fraudulently charged him postal fees on mail that was not sent. We dismiss the appeal as frivolous under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2) (“Notwithst anding any filing fee . . . that may have been paid, the court shall di smiss the case at a ny time if the cour t determines that— . . . (B) the . . . appeal—(i) is frivolous . . . .”). We also assess a strike under PLRA, 28 U.S.C. § 1915(g). And as explained below, Brown accumulated two strikes under PLRA in 2008. As a resu lt, Brown has now struck out from proceeding in forma pauperis (ifp) in civil actions or appeals in federal court in the future unless he can make credible allegations that he is in imminent danger of serious physical injury. I. Background Brown filed this civil ri ghts suit under 42 U.S.C. § 1983, seeking damages for alleged violations of his constitutional rights by the Sa line County Jail, Saline County Sheriff Glen Kochanowski, and Office r Nalls, the “correction[s] mail lady,” R., Vol. I, at 23. He alleged that th ese defendants mishandled his legal mail and engaged in postal fraud in and around November 2006, while he was housed at the Saline County Detention Center. The distri ct court ordered Brown to show cause why his complaint should not be dismissed fo r failure to state a claim. Brown filed an amended complaint, which again named Sheriff Kochanowski a nd Officer Nalls as- 3 - defendants, but which no longe r named the Saline County Jail . He also filed several supplements to his initial and amended complaints. The district court reviewed Brown’s co mplaint, as supplemented and amended, and dismissed it prior to service for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). Brown appealed. We affi rmed the dismissal in part, but we held that Brown’s allegations that defendants had refused to process his outgoing mail, had monitored his outgoing mail in a di scriminatory manner, had monitored his outgoing mail as punishment or disciplin e, and had prohibite d him from taking his mail with him to Larned Stat e Hospital, stated claims for a violation of his First and Fourteenth Amendment rights. Brown v. Saline Cnty. Jail , 303 F. App’x 678, 682-84 (10th Cir. 2008). We did not consider Brown’s state- law claim for postal fraud, which had not yet been addre ssed by the district court. Id. at 684. We remanded the case for additional proceedings. Id. at 685. On remand, Brown moved to amend hi s complaint to add Captain Augustine, Program Director Tina Miller, and Pod Offi cers Main and Price as defendants. The district court granted the motion, and Brown filed a second amended complaint, which was served on all of the defendants. R., Vol. I, at 233. (The court denied Brown’s motion to file a third amended co mplaint because he sought to add new claims that were not based on the same co re operative facts and were time-barred.) In due course, defendants moved for summar y judgment under Fed. R. Civ. P. 56(a), arguing that the evidence showed that Brow n’s mail was sent, that his allegations- 4 - were speculative, that he ha d failed to exhaust his admi nistrative remedies, that his constitutional rights were not violated, and that he had no proof of fraud. Brown filed a response in opposition a nd memorandum in support. The district court granted summary judgment to defendants in a thorough, thirty-eight page Memorandum and Order. R., Vol. II, at 723-60. The court reviewed the legal standards to be applied under Rule 56. Id. at 731-32. The court also reviewed its duties toward Brown, as a pro se litigant. Id. at 732-33. The court reviewed the elements Brown was required to prove for his First Amendment claims related to defendants’ handling of his mail, id. at 743-45, and the elements he was required to prove for his state-law fraud claim, id. at 757. But the court pointed out that Brown had “not file[d] any affidavi ts or submit[ted] a ny other admissible evidence to refute th e evidence filed by the defendants in support of their motion for summary judgment.” Id. at 733-34. The court consider ed the evidentiary value of Brown’s deposition testimony. See id. at 739 n.2, 740-41, 743, 745-46, 748-49, 752-59. The district court rejected defendan ts’ argument that Brown had not shown a material factual dispute as to whether he had exhausted his administrative remedies. Id. at 735-41. But the district court gr anted summary judgment to all of the defendants in their official capacities because Brown’s re quest for monetary relief was barred by their Eleven th Amendment immunity. Id. at 741 n.3. The court also granted summary judgment to Officer Main in his individual capacity because Brown- 5 - conceded in his deposition and his summar y judgment pleadings that he had not alleged, and had no proof to s upport, any wrongdoing by