FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 15, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
RICHIE CHARLES HARVEY,

      Plaintiff - Appellant,

v.                                                         No. 17-4106
                                                   (D.C. No. 1:13-CV-00056-DB)
TERRY L. THOMPSON, Sheriff; FNU                              (D. Utah)
MCLEOD; DEBBIE HALL, Lt.; FNU
SEKULICH; WEBER COUNTY
CORRECTIONAL FACILITY; WEBER
COUNTY CORRECTIONAL FACILITY
MEDICAL DEPARTMENT; FNU
WOODS, Doctor; MATHEW G. BELL,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Richie Charles Harvey, a Utah state prisoner appearing pro se, appeals the

dismissal of his 42 U.S.C. § 1983 action for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii), failure to follow court orders, and failure to prosecute under D.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Utah Civ. R. 41-2.1 He also moves to proceed in forma pauperis (IFP). Because the

district court acted within its discretion when it dismissed Harvey’s complaint

without prejudice for failure to prosecute, we affirm.

                                   BACKGROUND

A. Facts2

      On February 11, 2013, unidentified corrections officials transferred Harvey

from the San Diego City Jail to the Weber County Correctional Facility. Harvey

suffers from Hepatitis C. At intake, he notified Weber County Correctional Facility

staff that he had Hepatitis C and needed treatment. Because no doctor was on duty, a

nurse, identified as Jane Doe #1, spoke with him and told him that he would see a

doctor in a few days. Harvey alleges that someone from the San Diego City Jail

brought his medical records to the Weber County facility. But a Weber County

corrections deputy, identified as John Doe #1, informed Harvey that any medical

records would be with his belongings, as sent by the San Diego City Jail. Harvey

alleges that the nurse looked in his bags for the records, but that the records weren’t

there. He also alleges that Jane Doe #1 failed or refused to call the San Diego City

Jail to get his medical records. And he alleges that he signed medical releases on


      1
        We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 

, 1224 (10th Cir. 2002). But this liberal treatment has limits. Though we
can make allowances for “the [pro se] plaintiff’s failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and sentence construction, or
his unfamiliarity with pleading requirements,” we can’t serve as his advocate. Hall v.
Bellmon, 

, 1110 (10th Cir. 1991).
      2
          We’ve taken these fact allegations from Harvey’s pleadings.
                                            2
February 11 and 13, 2013, to enable the San Diego City Jail to release his medical

records to the Weber County facility.

       On February 13, 2013, a nurse at the correctional facility drew Harvey’s blood,

which Harvey contends should have independently confirmed his Hepatitis C

diagnosis. Harvey alleges that he explained his medical needs to the nurse during this

appointment.

       That same day, February 13, Dr. Woods3 evaluated Harvey. Harvey alleges

that he told Dr. Woods about his Hepatitis C diagnosis but Dr. Woods declined to

provide needed treatment because of the cost. On March 6, 11, and 19, Dr. Woods

saw Harvey for medical appointments. Harvey contends that at each appointment Dr.

Woods refused to treat him for Hepatitis C. He contends that these refusals caused

him liver damage and led to the “wasting of the upper and lower extremities with

other significant and serious weight loss.” R. at 21. And he contends that these

symptoms put Utah Department of Corrections employees on notice of his

deteriorating condition.

       In a separate argument, Harvey contends that department of corrections staff

restricted his access to the law library and that the library’s resources are deficient.

B. Procedural History

       On April 10, 2013, acting pro se, Harvey sued John Doe #1, Jane Doe #1, Dr.

Woods, and others, under 42 U.S.C. § 1983. He alleged that they had violated his

Fourth, Sixth, Eighth, and Fourteenth Amendment rights by denying him necessary

       3
           Harvey didn’t provide Dr. Woods’s first name in his first complaint.
                                             3
medical treatment. He also alleged that the defendants had discriminated against him

based on his medical condition and race (Harvey is a person of color).4 He then

moved for a preliminary injunction and for appointment of counsel. Twenty days

later, Harvey moved to amend his complaint.

