FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 27, 2012
                                         PUBLISH              Elisabeth A. Shumaker
                                                                  Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 CHARLES B. BUCHHEIT,

          Plaintiff - Appellant/Cross-
          Appellee,

 v.                                                Nos. 12-3154 and 12-3158

 CAROL G. GREEN, Clerk of the
 Appellate Courts State of Kansas,

          Defendant - Appellee/Cross-
          Appellant.

 DANIEL MITCHELL, Shawnee
 County Court Judge,

          Defendant - Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                    (D.C. No. 5:12-CV-04038-CM-KGS)


Submitted on the briefs: *

Charles B. Buchheit, Pro Se.

Stephen Phillips, Assistant Attorney General, Topeka, Kansas, for Defendant -


      *
        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); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
Appellee/Cross Appellant.


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


KELLY, Circuit Judge.


      Charles Buchheit, proceeding pro se, appeals from the district court’s sua

sponte dismissal of his complaint against defendant state officials pursuant to 28

U.S.C. § 1915(e)(2)(B). Buchheit v. Green, No. 12-4038-CM-KGS, 

 (D. Kan. May 14, 2012). Carol Green, the defendant clerk of the Kansas

state appellate courts, cross-appeals the district court’s denial of her motion to

review the magistrate judge’s order granting Mr. Buchheit in forma pauperis

(“IFP”) status. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                    Background

      Mr. Buchheit filed his “Petition for Injunctive Relief Under the Fourteenth

Amendment, As Well As, the Equal Access to Justice Act” naming as defendants

Ms. Green and Shawnee County Court Judge Daniel Mitchell. He alleged that the

Kansas state appellate courts had denied his request to proceed IFP and had

refused to docket his state appeals. See R. 8–9, 11–12, 80–81. A magistrate

judge granted Mr. Buchheit’s motion to proceed IFP in federal court. Id. at 97.

Ms. Green objected on the grounds that the magistrate judge failed to screen the


                                         -2-
complaint under 28 U.S.C. § 1915(e)(2). R. 42; see Fed. R. Civ. P. 72(a). The

district court overruled the objection but dismissed the complaint for lack of

subject matter jurisdiction, finding that Mr. Buchheit sought retrospective relief

against the state that is barred by sovereign immunity. Buchheit, 

, at *1, 4.



                                     Discussion

      The issues involved in the appeal and cross-appeal are entirely questions of

law and our review is de novo.

A.    Whether Mr. Buchheit’s Suit is Barred by Sovereign Immunity

      If the claims against Ms. Green and Judge Mitchell in their official

capacities are claims against the State of Kansas, then sovereign immunity

applies. See Moore v. Bd. of Cnty. Comm’rs, 

, 1258 (10th Cir.

2007). The Eleventh Amendment bars suits for damages and other forms of relief

against state defendants acting in their official capacities. Fed. Maritime Comm’n

v. S.C. State Ports Auth., 

, 765 (2002). There is an exception to

state sovereign immunity, however, for suits seeking prospective injunctive relief.

Ex Parte Young, 

, 159–60 (1908); Chamber of Commerce v.

Edmondson, 

, 760 (10th Cir. 2010).

      Mr. Buchheit maintains that he is seeking prospective injunctive relief.

Aplt. Br. 4, 6. We disagree. Determining whether a request for injunctive relief

                                        -3-
is prospective requires a “straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief properly characterized

as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n, 

, 645

(2002) (quotation omitted). Although Mr. Buchheit’s complaint states that he is

seeking prospective injunctive relief, he wants an order allowing him to proceed

IFP and docket his appeal in state court. R. 12. Because he is merely seeking to

address alleged past harms rather than prevent prospective violations of federal

law, we can only reasonably categorize such relief as retrospective. As such, it

does not fall into the Ex Parte Young exception to state sovereign immunity, and

we must affirm the dismissal of his complaint.

B.    Whether the District Court Must Screen Non-Prisoner Complaints Before
      Granting IFP

      In her cross-appeal, Ms. Green argues that the magistrate judge was

required under 28 U.S.C. § 1915(e)(2)(B) to screen Mr. Buchheit’s complaint

before granting IFP and authorizing service. Aplee. Br. 12. She argues that the

purpose of § 1915(e)(2) is to discourage the filing of baseless law suits that

paying litigants would not file (due to the cost of bringing suit) and that

represented clients would not file because of the potential for Rule 11 sanctions.

Id. at 12–13 (citing Trujillo v. Williams, 

, 1216 (10th Cir. 2006)).

      The dismissal of Mr. Buchheit’s claim may normally render such a cross-

appeal moot. See Bannister v. State Farm Mut. Auto. Ins. Co., 

,


                                         -4-
1120 (10th Cir. 2012) (dismissing defendant’s cross-appeal as moot where it

affirmed the district court ruling in defendant’s favor); Miller ex rel. S.M. v. Bd.

of Educ., 

, 1251–52 (10th Cir. 2009) (dismissing defendant’s cross-

appeal as moot where Court of Appeals was unable to grant any effective relief).

There is an exception to the mootness doctrine, however, where the underlying

dispute is “capable of repetition, yet evading review.” Turner v. Rogers, 131 S.

Ct. 2507, 2514–15 (2011). This exception applies if: “(1) the duration of the

challenged action [is] too short to be fully litigated prior to its cessation or

expiration; and (2) there [is a] reasonable expectation that the same complaining

party will be subjected to the same action again.” Hain v. Mullin, 

,

1180 (10th Cir. 2003) (en banc).