Main. Id. at 743. The court also granted summary judgment to Sheriff Kochanowski, Tina Miller, and Captain Augustine because Brown had “c onceded he lack[ed] a fact ual basis for alleging their individual responsibility on [his] claims.” Id. at 754. And the court granted summary judgment to Officer Price because Brown made only a conclusory assertion that she had mishandled one letter and fa iled to provide any specific factual support for his claim against her. Id. at 754-55. The district court otherwise explaine d why Brown’s scant evidence that the remaining defendants mishandled his mail was “lit tle more than speculation and bald assertions,” id. at 746, was “too speculative, ar gumentative and conclusory for a rational fact finder to find in his favor,” id. at 748, was “only his suspicions, speculation and bald assertions,” Id. at 749-50, was lacking “any specific arguments or proof,” id. at 752, was “not base d on personal knowledge,” id. at 752-53, was “inadmissible hearsay . . . [or] hi s own opinion and naked speculation,” id. at 753, and did not constitute a “mean ingful response to any of the defendants’ arguments,” id. at 756. The district court also granted su mmary judgment to defendants on Brown’s state-law fraud claim. Id. at 756-59. The court re viewed Brown’s deposition testimony interpreting his inmate account summary and why he thought it showed fraudulent charges. Id. at 758-59. The court concluded that Brown- 6 - presume[d] there [we]re fraudul ent activities behind the voided transactions without offering any pr oof or reasonable inferences to support his naked conclu sions. It is nothing but conjecture for the plaintiff to think that the voided tr ansactions mean his mail was never sent, or that his account was never credited for the voided transactions, or that his account was assessed pos tage charges for mail which was never sent. Id. at 759. Brown appeals. II. Issues on Appeal and Discussion “We review the grant of summary judgment de novo applying the same standard as the district court . . . .” Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Summary j udgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) . “In applying this standard, we view the factual record and draw all reasonable infe rences therefrom most favorably to the nonmovant.” Adler , 144 F.3d at 670 (citing, inter alia , Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986)). Because Brown appears pro se, we hold his pleadings “to less stringent sta ndards than formal pleadings drafted by lawyers.” Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam). At summary judgment, “[a]n issue is ‘g enuine’ if there is sufficient evidence on each side so that a rational trier of f act could resolve the issue either way.” Adler , 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). “An issue of fact is ‘materia l’ if under the substantive law it is essential to the proper disposition of the claim.” Id. (citing Liberty Lobby , 477 U.S. at 248), “A motion for- 7 - summary judgment that is supported by affi davits or other mate rials provided under oath gives the adverse party notice that summary judgment is possible; the adverse party must respond with affi davits or other evidence to show a genuine issue of material fact.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Ci r. 1991). “[T]he facts must be identified by refere nce to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler , 144 F.3d at 671. The district court held that Brown fa iled to produce any specific, admissible evidence in support of his claims, but reli ed on speculation, opini on, bald assertions, conjecture, and hearsay. Brown makes numerous arguments on appeal, but they are conclusory. To summarize them, he argue s that the defendants committed perjury, that he did not have enough time to re spond to their summary judgment motion or enough finances to produce witness testimony, that th e district court failed to consider the full record of this case. and that counsel should have been appointed for him. But he does not explai n or describe any evidence supporting any of his claims against any of the defendants, let alone point to where th at evidence may be found in the record. We conclude that this appeal is fri volous because Brown fails to point to any specific, admissible evidence, or even explain what speci fic, admissible evidence he presented, to withstand defe ndants’ motion for summary j udgment. His appeal thus “lack[s] an arguable basis in law,” which “is the equiva lent of . . . frivolous[].” Day v. Maynard , 200 F.3d 665, 667 (10th Cir. 1999) ( per curiam) (citing Neitzke v.