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

                             FOR THE TENTH CIRCUIT                        February 14, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
CALVIN JOHNSON,

      Plaintiff - Appellant,

v.                                                         No. 18-1094
                                                  (D.C. No. 1:17-CV-03065-LTB)
RICK RAEMISCH; DONNA SIMS; JANE                              (D. Colo.)
DOE; JANE DOE,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

      Calvin Johnson, a state prisoner proceeding pro se,1 challenges the district

court’s dismissal of his 42 U.S.C § 1983 lawsuit for frivolousness under 28 U.S.C.

§ 1915(e)(2)(B)(i). He also moves to proceed in forma pauperis (IFP) on appeal.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 

, 1224 (10th Cir. 2002). But we won’t serve as his advocate. Hall v.
Bellmon, 

, 1110 (10th Cir. 1991).
Exercising jurisdiction under 28 U.S.C. § 1291, we grant Johnson’s IFP motion but

affirm the dismissal of Johnson’s claims.

                                   BACKGROUND

      On February 14, 2018, Johnson filed a Second Amended Complaint against

Rick Raemisch, the Executive Director of Colorado Prisons; Donna Sims, a Sterling

Correctional facility employee; and two Jane Does, also Sterling Correctional

Facility employees, all in their individual and official capacities, under 42 U.S.C.

§ 1983. Johnson complained that he “was shorted a combined 80¢ worth of [his]

unassigned inmate state pay.” ROA at 45. Based on that allegation, he asserted

various due-process claims.

      First, Johnson alleged that Raemisch violated his due-process rights “by

signing rules into effect that ha[ve] contradictory wording in ‘AR-850-03’ that

cause[] inmate banking staff to misinterpret the rules.” 

Second, he alleged

that he complained about his missing unassigned inmate pay to Sims, who

purportedly responded that his inmate pay “[was] calculated correctly.” 

Third, Johnson alleged that Jane Doe violated his due process rights

      by changing the interpretation of ‘AR-850-03’ from meaning that
      unassigned inmate pay is exempt from the codes deducting money for
      being ‘out-to-court’ to instead making unassigned pay subject to the
      codes in ‘AR-850-03’ and deducting money from [his] unassigned pay
      in [D]ecember 2017 for one day of [his] being ‘out to court’ for two
      weeks.

alleged that “another ‘Jane Doe’ or the same ‘Jane Doe’” violated his

due process rights “by removing money from [his] unassigned pay for what looks



                                            2
like the code about being on ‘RFP’ status.” 

isn’t listed as a defendant,

Johnson alleges that a case manager, identified only as “[T]oohey,” violated his due-

process rights by refusing to mail, or to give him a “step-two” grievance form, with

which to complain. Last, Johnson argued that the law library is inadequate, which

violates his right to access the courts.

       The district court dismissed the complaint as legally frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i) and entered judgment by separate order. The district court

concluded that Johnson couldn’t sue the defendants in their official capacities,

because that would require construing Johnson’s allegations as claims against the

Colorado Department of Corrections, which is immune under the Eleventh

Amendment. As to Johnson’s individual capacity claims, the court found that

Johnson had failed to demonstrate the absence of an adequate post-deprivation state

remedy. As such, the district court rejected Johnson’s motion to proceed IFP on

appeal, certifying that any appeal wouldn’t be taken in good faith. This appeal

followed.

                                     DISCUSSION

       We review for an abuse of discretion a district court’s dismissal of a prisoner’s

complaint for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i). Fogle v. Pierson,

, 1259 (10th Cir. 2006) (citing Fratus v. Deland, 

, 674

(10th Cir. 1995)). But where the district court based its frivolousness dismissal on a

legal issue, we review the dismissal de novo. 

v. Potter, 

, 1335 n.4 (10th Cir. 2003)). “A district court may deem an [IFP] complaint


                                           3
frivolous only ‘if it lacks an arguable basis either in law or in fact.’” 

49 F.3d at 674). Therefore, “dismissal is only appropriate ‘for a claim based

on an indisputably meritless legal theory’ and the frivolousness determination

‘cannot serve as a factfinding process for the resolution of disputed facts.’” 

49 F.3d at 674). However, simply failing to state a claim does not

rise to the level of frivolousness. Neitzke v. Williams, 

, 325–30 (1989).

       We first consider Johnson’s claims against the defendants, both in their official

and individual capacities. Next, we consider his IFP motion. Last, we consider the

Prison Litigation Reform Act’s (PLRA) relevance to this appeal.

       (a)    Official-Capacity Claims

       Here, Johnson contends he can sue the defendants in their official capacities

under Monell v. Department of Social Services of City of New York, 

(1978). The Eleventh Amendment bars suits against states under 42 U.S.C. § 1983

“unless the State has waived its immunity.” Will v. Mich. Dep’t of State Police, 

, 66 (1989) (citing Welch v. Tex. Dep’t of Highways and Pub. Transp., 

, 472–73 (1987) (plurality opinion)). A suit against a state official “in his or

her official capacity is not a suit against the official but rather is a suit against the

official’s office.” 

(citing Brandon v. Holt, 

, 471 (1985)). The

Supreme Court has held that 42 U.S.C. § 1983 did not abrogate states’ sovereign

immunity, Quern v. Jordan, 

, 345 (1979), and Johnson cites no authority

for the proposition that Colorado has waived its immunity under § 1983. See Ruiz v.




                                              4
McDonnell, 

, 1181 (10th Cir. 2002); Griess v. Colorado, 

, 1044 (10th Cir. 1988).

      Johnson’s position is “indisputably meritless.” See 

.

Because there is no indication that Colorado has waived its Eleventh Amendment

immunity from federal suits, the district court correctly concluded that Johnson

couldn’t sue the defendants in their official capacities.

      (b)    Individual-Capacity Claims

      On appeal, Johnson argues that the defendants’ deprivation of his unassigned

pay and Toohey’s refusals to let him proceed in the grievance process constitute due

process violations. He also argues that he lacks an adequate state-court remedy

because Colorado state courts are “strict about documents filed instead of treating

them liberally like federal courts.” Appellant’s Opening Br. at 8. Last, Johnson

requests that we allow him to either introduce slightly new claims on appeal or file a

third amended complaint in the district court incorporating those new arguments.

      “The intentional deprivation of property is not a fourteenth amendment

violation if adequate state post-deprivation remedies are available.” Durre v.

Dempsey, 

, 547 (10th Cir. 1989) (per curiam) (citing Hudson v. Palmer,

, 533 (1984)). Colorado law permits prison inmates to file suit against

state actors in their individual capacity when they “willful[ly] and wanton[ly]” cause

injuries.” Colo. Rev. Stat. Ann. § 24-10-105(1). And it permits pro se filings and

waiver of costs and expenses in civil actions for poor persons. 

13-16-103(1);




                                            5


. Accordingly, indigence, lack of counsel, and confinement do

not render a state post-deprivation remedy inadequate. See 

with the district court that Johnson has failed to demonstrate that a

state-court suit is an inadequate remedy to vindicate his due-process claims against

defendants in their individual capacities. That Colorado state courts won’t construe

his claims as liberally as he would prefer doesn’t suffice to show inadequacy.2

However, we disagree with the district court’s conclusion that this claim is frivolous.

Johnson’s argument that his Colorado state-court remedy is inadequate isn’t based on

“fantastic or delusional scenarios.” See 

. We therefore

affirm the district court’s dismissal of Johnson’s individual capacity claims based on

his failure to state a claim. See Ashcroft v. Iqbal, 

, 678 (2009) (“[A]

complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.”) (internal quotations omitted).

       As to his request that we consider new arguments for the first time on appeal,

we generally won’t, and we decline to do so now. Fogle v. Gonzales, 570 F. App’x

795, 796 (10th Cir. 2014) (citing United States v. Lyons, 

, 1238 (10th

Cir. 2007)). Likewise, we deny his request to file a Third Amended Complaint.

       2
          We note that in a previous appeal brought by Johnson concerning a due
process violation over inmate pay, a panel of this court concluded that the district
court abused its discretion when it dismissed Johnson’s lawsuit for frivolousness,
without permitting him to amend his complaint or considering whether such an
amendment would be futile. Johnson v. Whitney, 723 F. App’x 587, 594 (10th Cir.
2018). That isn’t a concern here, however, because the district court ordered Johnson
to file a Second Amended Complaint and explained to him the deficiencies in his
First Amended Complaint. Because Johnson’s Second Amended Complaint remained
deficient, the district court dismissed it.

