“Three-Strike Certainty” – The Tenth Circuit’s Consolidated Dismissal in Hale-El v. Doe and the Clarification of PLRA Strike Accrual on Frivolous Appeals

1. Introduction

The consolidated appeals in Hale-El v. Doe presented the Tenth Circuit with an all-too-familiar scenario: a state prisoner, proceeding pro se, lodged sprawling § 1983 complaints against a panoply of prison officials, public defenders, and unknown “John/Jane Does,” alleging constitutional violations ranging from racial discrimination to denial of access to courts. When the district court dismissed both actions as frivolous under 28 U.S.C. § 1915(e)(2)(B), the plaintiff filed notices of appeal— first misdirected to the U.S. Supreme Court and then correctly lodged in the Tenth Circuit.

The appellate panel seized the opportunity to reiterate four interconnected principles:

1. The liberal construction due pro se litigants does not excuse conclusory pleading or salvage facially implausible claims.
2. Transfer decisions within a prison system, sans state-created liberty interest, do not trigger due-process hearings.
3. An appeal dismissed as “frivolous” under § 1915(e)(2)(B)(i) produces a Prison Litigation Reform Act (PLRA) “strike.”
4. Once a prisoner accrues three such strikes, prospective in-forma-pauperis (IFP) status is foreclosed absent imminent-danger allegations.

2. Summary of the Judgment

After a de novo or abuse-of-discretion review (depending on whether the district court’s ruling turned on law or fact), the Tenth Circuit dismissed both appeals as frivolous. It affirmed that:

• The § 1983 pleadings violated Fed. R. Civ. P. 8 by reciting legal conclusions unmoored to concrete facts.
• No cognizable due-process right attaches to the order in which consecutive sentences are served or to routine inter-facility transfers.
• The plaintiff failed to establish essential elements of racial-discrimination, civil-conspiracy, retaliation, and access-to-courts theories.
• Each dismissal counts as a PLRA strike, adding to the appellant’s “extensive history” of defective filings and triggering a future ban on IFP filings.

Consequently, the panel denied leave to proceed IFP on appeal and reminded the appellant that filing fees remain payable notwithstanding dismissal.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The panel’s order, though unpublished, is steeped in well-settled precedent:

• Neitzke v. Williams, 490 U.S. 319 (1989): Defines frivolousness—no arguable basis in law or fact. Used as the measuring stick for § 1915 review.
• Randle v. Romero, 610 F.2d 702 (10th Cir. 1979): Inter-facility transfers are administrative; prisoners lack a constitutional right to a hearing absent state-created liberty interest. Disposes of the “improper resentencing” argument.
• Meachum v. Fano, 427 U.S. 215 (1976): Reinforces that prison transfer, standing alone, does not implicate liberty interests.
• Lewis v. Casey, 518 U.S. 343 (1996): Access-to-courts claims require actual injury; mere inconvenience is insufficient.
• Savage Homes v. Collins, 809 F.3d 1133 (10th Cir. 2016): Lists elements of civil conspiracy under Colorado law—none of which plaintiff alleged with specificity.
• Hampton v. Dillard Dept. Stores, 247 F.3d 1091 (10th Cir. 2001): Sets the § 1981 prima-facie test for racial discrimination. Plaintiff failed each prong.
• Smith v. VA, 636 F.3d 1306 (10th Cir. 2011) & Strope v. Cummings, 653 F.3d 1271 (10th Cir. 2011): Describe PLRA strike mechanics. Provides basis for denying future IFP filings.

Rather than expanding doctrine, the panel meticulously applied these authorities to a textbook example of deficient pleadings, thereby reinforcing their continuing vitality.