       On December 30, 2013, the district court reviewed Harvey’s complaint under

28 U.S.C. § 1915(e) and concluded that it was deficient for the following reasons: (1)

it “inappropriately allege[d] civil rights violations on a respondeat-superior theory”;

(2) it “state[d] [a] claim in violation of municipal-liability doctrine”; (3) it

“improperly name[d] ‘Weber County Correctional Facility’ (WCCF) and Weber

County Correctional Facility Medical Department’ [sic] as defendants, though they

are not independent legal entities that can sue or be sued”; (4) it “refer[red] to John

Does, without giving detailed information that would allow them to be identified”;

(5) it “allege[d] a conspiracy claim that [wa]s too vague”; (6) and it “ha[d] claims

apparently regarding current confinement; however, the complaint was apparently not

drafted with the help of contract attorneys.” 

The district court provided

Harvey with detailed instructions to cure the alleged deficiencies, and gave him 30

days to do so. The court also denied his motions for preliminary injunctive relief and

for appointment of counsel.

       On February 20, 2014, well after the 30 days to cure his complaint’s

deficiencies had run, Harvey moved for an extension of time to amend his complaint.

The court granted that motion.

       4
           Harvey doesn’t specify his race in his pleadings.
                                             4
      On August 4, 2014, seven months after the 30-day period had run, the district

court dismissed Harvey’s complaint “without prejudice for failure to state a claim

under § 1915(e)(2)(B)(ii), failure to follow Court orders, and failure to prosecute, see

[D. Utah Civ. R.] 41-2.” 

      On April 2, 2015, Harvey moved to reopen his dismissed case. A month later,

he filed his “Supplemental Amended Complaint” against Matthew G. Bell, Weber

County, and Sheriff Terry Thompson. And a month after that, he moved for

appointment of counsel and to amend his complaint for a second time.

      On October 8, 2015, the district court granted Harvey’s motion to reopen his

dismissed case and his motion to amend his complaint, but denied his motion to

appoint counsel. And on April 28, 2016, the district court ordered Harvey to cure

deficiencies it had found in his “Supplemental Amended Complaint” within 30 days.

Harvey attempted to appeal the court’s April 28 order to this court, but we dismissed

it as premature. Harvey never filed a Second Amended Complaint.

      On October 18, 2016, the district court issued a third order directing Harvey to

cure, within 30 days, the deficiencies in his “Supplemental Amended Complaint.”

The district court reissued this order on April 7, 2017. The court found Harvey’s

“Supplemental Amended Complaint” deficient in this reissued order for the following

reasons: (1) it wasn’t “on the form required by the Court”; (2) it was “in parts and not

in one coherent whole as it must be to proceed”; (3) it “inappropriately allege[d] civil

rights violations on a respondeat-superior theory”; (4) it “state[d] [a] claim in

violation of municipal-liability doctrine”; (5) it “improperly name[d] Weber County

                                            5
as a defendant, though it is not an independent legal entities [sic] that can sue or be

sued”; (6) it “refer[red] to John Does, without giving detailed information that would

allow them to be identified”; and (7) it “ha[d] claims apparently regarding current

confinement; however, the complaint was apparently not drafted with the help of

contract attorneys.” 

The court gave Harvey yet another 30-day period

to cure these deficiencies.

      But Harvey never responded. So on June 20, 2017, the district court dismissed

Harvey’s complaint “with prejudice for failure to state a claim under

§ 1915(e)(2)(B)(ii), [to] follow the Court’s Order, and to prosecute his case, see [D.

Utah Civ. R.] 41-2.” 

But the judgment entered by the district court

dismissed Harvey’s complaint “without prejudice for failure to prosecute.” 

(emphasis added). Eight days later, Harvey filed a notice of appeal with this court.

                                      ANALYSIS

A. Failure to Prosecute

      We “may affirm on any ground” supported by the record, but we disfavor

ruling “on legal grounds not considered by the trial court.” Sherman v. Klenke, 653 F.

App’x 580, 595–96 (10th Cir. 2016) (quoting Rimbert v. Eli Lilly & Co., 

, 1256 (10th Cir. 2011)); cf. Reedy v. Werholtz, 

, 1276 (10th Cir.

2011) (“[W]e may ‘affirm on any ground supported by the record[.]’”). Because we

conclude that the district court didn’t abuse its discretion by dismissing Harvey’s

claims for failure to prosecute, we don’t address the district court’s alternative

grounds for its decision.

                                            6
      A dismissal without prejudice for failure to prosecute “close[s] the case,” so

we have jurisdiction over this appeal under 28 U.S.C. § 1291. Advantedge Bus. Grp.,

L.L.C. v. Thomas E. Mestmaker & Assoc., Inc., 

, 1235 (10th Cir. 2009).

