UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

STEPHEN CRAIG BURNETT,

 Plaintiff - Appellant,

v.

KATHY MILLER; RAYMOND 

LARIMER; NANCY COLPETZER; 

MARK REIHELD, 

Defendants – Appellees.

No. 12-7066

(D.C. No. 6:12-CV-00158-RAW-SPS)

(E.D. Okla.) 

ORDER AND JUDGMENT*

Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges. 

 

Stephen Burnett, an Oklahoma state prisoner appearing pro se,1

 seeks to appeal the 

district court’s dismissal of his 28 U.S.C. § 1915(a) motion to proceed in forma pauperis 

(“ifp”) in a civil rights action filed against prison officials regarding his medical care. We 

 

* After examining Appellant=s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 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 Mr. Burnett is proceeding pro se, we construe his pleadings liberally. 

United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). “[T]his rule of liberal 

construction stops, however, at the point at which we begin to serve as his advocate.” Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 15, 2013

Elisabeth A. Shumaker 

Clerk of Court
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conclude that we lack jurisdiction to review the ifp denial and dismiss this appeal. 

The district court denied leave to proceed ifp on the ground that Mr. Burnett had 

accumulated three “strikes” under 28 U.S.C. § 1915(g). This provision strips prisoners of 

the right to proceed ifp if the prisoner has previously filed three or more actions while 

incarcerated that were dismissed as “frivolous, malicious, or [for failure to] state a claim 

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

serious physical injury.” 28 U.S.C. § 1915(g). Mr. Burnett appeals, challenging whether 

the cases cited by the district court were truly strikes under § 1915(g). 

Title 28 U.S.C. § 1291 grants this court jurisdiction only over final decisions of a 

district court. “A final decision is typically one by which a district court disassociates 

itself from a case.” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 604-05 (2009) 

(quotations omitted). Although the denial of a motion to proceed ifp is not a final 

decision in the traditional sense, it is often appealable as a collateral order under the 

Cohen doctrine. Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310 (10th Cir. 2005); see 

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). Cohen held that 

appellate jurisdiction is appropriate for collateral rulings that are final in a practical, if not 

a technical, sense. 337 U.S. at 545-46. 

The Cohen collateral order doctrine applies in only a “small class” of cases. Id. at 

546. The doctrine “must never be allowed to swallow the general rule that a party is 

entitled to a single appeal, to be deferred until final judgment has been entered.” 

Mohawk, 130 S. Ct. at 605 (quotations omitted). For an appellate court to review a 
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collateral order under Cohen, “the challenged order must constitute a complete, formal, 

and in the trial court, final rejection of a claimed right where denial of immediate review 

would render impossible any review whatsoever.” Firestone Tire & Rubber Co. v. 

Risjord, 449 U.S. 368, 376 (1981) (citations omitted) (quotations omitted). 

In Lister, this court explained that most denials of ifp motions fall under Cohen 

because “[i]f a truly indigent claimant is not granted [ifp] status, [he] is barred from 

proceeding at all in district court.” 408 F.3d at 1311. But the present case does not meet 

this description. The record reflects that the $350 district court filing fee has now been 

paid in full and that Mr. Burnett’s civil rights action is proceeding in district court. The 

denial of the ifp motion has therefore not “barred [Mr. Burnett] from proceeding at all in 

district court.” See id. As such, it does not fall under the Cohen doctrine, and we lack 

jurisdiction to review it as a collateral order. 

We therefore dismiss this appeal for want of jurisdiction. Mr. Burnett’s request to 

proceed ifp on appeal is denied, and the remaining balance of the filing fee is due 

immediately, payable to the District Court. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge