Reinforcing the Nonfrivolous Appeal and Pleading Standards in Bivens Actions

Introduction

Brandt v. Cimarron Correctional Facility and Staff (10th Cir. May 27, 2025) arises from a pro se federal‐prisoner’s attempt to pursue a Bivens claim against prison officials. The plaintiff, Donna R. Brandt, alleged unconstitutional treatment, discrimination, HIPAA violations, refusal of meals, and inadequate medical care at Cimarron Correctional Facility. After the district court dismissed her complaint under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii) for failure to state a claim, Brandt sought leave to proceed in forma pauperis (IFP) on appeal. The Tenth Circuit summarily affirmed the dismissal and denied IFP status, holding her appeal frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

Summary of the Judgment

The Tenth Circuit panel, consisting of Judges Eid, Kelly, and Rossman, concluded:

Jurisdiction under 28 U.S.C. § 1291.
Application of 28 U.S.C. § 1915(e)(2)(B)(i) to dismiss frivolous appeals.
Reaffirmation that pro se appellants cannot introduce new factual allegations in an appellate brief to cure a fatally under-pleaded complaint. See Smith v. Plati.
Denial of Brandt’s motion to proceed IFP on appeal because she failed to present any “reasoned, nonfrivolous argument” addressing the district court’s stated deficiencies. See DeBardeleben v. Quinlan.
Designation of the district court’s dismissal and this appeal as “strikes” under the Prison Litigation Reform Act (28 U.S.C. § 1915(g)).

Analysis

Precedents Cited

Bivens v. Six Unknown Named Agents (403 U.S. 388 (1971)): Established a damages remedy against federal officers for constitutional violations.
Fed. R. Civ. P. 12(b)(6): Governs dismissal for failure to state a claim; the same plausibility standard applies under § 1915(e)(2)(B)(ii).
28 U.S.C. § 1915(e)(2)(B)(i): Mandatory dismissal of frivolous in forma pauperis suits and appeals.
DeBardeleben v. Quinlan (937 F.2d 502 (10th Cir. 1991)): Requires IFP‐appellants to show both indigency and a nonfrivolous argument on law and fact.
Smith v. Plati (258 F.3d 1167 (10th Cir. 2001)): Bars consideration of new factual allegations raised for the first time on appeal.
Gutierrez v. Torres, Davis v. Kansas Dept. of Corrections, Thompson v. Robison: Further illustrate the consequences of failing to cure pleading defects or to address them in an appellate brief.

Legal Reasoning

The court invoked a two‐step inquiry for IFP appeals: (1) financial inability to pay fees, and (2) presentation of a reasoned, nonfrivolous argument. Brandt’s brief neither cited governing authority nor grappled with the district court’s rationale that her pro se complaint lacked detailed factual allegations—such as dates, defendant‐specific conduct, and concrete injuries—to satisfy the plausibility standard. Instead, she restated her vague claims and demanded discovery. Under § 1915(e)(2)(B)(i), the Tenth Circuit held that an appeal which “fails to present any legal theory which could conceivably refute the district court’s disposition” is properly dismissed as frivolous.

Impact

Affirms that pro se litigants must plead with specificity even when proceeding IFP, or face dismissal under § 1915(e)(2)(B)(ii) and (i).
Clarifies that IFP status on appeal hinges not only on indigency but on a minimally plausible legal argument. Frivolous IFP appeals risk “strikes” under the PLRA.
Signals to district courts and litigants that unadorned, conclusory allegations will not survive screening, and additional facts cannot be “bootstrapped” at the appellate level.
May deter meritless prisoner appeals—but also underscores the importance of legal assistance or careful self-representation in civil‐rights actions.

Complex Concepts Simplified

Bivens claim: A lawsuit for damages against federal officers for violating constitutional rights.
In forma pauperis (IFP): Permission to proceed without prepaying court fees, conditioned on the suit or appeal not being frivolous.
Frivolousness: A case or appeal that lacks any basis in law or fact, or is pursued for improper purposes.
“Strike” under PLRA: A formal designation that counts against a prisoner’s three-strike limit for filing IFP lawsuits in federal court.
12(b)(6) plausibility standard: Requires factual allegations that, if true, make the claim more than speculative.

Conclusion

Brandt v. Cimarron Correctional Facility and Staff reinforces the rigorous application of pleading and appellate standards in prisoner § 1983 and Bivens actions. Key takeaways include:

Pro se plaintiffs must plead specific facts against each defendant to survive screens under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii).
On appeal, IFP status requires not only a showing of indigence but also presentation of a nonfrivolous, reasoned argument under § 1915(e)(2)(B)(i) and Fed. R. App. P. 24(a).
New factual allegations raised solely in appellate briefs cannot cure the deficiencies of a complaint.

This decision underscores the balance between access to courts for indigent litigants and the judiciary’s duty to curb meritless litigation, particularly in the context of constitutional claims against federal officers.