      We review for an abuse of discretion an order dismissing an action for failure

to prosecute. 

(citing Nasious v. Two Unknown B.I.C.E. Agents, 

, 1161 (10th Cir. 2007)). “An abuse of discretion occurs ‘when a district court

relies upon an erroneous conclusion of law or upon clearly erroneous findings of

fact.’” Clowdis v. Colorado Hi-Tec Moving & Storage, Inc., 604 F. App’x 678, 680

(10th Cir. 2015) (quoting Ecclesiastes 9:10–11–12, Inc. v. LMC Holding Co., 

, 1143 (10th Cir. 2007)). A district court may sanction a party for failing to

prosecute his case. Advantedge Bus. Grp., 

(quoting Reed v.

Bennett, 

, 1195 (10th Cir. 2002)). “When dismissing a case without

prejudice, ‘a district court may, without abusing its discretion, enter such an order

without attention to any particular procedures.’” 

492 F.3d at

1162). Being a harsher remedy, a dismissal with prejudice requires a district court to

“first consider certain criteria.” Id. (citing 

).

      Harvey contends that the district court erred when it dismissed his complaint

for failure to prosecute. Appellant’s Opening Br. at 2. Over a three-year period, the

court gave Harvey four 30-day extensions to cure his pleadings’ deficiencies. The

court gave Harvey detailed instructions on how he could cure those deficiencies, and

sent him a Pro Se Litigant Guide. Harvey never cured those deficiencies. So the

district court didn’t abuse its discretion by dismissing Harvey’s complaint without

                                            7
prejudice for failure to prosecute. See, e.g., Clowdis, 604 F. App’x at 680–81

(determining that a district court didn’t abuse its discretion for dismissing indigent

plaintiff’s complaint for failure to prosecute where the plaintiff failed to provide the

court status reports every 90 days for a year and a half despite being ordered to do

so).

B. Prison Litigation Reform Act (PLRA) & IFP Motion

       Section 1915(g) prohibits prisoners from bringing civil actions or appeals

under IFP status if the prisoner has, on three or more occasions, brought an action or

appeal that was dismissed because 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.” 28 U.S.C. § 1915(g). Dismissal for failure to

prosecute typically doesn’t count as a PLRA strike. Hafed v. Fed. Bureau of Prisons,

, 1179 (10th Cir. 2011). But where we deny IFP status because we

determine a prisoner’s appellate arguments are frivolous, and then we dismiss the

prisoner’s appeal for nonpayment of fees (also known as failure to prosecute), the

failure to prosecute the appeal may result in a strike under the PLRA. 

a

circumstance, the frivolousness of the prisoner’s arguments is the “‘but for’ cause of”

our “subsequent dismissal” of the prisoner’s claims, so “it would be ‘hypertechnical’

to hold that the resulting dismissal for nonpayment was not a strike.” 

district court dismissed Harvey’s claims on three grounds: failure to

state a claim under § 1915(e)(2)(B)(ii); failure to follow court orders; and failure to

prosecute under D. Utah Civ. R. 41-2. The court instructed Harvey to cure pleading

                                            8
deficiencies four times, but Harvey never responded. The district court’s dismissal of

Harvey’s claims for failure to state a claim counts as a strike under the PLRA, and

that strike is effective immediately. Coleman v. Tollefson, 

, 1764

(2015).

      We also determine that Harvey has shown “a financial inability to pay the

required [filing] fees,” but that he hasn’t forwarded “a reasoned, nonfrivolous

argument on the law and facts in support of the issues” he raises on appeal. McIntosh

v. U.S. Parole Comm’n, 

, 812–13 (10th Cir. 1997) (quoting

DeBardeleben v. Quinlan, 

, 505 (10th Cir. 1991)). So we deny his IFP

motion.

      But we don’t assess Harvey a second strike for our dismissal of his appeal.

Unlike in Hafed, we’ve affirmed the district court’s dismissal of Harvey’s claims

because Harvey failed to prosecute those claims before the district court. We’re not

dismissing his appeal for nonpayment of appeal fees (also known as a failure to

prosecute). See 

. So though we find Harvey’s arguments on

appeal frivolous, their frivolousness isn’t the “but-for” cause of our decision to

affirm the district court’s dismissal of Harvey’s claims for failure to prosecute. 

We affirm the district court’s judgment.


                                    Entered for the Court


                                    Gregory A. Phillips
                                    Circuit Judge




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