Day v. Maynard

200 F.3d 665

10th Cir.

2000

Check Treatment

Docket

Jason M. DAY, Plaintiff-Appellant, v. Gary D. MAYNARD, Director of the Oklahoma Department of Corrections; James Saffel, Regional Director for the Oklahoma Department of Corrections; Dan Reynolds, Warden at the Oklahoma State Penitentiary; Ken Klinger, Deputy Warden of Administrative Operations at the Oklahoma State Penitentiary; John East, Unit Coordinator at the Oklahoma State Penitentiary; Eddie Morgan, Unit Manager at the Oklahoma State Penitentiary; Emma L. Ware, Case Manager at the Oklahoma State Penitentiary; J. Jiles, Correctional Officer; Moody, Sergeant, Correctional Officer at the Oklahoma State Penitentiary and assigned to the H-Unit; Cooley, Correctional Officer at the Oklahoma State Penitentiary and assigned to the Northwest wing of the H-Unit; Dr. Milton Vogt, Head Medical Doctor at the Oklahoma State Penitentiary; Danny Nace, Head of Security of the Oklahoma State Penitentiary; Gayle Krien, Inter-State Compact Service Coordinator, Defendants--Appellees.

No. 99-7059.

United States Court of Appeals, Tenth Circuit.

Dec. 20, 1999.

Before BALDOCK, PORFILIO, and BRORBY, Circuit Judges.

relationship between the Native Hawaiians and the federal government, making clear that the purpose of the statute is to benefit Native Hawaiians. It states, “Congress does possess the authority, pursuant to the Federal-Native Hawaiian relationship to enact legislation that is rationally related to the purposes of the trust relationship-to legislate for the benefit of Native Hawaiians.” S.Rep. No. 100-580 at 26, reprinted in 1988 U.S.C.C.A.N. 3864, 3889. But, as noted above, an express intent to benefit a particular group is not a sufficient basis to infer the creation of a private cause of action for an individual member of that group. Although there are several references in the Senate Report to judicial proceedings, they do not provide support for an implied private right of action. Indeed, one reference to judicial proceedings suggests quite the opposite, stating that “the United States is the only party with specific standing to sue in federal courts to enforce the provisions of the trust.” Id. at 3900. The Senate Report also discusses the administrative procedures by which the Secretary of Health and Human Services may ensure adequate performance by those entities receiving grants, id. at 3902, but there is no mention of private judicial remedies to ensure that same performance.

Finally, the legislative scheme of both acts consists of federal assistance programs for Native Hawaiians, funded through grants administered by the Secretary of Education and the Secretary of Health and Human Services. The federal program delegates to state and private organizations the implementation of the benefits authorized under the statutes. We find no support in these schemes for the idea that Congress intended private rights of action against any recipients of the federal funds under these statutes.

We agree with the district court and conclude from the foregoing that the second and third factors of the Cort test do not support finding implied private rights of action under these statutes. The district court did not reach the fourth factor, which considers whether the cause of action in question is traditionally handled under state law. This factor also supports a denial of a private right of action, for plaintiff‘s allegations primarily concern the misuse of federal funds under state trust law. Indeed, the Bishop Trust is currently involved in numerous ongoing state court proceedings brought under state law involving allegations similar to those in this suit.

Conclusion

The two statutes at issue here, the Native Hawaiian Education Act and the Native Hawaiian Health Care Act, are not enforceable by private causes of action. Applying the factors enunciated in Cort, we conclude that Congress did not intend to confer such rights on plaintiffs.

We therefore AFFIRM the judgment of the district court.

ORDER

PER CURIAM.

On November 3, 1999, this court issued an order notifying Mr. Day that he had three strikes pursuant to 28 U.S.C. § 1915(g). We ordered Mr. Day either to show cause why his appeal should not be dismissed for failure to prepay the entire filing fee as required by § 1915(g), or to show that the provisions of the Prison Litigation Reform Act do not apply to this proceeding. Having now considered the arguments raised in Mr. Day‘s response to the court‘s order to show cause, and also those raised in his motion to proceed in forma pauperis, we conclude that § 1915(g) applies and that he is responsible for full payment of the filing fee.

In his motion to proceed in forma pauperis, Mr. Day argued that (1) none of the matters on which the district court relied in determining that he had three strikes was dismissed as frivolous or malicious; and (2) all of the cited cases were dismissed without prejudice and therefore did not count as strikes for purposes of § 1915(g). The court is not persuaded by these arguments.

The United States District Court for the District of Connecticut dismissed Day v. Keefe Supply Co. et al., No. 95-CV-2772 (D.Conn. Sept. 10, 1996), because it “lacked an arguable basis in law.” This is the equivalent of a dismissal for frivolousness. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The other two strikes were for cases dismissed for failure to state a claim upon which relief may be granted, which is also grounds for a strike. See 28 U.S.C. § 1915(g). Moreover, a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim. See, e.g., Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.), cert. dismissed, 524 U.S. 978, 119 S.Ct. 27, 141 L.Ed.2d 787 (1998), petition for cert. filed (U.S. Sept. 21, 1998) (No. 98-6127); Patton v. Jefferson Correctional Ctr., 136 F.3d 458, 463-64 (5th Cir.1998).¹

We turn next to the arguments raised in Mr. Day‘s response to the order to show cause. He asserts that this court should not have counted Day v. Meachum, No. 93-CV-2420 (D.Conn. Dec. 2, 1993) as a strike, because the order dismissing that case was filed before the enactment of PLRA. This court rejected a similar argument in Green v. Nottingham, 90 F.3d 415, 418-20 (10th Cir.1996) (holding that § 1915(g) merely announced a new procedural rule and that this court may therefore count prisoner suits dismissed prior to the statute‘s enactment as strikes). Mr. Day‘s argument lacks merit.

Finally, Mr. Day argues that he falls under an exception to the three strikes provision for prisoners “under imminent danger of serious physical injury.” § 1915(g). He claims that his life is in danger in the Connecticut prison where he now resides. This allegation is not sufficient to obtain relief under the “imminent danger” exception, however, since his complaint targets Oklahoma defendants who he fails to show have any control over his current conditions of confinement. Cf. Ashley v. Dilworth, 147 F.3d 715, 718 (8th Cir.1998) (Beam, J., dissenting) (“[B]y its plain language, [§ 1915(g)] limits the relief we can offer to such a prisoner to prospective relief for the actions that have caused the immediate risk of harm.“).

We conclude that the provisions of the Prison Litigation Reform Act apply to this proceeding, that Mr. Day has three strikes for purposes of 28 U.S.C. § 1915(g), and that he is responsible for full prepayment of the entire filing fee. Accordingly, Mr. Day‘s motion to proceed in forma pauperis is DENIED. If Mr. Day fails to pay the full filing fee for this appeal to the district court within twenty days of the date this order is entered, his appeal will be DISMISSED.

The holding that cases dismissed without prejudice counted as strikes against Mr. Day is a narrow one. We do not consider, for example, whether a case dismissed without prejudice, then refiled and dismissed a second time would count as two separate strikes. That question is not presented in this case.

Notes

To the extent this court‘s unpublished decision in is to the contrary, it has no precedential value and we decline to follow it. See 10th Cir. R. 36.3(A).