White v. Lumpkin, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
RICKEY WHITE,

Plaintiff - Appellant,

v.

JUDGE GARY L. LUMPKIN; JUDGE
BILL BLAZE; HUGO CHOCTAW
COUNTY OFFICIALS,

Defendants - Appellees.

No. 20-7040
(D.C. No. 6:20-CV-00118-RAW-SPS)
(E.D. Okla.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
**

_________________________________
Petitioner-Appellant Rickey White, a state inmate appearing pro se, appeals
from the district court’s dismissal of his civil rights action seeking damages. 42
U.S.C. § 1983; White v. Lumpkin, No. CIV 20-118-RAW-SPS, 2020 WL 3511577
(E.D. Okla. June 29, 2020). Mr. White’s complaint alleges that he was unlawfully
convicted of first-degree murder and placed in custody due to an invalid state

*
This order and judgment is not binding precedent, except under the doctrines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.
**
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.
FILED
United States Court of Appeals
Tenth Circuit

November 18, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-7040 Document: 010110439678 Date Filed: 11/18/2020 Page: 1

2

warrant. Upon initial screening, the district court dismissed the action as frivolous
because Mr. White could not demonstrate that his conviction or sentence was invalid.
See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). We agree.
Prior to the district court’s dismissal, Mr. White had accrued two strikes for
filing frivolous claims pursuant to Prison Litigation Reform Act (PLRA). See 28
U.S.C. § 1915(g); White v. Choctaw Cty. Ct. Clerk, No. CIV-10-421-RAW (E.D.
Okla. Nov. 18, 2010); White v. Strubhar, No. CIV-02-378-S (E.D. Okla. July 24,
2003). Mr. White accrued a third strike from the district court’s decision dismissing
this action as frivolous, see White v. Lumpkin, No. CIV 20-118-RAW-SPS, 2020 WL
3511577 (E.D. Okla. June 29, 2020); 28 U.S.C. § 1915(g), however “a third dismissal
does not trigger the [PLRA] restriction when the third dismissal is the ruling being
appealed.” Dawson v. Coffman, 651 F. App’x 840, 842 n.2 (10th Cir. 2016)
(unpublished). Because we will dismiss this appeal as frivolous, he will have four
strikes. See Jennings v. Natrona Cnty. Det. Ctr., 175 F.3d 775, 780–81 (10th Cir.
1999), overruled on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015).
We DISMISS the appeal as frivolous and assess a strike, DENY IFP, and
remind Mr. White that he is responsible for paying the full amount of the filing fee.
Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge
Appellate Case: 20-7040 Document: 010110439678 Date Filed: 11/18/2020 Page: 2