UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JON CHAPMAN, 

 Plaintiff - Appellant, 

v. 

WYOMING DEPARTMENT OF 

CORRECTIONS; WYOMING STATE 

PRISON; CORIZON HEALTH INC.; 

WYOMING DEPARMENT OF 

CORRECTIONS MEDICAL STAFF, 

NURSES AND DOCTORS; WYOMING 

DEPARTMENT OF CORRECTIONS 

MEDICAL DEPARTMENT; ROBERT 

O. LAMPERT, Director, Wyoming 

Department of Corrections, in his official 

and individual capacity; EDDIE 

WILSON, Warden, Wyoming State 

Prison, in his individual and official 

capacity; ANNE CYBULSKISANDLIAN, Health Services Program 

Manager, in her individual and official 

capacity; DR. KURT JOHNSON, Health 

Services Regional Manager for PHS, in 

his individual and official capacity; 

DR. MURRAY YOUNG, Health Services 

Physician, in his individual and official 

capacity; WYOMING MEDIUM 

CORRECTIONAL INSTITUTION, 

 Defendants - Appellees. 

No. 14-8045 

(D.C. No. 1:13-CV-00226-ABJ) 

(D. Wyo.)

 

ORDER AND JUDGMENT*

 

*

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

unanimously that oral argument would not materially assist the determination of this 

(continued) 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 25, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Before HARTZ, McKAY, and McHUGH, Circuit Judges. 

 

 Jon Chapman brought this pro se prisoner civil rights complaint against the 

defendants under 42 U.S.C. § 1983, alleging denial of medical care, negligence, and 

sexual discrimination. The district court dismissed the complaint for failure to state a 

claim. It further found that Mr. Chapman had three prior “strikes” and was therefore 

barred from proceeding in forma pauperis (IFP) in future civil filings in federal court 

under 28 U.S.C. § 1915(g). Mr. Chapman appeals from both the dismissal and the 

three-strike ruling.1

 We affirm the dismissal. We also affirm the three-strike 

restriction under § 1915(g), but only prospectively. The three-strike restriction 

applies as the result of our affirmance in this case. 

RULE 12(b)(6) DISMISSAL

 The district court determined that Mr. Chapman’s complaint failed to state a 

claim against each of the defendants. It failed to state a claim against Drs. Murray 

Young and Kurt Johnson, because Mr. Chapman failed to allege facts that showed 

they personally participated in any deprivation of his constitutional rights, or that 

 

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

 We previously consolidated Mr. Chapman’s two separate notices of appeal by 

opening this single appeal, in which we instructed him to file a single opening brief. 

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they were deliberately indifferent to his serious medical needs. The complaint failed 

to state a claim against Corizon Health Inc. (“Corizon”) because it did not allege that 

Corizon had adopted a policy that caused a constitutional tort, and because vicarious 

liability is unavailable under § 1983. It failed to state a claim against the Wyoming 

state defendants in their individual capacities because it failed to allege facts that 

showed personal involvement by those defendants. Mr. Chapman’s official-capacity 

claims against the individual Wyoming state defendants, as well as his claims against 

the Wyoming state entities, were barred by Eleventh Amendment immunity. Finally, 

the complaint failed to state a claim under, or to satisfy the procedural prerequisites 

of, the Wyoming Governmental Claims Act with regard to any state-law claims 

against the Wyoming state defendants. 

 We construe Mr. Chapman’s pro se brief liberally. Adams ex rel. D.J.W. v. 

Astrue, 659 F.3d 1297, 1301 n.1 (10th Cir. 2011). We review the district court’s 

dismissal for failure to state a claim de novo. Albers v. Bd. of Cnty. Comm’rs, 

771 F.3d 697, 700 (10th Cir. 2014). “To survive a motion to dismiss, a plaintiff must 

plead facts sufficient to state a claim to relief that is plausible on its face.” Id.

(internal quotation marks omitted). We also review de novo a decision to dismiss a 

claim under the Eleventh Amendment. Schrier v. Univ. of Colo., 427 F.3d 1253, 

1268 (10th Cir. 2005). 

 On appeal, Mr. Chapman argues that (1) his complaint stated an Eighth 

Amendment claim for deliberate indifference to his serious medical needs; (2) the 

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Wyoming Department of Corrections failed to follow its own rules; (3) he should be 

given the opportunity to amend his pro se complaint; (4) the defendants deprived him 

of a liberty interest protected by the Fourteenth Amendment; (5) the defendants 

retaliated against him; (6) he adequately exhausted his administrative remedies; 

(7) the defendants are not entitled to Eleventh Amendment immunity, sovereign 

immunity, or qualified immunity; (8) he stated valid claims against the defendants in 

their individual capacities; and (9) he stated a claim for damages recoverable under 

federal or Wyoming law. Upon consideration of the briefs, the record, and the 

applicable law in light of the review standards outlined above, Mr. Chapman has 

failed to establish any reversible error by the district court. Accordingly, we affirm 

the dismissal of his complaint. 

“THREE STRIKES” UNDER 28 U.S.C. § 1915(g)

 The “three strikes” provision of the Prison Litigation Reform Act (PLRA) is 

designed “to revoke, with limited exception, in forma pauperis privileges for any 

prisoner who has filed three or more lawsuits that fail to state a claim, or are 

malicious or frivolous.” Skinner v. Switzer, 562 U.S. 521, ___, 131 S. Ct. 1289, 

1299-1300 (2011). It provides that 

[i]n no event shall a prisoner bring a civil action or appeal a judgment in 

a civil action or proceeding under this section if the prisoner has, on 3 

or more prior occasions, while incarcerated or detained in any facility, 

brought an action or appeal in a court of the United States that was 

dismissed on the grounds that it is 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. 

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28 U.S.C. § 1915(g). 

 The district court found that Mr. Chapman had brought such an action on three 

prior occasions and was therefore not entitled to proceed IFP in future civil filings. 

The district court identified three prior dismissals that it considered prior occasions 

or “strikes”: Chapman v. Lampert, No. 12-CV-064-ABJ (D. Wyo. May 2, 2012); 

Chapman v. Lampert, No. 12-CV-276-SWS (D. Wyo. Sept. 10, 2013); and Chapman 

v. Wyo. Dep’t of Corrs., No. 13-CV-136-NDF (D. Wyo. May 13, 2014). 

 We agree that Nos. 12-CV-064-ABJ and 13-CV-136-NDF count as strikes. 

The district court dismissed No. 12-CV-064-ABJ as frivolous and 

No. 13-CV-136-NDF for failure to state a claim. 

The district court disposed of No. 12-CV-276-SWS, however, by granting 

summary judgment in favor of the defendants. Mr. Chapman appealed, and we 

affirmed the order granting summary judgment and the denial of injunctive relief. 

Chapman v. Lampert, 555 F. App’x 758, 763 (10th Cir. 2014). Because the district 

court granted summary judgment and did not dismiss the action on one of the 

grounds identified in § 1915(g), its disposition did not count as a strike. 

See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 

1999) (“Under the plain language of the statute, only a dismissal may count as a 

strike . . . .”). 

Thus, at the time of the district court’s decision in this case, Mr. Chapman had 

two strikes. But in that decision, the court dismissed this case for failure to state a 

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claim. Because we have now affirmed that dismissal, it counts as a third strike under 

the PLRA. See Childs v. Miller, 713 F.3d 1262, 1266 (10th Cir. 2013) (holding 

affirmance of Rule 12(b)(6) dismissal for failure to state claim constituted third strike 

under PLRA). Thus, Mr. Chapman now has three strikes. “This third strike will 

ripen to be counted against [his] eligibility to proceed ifp in other civil actions or 

appeals in federal court when the appellate process has been completed, either by the 

Supreme Court’s denial or dismissal of a petition for certiorari, if [he] files one, or 

when the time to file a petition for certiorari has expired, if he does not.” Id. 

CONCLUSION

 The judgment of the district court dismissing Mr. Chapman’s complaint is 

affirmed. We grant his motion to proceed IFP in this appeal, and remind him that he 

is obligated to continue making partial payments until the filing fee is paid in full. 

All other pending motions are denied. Mr. Chapman now has three strikes, and is 

prohibited, pursuant to the PLRA, from proceeding IFP in any future civil filing 

unless he can affirmatively show that he is “under imminent danger of serious 

physical injury.” 28 U.S.C. § 1915(g). 

 Entered for the Court 

 Monroe G. McKay 

 Circuit Judge 

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