      Whether the district court has a statutory duty to screen complaints for

merit before granting a motion to proceed IFP is an issue that has already come

up in multiple cases against Ms. Green and other Kansas state officials. See, e.g.,

Landrith v. Gariglietti, No. 12-3048; Sommerville v. Kansas, No. 12-3015;

Adkins v. Kan. Comm’n on Judicial Qualifications, No. 11-3353. Ms. Green and

other Kansas state officials continue to be served with these types of complaints.

Because the cases often have been dismissed by the district court after the grant

of IFP status, the complaint that the district court should screen these cases for

merit before issuance of summons cannot be addressed. Ms. Green’s predicament

falls squarely within the “capable of repetition, yet evading review” exception to

                                          -5-
our mootness doctrine. See Turner, 131 S. Ct. at 2515. We, therefore, address it

now.

       Ms. Green focuses on the change in language to the statute in 1996 as

evidence that the district court has an obligation to screen cases for merit under §

1915(e)(2) before granting a motion to proceed IFP. Prior to 1996, § 1915(d)

provided: “The court . . . may dismiss the case if the allegation of poverty is

untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C.

§ 1915(d) (1994) (emphasis added). Subsection (d) was changed to (e) and now

provides:

       Notwithstanding any filing fee, or any portion thereof, that may have
       been paid, the court shall dismiss the case at any time if the court
       determines that . . . (B) the action or appeal (i) is frivolous or
       malicious; (ii) fails to state a claim on which relief may be granted; or
       (iii) seeks monetary relief against a defendant who is immune from such
       relief.

Id. § 1915(e)(2)(B) (2012) (emphasis added). Ms. Green argues that the express

change in language from “may” to “shall” imposes a screening requirement on

magistrate judges when reviewing motions to proceed IFP. Aplee. Br. 12–14.

Moreover, in order for § 1915(e)(2) to have any meaning, she contends, screening

must be done sua sponte, prior to service of summons. Id. 14.

       Though screening might be a good practice and more efficient, we find that

nothing in this language requires an assigned magistrate judge to screen a case for

merit or to make a recommendation for dismissal to the district court before


                                         -6-
granting IFP status. As the district court noted, “the language of § 1915(e)(2)

does not impose a duty to screen or review ‘before service of summons.’ Instead,

. . . [it] require[s] a court to dismiss a case filed by an ifp litigant at any time ‘the

court determines that . . . the action or appeal . . . is frivolous [or] fails to state a

claim on which relief may be granted.’” Buchheit, 

, at *1

(citing Merryfield v. Jordan, 

, 926 n.3 (10th Cir. 2009) (emphasis

added)). There is simply nothing in the language of the statute indicating that

such a dismissal must occur before grant of a motion to proceed IFP. Even the

screening requirement of § 1915A(a), which applies only to prisoner complaints

against government officials, is not that strict. See 28 U.S.C. § 1915A(a) (“The

court shall review, before docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint . . . .”). There are good reasons for

flexibility. Dismissing a complaint without benefit of an adversarial presentation

is often an uncertain and time-consuming task, and the district court should make

the call as to if and when it is appropriate.

       The cases upon which Ms. Green relies do not support her position either.

For example, Ms. Green relies on an unpublished case from this circuit for the

proposition that § 1915(e)(2) requires a magistrate judge to screen IFP

applications for merit. See Phillips v. Layden, 434 F. App’x 774, 775 (10th Cir.

Oct. 14, 2011). But the court in Phillips explained that it was the “IFP status

[that] required the district court to evaluate [the plaintiff’s] claims sua sponte.”

                                            -7-
Id. In other words, once a litigant has been granted IFP status, the district court

is required to evaluate the claims for merit, but a magistrate judge is not

necessarily required to do so before such status is ever granted. In dismissing Mr.

Buchheit’s complaint, the district court here fulfilled this requirement.

      Ms. Green also cites Lister v. Department of the Treasury, where we

repeated that “in order to succeed on a motion to proceed IFP, the movant must

show a financial inability to pay the required filing fees, as well as the existence

of a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised in the action.” 

, 1312 (10th Cir. 2005). Although such

language indicates that the movant is required to make a showing of a

nonfrivolous argument when applying to proceed IFP, we do not read it as

creating an affirmative obligation on the part of the district court to apply

§ 1915(e)(2)(B) immediately. Even assuming the “shall dismiss” language of

§ 1915(e)(2) places an affirmative obligation on the district court to review the

claims of litigants proceeding IFP, there is simply no indication that the

obligation attaches prior to the IFP determination.

      We recognize that the purpose of § 1915(e) is to “‘discourage the filing of,

and waste of judicial and private resources upon, baseless lawsuits that paying

litigants generally do not initiate.’” Trujillo, 465 F.3d at 1216 (quoting Neitzke

v. Williams, 

, 327 (1989)). And we acknowledge that prompt

screening may be a good thing and conserve the resources of defendants forced to

                                         -8-
respond to baseless lawsuits. But the language of the present rule also provides

needed flexibility, even if it sometimes requires defendants like Ms. Green and

Judge Mitchell to respond to complaints that may soon be dismissed as without

merit. It simply does not require district courts to review the merits of every

claim that comes before them in an IFP motion, and we decline to read in such an

extensive duty absent statutory language to that effect.

      AFFIRMED. We DENY Mr. Buchheit’s motion for sanctions.




                                        -9-