3.2 Court’s Legal Reasoning

1. Rule 8 Deficiency. A complaint must give “fair notice” and state a plausible claim. Hale-El’s filings stitched constitutional buzzwords into rambling narrative without tethering each defendant to concrete acts. Conclusory invocations of “due process,” “civil conspiracy,” or “racial profiling” do not satisfy Iqbal/Twombly plausibility.
2. No Protected Liberty Interest in Sentence Sequencing. The perceived wrong—serving county time before DOC time—amounts to administrative sequencing, not resentencing. Absent state statute guaranteeing a chronological order, no federal due-process right accrues.
3. Failure to Plead § 1981 Discrimination. The appellant is neither a member of a recognized protected class nor did he plead intentional discrimination interfering with contractual activity.
4. Civil-Conspiracy Elements Missing. No “meeting of the minds,” no overt unlawful act, no pleaded damages; hence no § 1985 liability.
5. Access-to-Courts and Retaliation Require Actual Injury & Causation. The alleged loss of documents did not alter the outcome because the underlying complaints were dismissed as frivolous, not for evidentiary deficiency. Additionally, no “but-for” link connecting officials’ conduct to legal harm was pleaded.
6. Frivolousness and the PLRA. Because each appellate argument lacked “arguable merit,” § 1915(e)(2)(B)(i) compelled dismissal, simultaneously generating a PLRA strike. The panel tallied appellant’s fourth strike, thus prospectively closing the IFP door.

3.3 Likely Impact of the Decision

While unpublished and thus non-precedential for most issues, the decision packs persuasive punch in three areas:

• Strike Accrual on Appeal: District courts and prison litigants will note the explicit statement that a frivolous appeal— not only a trial-level dismissal—counts toward the § 1915(g) strike tally.
• Administrative Transfers & Sentence Sequencing: The opinion fortifies earlier Tenth Circuit authority that absent state-created entitlements, prisoners have no federal right to dictate the chronology or situs of sentence execution.
• Gatekeeping Function Re-emphasised: The Tenth Circuit signals zero tolerance for repetitive, conclusory filings, empowering district courts to wield § 1915(e)(2)(B) and Rule 8 early in the litigation lifecycle.

4. Complex Concepts Simplified

• § 1983: A statute enabling suits against state actors for constitutional violations. Think of it as the “vehicle” for civil-rights lawsuits in federal court.
• In Forma Pauperis (IFP): Allows indigent litigants to file without prepaying fees. Under § 1915(e)(2)(B), courts must screen such cases for frivolousness.
• Prison Litigation Reform Act (PLRA) “Strike”: Each action or appeal dismissed as frivolous or failing to state a claim counts as a strike. Three strikes → loss of future IFP status unless prisoner shows “imminent danger of serious physical injury.”
• Frivolous Appeal: An appeal is frivolous when the legal issues are beyond reasonable argument—no rational jurist could find merit.
• Rule 8 Pleading Standard: Requires a “short and plain” statement of the claim showing entitlement to relief. Conclusory assertions without factual substrate do not suffice.
• Civil Conspiracy (§ 1985): At least two persons must agree to deprive someone of civil rights and commit an overt act. Mere suspicion of collective intent is inadequate.
• Liberty Interest: A protected freedom recognized by law; in prison context, arises only if state law or policy creates entitlement beyond the ordinary incidents of incarceration.

5. Conclusion

Hale-El v. Doe is less about ground-breaking doctrine and more about doctrinal housekeeping. The Tenth Circuit:

• Affirmed the district court’s power—and duty—to dismiss facially deficient § 1983 pleadings at the screening stage.
• Re-confirmed that administrative sentence management does not equal a constitutional injury.
• Clarified that frivolous appeals as well as trial-level dismissals accrue PLRA strikes, propelling repeat litigants past the three-strike threshold with dispatch.

For prisoners contemplating § 1983 litigation, the message is clear: articulate facts, tether each claim to legal elements, and marshal plausible, non-speculative allegations. For courts and practitioners, the decision reinforces existing doctrine and supplies a succinct citation for counting strikes—ensuring that the PLRA’s gatekeeping function operates with “three-strike certainty.”