- 8 - Williams , 490 U.S. 319, 325 (1989) for the definition of legal frivolousness); cf. White v. Gen. Motors Corp., Inc. , 908 F.2d 669, 675 (10th Cir. 1990) (holding that a counseled plaintiff’s appeal challenging district court’s grant of summary judgment to defendant was “a clear a nd obvious loser” due to that plaintiff’s “inability to produce any evidence”). We have long held that “[a] pro se lit igant . . . must follow the same rules of procedure that govern other litigants.” Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992). Brown’s conclusory ar guments on appeal do not relate to his evidentiary burden under Rule 56(a), and hi s arguments are utte rly insufficient to overturn the district court’s grant of summ ary judgment to defenda nts. He is not excused based on his pro se status from poi nting us to his evidence, and he failed even to explain or describe any eviden ce in the record supporting his claims. Cf. Hall , 935 F.2d at 1110 (“[A] pro se plain tiff requires no special legal training to recount the facts surrounding hi s alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief ca n be granted.”). III. Strikes under PLRA, 28 U.S.C. § 1915(g) “Congress enacted the Pr ison Litigation Reform Act of 1995 (PLRA) . . . in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts. . . .” Woodford v. Ngo , 548 U.S. 81, 84 (2006). “The PLRA contains a variety of provisions designed to bring th is litigation under control.” Id. One of these provisions is 28 U.S.C. § 1915(g), which Congress adde d “to revoke, with limited- 9 - exception, in forma pauperis privileges for any prisoner w ho has filed three or more lawsuits that fail to state a claim, or are malicious or frivolous.” Skinner v. Switzer , 131 S. Ct. 1289, 12 99-1300 (2011). “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 § 1915(g)) (alter ation in original). “[T]he ‘three strikes’ provision of the ifp statute a pplicable to indigent prisoners[ ] requires so-called ‘frequent filer’ prisone rs to prepay the entire filing fee before federal courts may consider their civil actions and appeals.” Id. (alteration in original) (internal quotation marks omitted). Th e only exception to this rule is when “the prisoner is under imminent danger of serious physical injury.” § 1915(g). To meet this exception, “a prisoner who has accrued three strikes must make specific, credible allegations of imminent danger.” Hafed , 635 F.3d at 1176 (alteration omitted) (internal quotation ma rks omitted). In 2007, Brown filed three civil right s cases in federal court. We have reviewed them and conclude that Brown had two clear strikes under Tenth Circuit law before he filed the current appeal in this court. Brown’s first strike results from the dismissal in Brown v. Kochanowski , D.C. No. 5:2007-cv-03264 (D. Kan.), a civil rights case he filed on October 17, 2007,- 10 - while he was a prisoner of the State of Kans as. On May 23, 2008, the district court dismissed the complaint prior to service fo r failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Kochanowski , D.C. No. 5:2007-cv-03264, Doc. 8. A separate judgment was also entered on May 23, 2008. Id. , Doc. 9. Brown did not appeal, so this dismissal ripened to be c ounted as a strike when his ti me to file a direct appeal expired. See Hafed , 635 F.3d at 1176. He named only state defendants in this suit, so it ripened to be counted against his eligibility to br ing other civil actions or appeals ifp on June 23, 2008. See Fed. R. App. P. 4(a)(1)(A). Brown’s second strike resu lts from the dismissal in Brown v. Saline County Board of County Commissioners , D.C. No. 5:2007-cv-03265 (D. Kan.), a second civil rights suit he filed on Oct ober 17, 2007, while he was a prisoner of the State of Kansas. On May 23, 2008, th e district court dismissed th e complaint prior to service for failure to state a claim unde r 28 U.S.C. § 1915(e)(2)(B)(ii). Saline Cnty. Bd. of Cnty. Comm’rs , D.C. No. 5:2007-cv-032 65, Doc. 6, at 2. A separate judgment was also entered on May 23, 2008. Id. , Doc. 7. Brown did not appeal. But because he named the Post Office as a defendant in th is suit, the strike ri pened to be counted against his eligibility to br ing other civil actions or a ppeals ifp on July 22, 2008.
See Fed. R. App. P. 4(a)(1)(B). Brown’s third strike ar ises from our dismissal of his current appeal as frivolous. It will ripen to be counted against his eligibility to bring other civil actions or appeals ifp in federal court when the a ppellate process has been completed, either- 11 - by the Supreme Court’s denial or dismissal of a petition for certior ari, if Brown files one, or when the time to fi le a petition for certiorari ha s expired, if he does not. See Hafed , 635 F.3d at 1175; see also S. Ct. R. 13.1 (provi ding ninety days from entry of court of appeals’ judgmen t to file petition for certiorari). The appeal is dismissed.

Entered for the Court
Bobby R. Baldock Circuit Judge