Case: 18-2081 Document: 50 Page: 1 Filed: 02/19/2020
United States Court of Appeals
for the Federal Circuit
______________________
VICTOR C. FOURSTAR, JR.,
Plaintiff-Appellant
JUDY RAE REDBOY,
Plaintiff
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-2081
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-00405-EDK, Judge Elaine Kaplan.
______________________
Decided: February 19, 2020
______________________
VICTOR C. FOURSTAR, JR., Billings, MT, pro se.
P. DAVIS OLIVER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by
JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN
MISHA PREHEIM.
______________________
Case: 18-2081 Document: 50 Page: 2 Filed: 02/19/2020
2 FOURSTAR v. UNITED STATES
Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
NEWMAN, Circuit Judge.
Mr. Victor C. Fourstar, Jr., on March 15, 2018, while
incarcerated at the Federal Correctional Institution in
Florence, Colorado, filed a Tucker Act Complaint in the
United States Court of Federal Claims, accompanied by a
Motion for Leave to Proceed In Forma Pauperis. Complaint, Fourstar v. United States, No. 18-405-EDK (Fed. Cl.
Mar. 15, 2018), ECF No. 1 (“Complaint”); Motion for Leave
to Proceed In Forma Pauperis, Fourstar v. United States,
No. 18-405-EDK (Fed. Cl. Mar. 15, 2018), ECF No. 5. His
complaint asserts that the government is mismanaging
certain Indian properties and resources, and states the issue of his Tucker Act claim:
[T]he United States acting as trustee under color of
federal law in their official capacity did breach
their trust in connection with the United States
management of forested resources, road building
and rights of way, Indian funds and government
fees, and regulations promulgated under their
money-mandating statutes 25 U.S.C. §§ 406, 407 &
25 U.S.C. §§ 318a, 323–325; 25 U.S.C. §§ 162a, 413,
respectively.
Complaint at 3. The Court of Federal Claims denied his
motion to proceed in forma pauperis on the basis of 28
U.S.C. § 1915(g), which provides:
In 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,
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FOURSTAR v. UNITED STATES 3
unless the prisoner is under imminent danger of
serious physical injury.
This provision, enacted as part of the Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat.
1321 (1996), is called the “three-strikes rule.”
The Court of Federal Claims found that “Mr. Fourstar
[] is currently incarcerated, and has, on more than three
occasions while incarcerated, filed complaints or appeals in
a court of the United States that were dismissed as frivolous, malicious, or for failure to state a claim.” 1 Fed. Cl.
Order at 1 (internal citation omitted). The court also found
that “[t]he dangers that [Mr. Fourstar] alleges in his application [] lack supporting detail, imminence, and/or any connection to the claims in this lawsuit.” Id. at 2. The court
then required him to pay the filing fee, in the amount of
$400.
Id. at 3. When Mr. Fourstar did not pay the fee, the
court dismissed his complaint. Fed. Cl. Op. at 2. He appeals the denial of his motion to proceed in forma pauperis,
and dismissal of his complaint. Federal Circuit jurisdiction
is pursuant to
28 U.S.C. § 1295(a)(3).
Appeal to the Federal Circuit
On April 9, 2018, Mr. Fourstar was released from
prison. On June 8, 2018, Mr. Fourstar timely filed a Notice
of Appeal. On October 1, 2018, Mr. Fourstar filed a statement that he was arrested and detained on September 1,
2018. On January 31, 2019, Mr. Fourstar filed a motion to
proceed in forma pauperis in this court pursuant to 28
U.S.C. § 1915.
1 Fourstar v. United States, No. 18-00405-EDK (Fed.
Cl. Apr. 3, 2018) (“Fed. Cl. Order”); dismissal (Fed. Cl. May
9, 2018) (“Fed. Cl. Op.”); on reconsidn. No. 2018-2081 (Fed.
Cir. Feb. 26, 2019).
Case: 18-2081 Document: 50 Page: 4 Filed: 02/19/2020
4 FOURSTAR v. UNITED STATES
Because Mr. Fourstar was not a prisoner at the time of
filing his appeal, § 1915 is not applicable. See Millhouse v.
Heath, 866 F.3d 152, 157−58 (3d Cir. 2017) (“Under the
plain language of the PLRA, it is the filing of the notice of
appeal that ‘triggers’ the three strikes rule”); see also Harris v. City of New York,
607 F.3d 18, 21–22 (2d Cir. 2010)
(section 1915(g) requires prisoner status “at the moment
of” filing the civil action or appeal). We apply Federal Rule
of Appellate Procedure 3(a)(2):
(a) Filing the Notice of Appeal.
…
(2) An appellant’s failure to take any step other
than the timely filing of a notice of appeal does not
affect the validity of the appeal, but is ground only
for the court of appeals to act as it considers appropriate, including dismissing the appeal.
We deem it appropriate to accept this appeal for the purpose of reviewing the dismissal action of the Court of Federal Claims, and do not require payment of the filing fee.
Review of Action of the Court of Federal Claims
Courts of the United States have authority to grant
in forma pauperis status to litigants. Denton v. Hernandez,
504 U.S. 25, 33–34 (1992) (discussing an earlier form of the
PLRA). Denials of in forma pauperis status are reviewed
for abuse of discretion.
Id. (discussing frivolousness determination); Bryant v. United States,
618 F. App’x 683, 685
(Fed. Cir. 2015). Abuse of discretion may arise on an error
of law, clearly erroneous fact finding, or a clear error of
judgment. Qingdao Taifa Grp. Co. v. United States,
581
F.3d 1375, 1379 (Fed. Cir. 2009).
