Jenkins v. Colorado Mental, 10th Cir. (2000)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
MAR 30 2000
PATRICK FISHER
Clerk
ROBERT J. JENKINS,
Plaintiff-Appellant,
No. 99-1516
v.
D. Colo.
COLORADO MENTAL HEALTH

INSTITUTE AT PUEBLO,
COLORADO, ET AL., MR. ROBERT
HAWKINS, DR. HOFFMAN, DR.
POINTER, DR. JOHNSON, AND DR.
POUNDS,
(No. 99-Z-707)
Defendants-Appellees.
ORDER AND JUDGMENT
Before BALDOCK , HENRY , and LUCERO , Circuit Judges.
Robert J. Jenkins, an inmate at the Denver County, Colorado Jail appeals

pro se the district courts dismissal of his amended civil rights complaint alleging
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
violations of his constitutional rights pursuant to 42 U.S.C. 1983 and 28 U.S.C.

1343(a)(3).
Mr. Jenkins sought leave from the district court to proceed
in forma
pauperis on appeal, but the district court denied his request. Mr. Jenkins has
renewed his motion with this court. In order to succeed on his motion, Mr.
Jenkins must show both an inability to pay the filing fee and the existence of a
nonfrivolous issue on appeal that states a claim on which relief can be granted.
See 28 U.S.C. 1915(e)(2);
Coppedge v. United States , 369 U.S. 438, 445
(1962); Ragan v. Cox , 305 F.2d 58, 60 (10th Cir. 1962).

Mr. Jenkins appellate brief merely repeats the allegations made in his
amended complaint. Mr. Jenkins alleges the following: he was arrested under a
mistaken name and forced to stand trial for telephone harassment of an exgirlfriend; his speedy trial rights were violated; the court subjected him to an
unreasonable competency evaluation at CMHIP; and the defendant doctors
violated his right to deny medical treatment by willful and repeated ordering or
performance, without clinical justification, of demonstrably unnecessary
laboratory tests or studies and by subjecting him to treatment which is contrary
After examining the briefs and 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); 10th Cir. R. 34.1(G).
The cause is therefore ordered submitted without oral argument.
1
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to the generally accepted standards of practice. Rec. doc. 16, at 9-11 (Am.
Compl. filed Aug. 5, 1999). He alleges, without further explanation, that he was
subjected to pencil whipping.
Id. Finally, he asserts that it took the prison
staff fifteen minutes to release him and other prisoners from their rooms during a
fire. He claims to have suffered serious headaches, dizziness, and nausea as a
result of toxic smoke from a burning rubber mattress.
Id. at 2-A. Although
Mr. Jenkins amended complaint should be construed liberally because he is

representing himself,
see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), the
court cannot act as the pro se litigants advocate,

1106, 1110 (10th Cir. 1991)
see Hall v. Bellmon , 935 F.2d
The district court dismissed Mr. Jenkins claims against the Colorado
Mental Health Institute at Pueblo, Colorado (CMHIP) as legally frivolous
pursuant to 28 U.S.C. 1915(e)(2)(B)(i) because CMHIP, as an agency of the
State of Colorado, is protected by Eleventh Amendment immunity.
Oklahoma Dept of Mental Health
See Ramirez v
, 41 F.3d 584, 588 (10th Cir. 1994). The court
further dismissed as legally frivolous under 1915(e)(2)(B)(i) Mr. Jenkins

claims against the defendant doctors because the facts alleged did not establish
deliberate indifference to serious medical needs in violation of his Eighth
Amendment rights.
See Long v. Nix , 86 F.3d 761, 765 (8th Cir.1996) (concluding
prisoners do not have a constitutional right to any particular type of treatment