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      (c)    IFP Motion

      Johnson moves to proceed IFP on appeal. To do so he must demonstrate (1) a

financial inability to prepay the required appellate filing fee, and (2) that he has

provided a “reasoned, nonfrivolous argument on the law and facts in support” of his

appeal. McIntosh v. U.S. Parole Comm’n, 

, 812–13 (quoting

DeBardeleben v. Quinlan, 

, 505 (10th Cir. 1991)). Because Johnson

lacks the funds to prepay the entire filing fee and has, as previously explained, raised

at least one nonfrivolous argument on appeal, we grant his IFP motion. See 

      Johnson acquired his first strike under the PLRA in Johnson v. Doe, No. 17-

CV-2800-LTB (D. Colo. Jan. 16, 2018), aff’d No. 18-1038 (10th Cir. July 10, 2018)

(unpublished) (modifying dismissal from frivolous under § 1915(e)(2)(B)(i) to failure

to state a claim under § 1915(e)(2)(B)(ii), which is still an enumerated ground under

§ 1915(g)). And although we affirm the district court’s judgment here on different

grounds, he acquired another strike when the district court in the present case

dismissed his claims as frivolous. See Coleman v. Tollefson, 

, 1763

(2015) (“A prior dismissal on a statutorily enumerated ground counts as a strike even

if the dismissal is the subject of an appeal.”); Jennings v. Natrona Cty. Detention

Ctr., 

, 780 (10th Cir. 1999) (“If we affirm a district court dismissal [for

failure to state a claim] under 28 U.S.C. § 1915(e)(2)(B), the district court dismissal

then counts as a single strike.”), overruled in part on other grounds, Coleman, 135 S.




                                            7
Ct. at 1763. However, because we conclude that this appeal is nonfrivolous, we do

not impose another strike here.3 See 

judgment of the district court is affirmed for failure to state a claim, and

Johnson’s motion to proceed IFP is granted.


                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge


      3
         We note, however, that since filing this appeal Johnson has acquired several
more strikes. See Johnson v. Raemisch, No. 17-cv-3065 (D. Colo. Feb. 27, 2018)
(dismissed as legally frivolous), on appeal, No. 18-1094 (10th Cir.); Johnson v.
Soucie, No. 17-cv-3093 (D. Colo. Mar. 19, 2018) (dismissed as legally frivolous and
as seeking monetary damages from immune defendants), appeal dismissed for failure
to prosecute, No. 18-1152 (10th Cir. June 13, 2018); Johnson v. Gallagher, No. 18-
cv-377 (D. Colo. March 22, 2018) (dismissed as legally frivolous and as seeking
monetary damages from immune defendants), appeal dismissed for failure to
prosecute, No. 18-1153 (10th Cir. June 13, 2018); Johnson v. Gallagher, No. 18-cv-
424 (D. Colo. March 22, 2018) (dismissed as legally frivolous and as seeking
monetary damages from immune defendants), appeal dismissed for failure to
prosecute, No. 18-1151 (10th Cir. June 13, 2018); Johnson v. Raemisch, No. 18-cv-
425 (D. Colo. April 4, 2018) (dismissed as legally frivolous and as seeking monetary
damages from immune defendants), appeal dismissed for failure to prosecute, No.
18-1167 (10th Cir. May 22, 2018); Johnson v. Overturf, No. 18-cv-195 (D. Colo.
April 9, 2018) (dismissed as legally frivolous and as seeking monetary damages from
immune defendants), appeal dismissed for failure to prosecute, No. 18-1169 (10th
Cir. May 22, 2018); Johnson v. Gallagher, No. 18-cv-427 (D. Colo. April 12, 2018)
(dismissed as legally frivolous and as seeking monetary damages from immune
defendants), appeal dismissed for failure to prosecute, No. 18-1168 (10th Cir. May
22, 2018); Johnson v. Watanabe, No. 18-cv-942 (D. Colo. April 26, 2018) (dismissed
as legally frivolous and malicious and as asserted against defendants entitled to
immunity) (no appeal); Johnson v. Mix, No. 18-cv-943 (D. Colo. May 3, 2018)
(dismissed as legally frivolous and malicious or asserted against defendants entitled
to immunity) (no appeal).

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