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FOURSTAR v. UNITED STATES 5
A
The Three Strikes Rule
Mr. Fourstar states that the Court of Federal Claims
improperly denied his request to proceed in forma pauperis. He states that he brought a meritorious Tucker Act
claim, and his claim was not “frivolous or malicious,” the
words of Section 1915(g). He also states that he meets the
statutory exception of being “under imminent danger of serious physical injury,” 28 U.S.C. § 1915(g).
The government recites several actions Mr. Fourstar
filed that were dismissed because they were either frivolous or failed to state a claim: Fourstar v. Outlaw, No.
1:07cv11, 2007 WL 2427996 (E.D. Tex. Aug. 22, 2007), appeal dismissed,
283 F. App’x 209 (5th Cir. 2008) (failure to
state a claim); Fourstar v. Martinez,
541 F. App’x 494
(Mem.) (5th Cir. 2013) (frivolous); and Fourstar v. Murlak,
No. CV 07-5892 (C.D. Cal. Sept. 3, 2009) (frivolous and failure to state a claim). In addition, the Court of Federal
Claims cited a wrongful arrest and imprisonment case
wherein it “prohibited [Mr. Fourstar] from filing any claim
in the United States Court of Federal Claims under Section
1915.” Fourstar v. United States,
122 Fed. Cl. 596, 599–
600, 600 n.7 (2015).
The Court of Federal Claims did not abuse its discretion when it held that the three-strikes rule was met by Mr.
Fourstar’s litigation history.
B
Imminent Danger of Serious Physical Injury
Mr. Fourstar states that the exception to the three-strikes rule applies to his action in the Court of Federal
Claims because he is “under imminent danger of serious
physical injury” due to the “on-going common scheme by
the defendant(s) to illegally construct the Keystone XL
Pipeline and that if the Keystone XL Pipeline breaks or
Case: 18-2081 Document: 50 Page: 6 Filed: 02/19/2020
6 FOURSTAR v. UNITED STATES
leaks it will poison [his] drinking water source [the Missouri River],” Fed. Cl. Order at 2 (internal quotation marks
omitted), and “leaked Canada tar-sands oil on the Standing
Rock Indian Reservation” from the Dakota Access Pipeline,
Fed. Cl. Op. at 1. He further states that, he is “under imminent danger of serious physical injury” because the medical staff at the detention facility in Florence, Colorado,
where he was detained, denied him knee and rotator cuff
surgery and dental care, causing severe pain and suffering;
exposed him to tuberculosis without proper screening and
treatment, causing shortness of breath and weight loss;
and denied him anxiety and depression medication. Fed.
Cl. Order at 2.
Mr. Fourstar’s Tucker Act Complaint concerns the government’s management of Indian properties and resources.
Rulings of regional circuits guide that Ҥ 1915(g) allows a
three-strikes litigant to proceed [in forma pauperis] only
when there exists an adequate nexus between the claims
he seeks to pursue and the imminent danger he alleges,”
and “requires that the prisoner’s complaint seek to redress
an imminent danger of serious physical injury and that
this danger must be fairly traceable to a violation of law
alleged in the complaint.” Pettus v. Morgenthau, 554 F.3d
293, 296, 297 (2d Cir. 2009). Additionally, “[a] plaintiff
must [] show that his complaint alleged facts from which a
court, informed by its judicial experience and common
sense, could draw the reasonable inference that [he] was
under an existing danger at the time he filed his complaint.” Vandiver v. Prison Health Servs., Inc.,
727 F.3d
580, 585 (6th Cir. 2013) (internal quotation marks omitted)
(third alteration in original). Precedent embodies the
premise that imminent physical injury and personal danger are the intended focus of the statutory exception to the
three-strikes rule.
Here, Mr. Fourstar states that he is “under imminent
danger of serious physical injury” because of the alleged illegal construction of the Keystone XL Pipeline and possible
Case: 18-2081 Document: 50 Page: 7 Filed: 02/19/2020
FOURSTAR v. UNITED STATES 7
poisoning if it breaks, and leakage of Canada tar-sands oil
on the Standing Rock Indian Reservation. The Court of
Federal Claims deemed this argument as too speculative
and attenuated to qualify as “imminent danger.” The court
stated that “Mr. Fourstar . . . is currently incarcerated in
Wolf Point, Montana. The Standing Rock Sioux Indian
Reservation straddles North and South Dakota and encompasses all of Sioux County in North [Dakota] and all of
Corson County, and small parcels in Ziebach and Perkins
Counties in South Dakota,” and “Mr. Fourstar does not explain how an alleged pipeline leak in another state is causing him imminent danger of serious physical injury.” Fed.
Cl. Op. at 2 (internal quotations marks omitted).
Mr. Fourstar’s further contention that he is “under the
imminent danger of physical injury” because the medical
staff at the detention center denied him surgical, dental,
and medical care, is unfounded. He shows no relation to
his Tucker Act assertions concerning management of Indian properties and resources. “Absent some nexus between a complaint’s claims and its allegation that a
plaintiff is under imminent danger of serious physical
harm, the injury-in-fact that Congress so carefully excepted from the general requirement that a three-strikes
litigant pay his filing fees could go unaddressed by the litigation—a result clearly contrary to the raison d'être of the
exception itself.” Pettus, 554 F.3d at 298.
The Court of Federal Claims reasonably determined
that Mr. Fourstar was not subject to the statutory exception to the three-strikes rule. Thus, the court did not abuse
its discretion in denying Mr. Fourstar’s request to proceed
in forma pauperis. We affirm the decision to dismiss Mr.
Fourstar’s complaint without prejudice, when he did not
pay the filing fee in the Court of Federal Claims.
AFFIRMED
No costs.