-3-
and [p]rison officials do not violate the Eighth Amendment when, in exercise of
their professional judgment, they refuse to implement a prisoners requested
course of treatment);
Vaughan v. Lacey , 49 F.3d 1344, 1346 (8th Cir.1995)
(doctors disagreement as to the proper course of [a prisoner's] treatment is not

cf. Washington v. Harper , 494 U.S.
actionable under the Eighth Amendment);
210, 225-27 (1990) (stating the right to be free of medication must be balanced
against the states duty to treat mentally ill inmates and run a safe prison).
Finally, the district court dismissed without prejudice, pursuant to Fed. R. Civ. P.
8(a)(2), Mr. Jenkins Eighth Amendment claim against the defendant doctors for
pencil whipping because the allegation was entirely vague and unclear.
This court has carefully reviewed Mr. Jenkins appellate brief, the district
courts order of dismissal, and the entire record on appeal. That review
demonstrates that the district court properly dismissed without prejudice Mr.
Jenkins Eighth Amendment claim against the defendant doctors for pencil
whipping, and correctly dismissed as frivolous all claims against CMHIP and the
Eighth Amendment claim against the defendant doctors alleging denial of the
right to refuse medical treatment. Accordingly, we hereby dismiss this appeal as
legally frivolous pursuant to 1915(e)(2)(B)(i). In so doing, we specifically note
the district courts dismissal of Mr. Jenkins claims as frivolous and our dismissal
of this appeal on the same grounds each count as a strike for purposes of the
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Prison Litigation Reform Act.
See Jennings v. Natrona County Detention Ctr.
Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). Specifically, 1915(g)
provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action [ in forma pauperis ] if the prisoner has, on 3 or more
prior occasions while incarcerated . . . brought an action or appeal in
a court of the United States that was dismissed on the grounds that it
was 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.
According to our review of Mr. Jenkins case history, he now has at least
three strikes.
See Jenkins v. Denver County Jail , No. 99-1335, 2000 WL 84893
(10th Cir. Jan. 27, 2000) (unpublished disposition). Mr. Jenkins is advised that
he is no longer entitled to proceed
in forma pauperis in any civil action or appeal
of a judgment in a civil action, unless it involves imminent danger of serious

physical injury. 28 U.S.C. 1915(g);
see White v. Colorado , 157 F.3d 1226,
1232 (10th Cir.1998), cert. denied , 119 S. Ct. 1150 (1999).

The district court order of dismissal is AFFIRMED.
Entered for the Court,

Robert H. Henry
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

COLORADO MENTAL HEALTH

Before BALDOCK , HENRY , and LUCERO , Circuit Judges.

Robert J. Jenkins, an inmate at the Denver County, Colorado Jail appeals

violations of his constitutional rights pursuant to 42 U.S.C. 1983 and 28 U.S.C.

Mr. Jenkins sought leave from the district court to proceed

Coppedge v. United States , 369 U.S. 438, 445

(1962); Ragan v. Cox , 305 F.2d 58, 60 (10th Cir. 1962).

Id. Finally, he asserts that it took the prison

Id. at 2-A. Although

Mr. Jenkins amended complaint should be construed liberally because he is

see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), the

court cannot act as the pro se litigants advocate,

see Hall v. Bellmon , 935 F.2d

, 41 F.3d 584, 588 (10th Cir. 1994). The court

further dismissed as legally frivolous under 1915(e)(2)(B)(i) Mr. Jenkins

See Long v. Nix , 86 F.3d 761, 765 (8th Cir.1996) (concluding

prisoners do not have a constitutional right to any particular type of treatment

Vaughan v. Lacey , 49 F.3d 1344, 1346 (8th Cir.1995)

(doctors disagreement as to the proper course of [a prisoner's] treatment is not

actionable under the Eighth Amendment);

Prison Litigation Reform Act.

See Jennings v. Natrona County Detention Ctr.

See Jenkins v. Denver County Jail , No. 99-1335, 2000 WL 84893

in forma pauperis in any civil action or appeal

of a judgment in a civil action, unless it involves imminent danger of serious

see White v. Colorado , 157 F.3d 1226,

1232 (10th Cir.1998), cert. denied , 119 S. Ct. 1150 (1999).

Entered for the Court,

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