FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS January 11, 2013
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 DONALD ADAM PENROD,

                Plaintiff - Appellant,

 v.

 DON QUICK, Adams County D.A.;                           No. 12-1163
 SUSAN JONES, Warden CSP; TOM                   (D.C. No. 1:11-CV-03273-LTB)
 CLEMENTS, Executive Director,                             (D. Colo.)
 Colorado Department of Corrections;
 JOHN SUTHERS, Colo. Attorney
 General; CLEMMIE P. ENGLE, Assis.
 Attorney General,

                Defendants - Appellees.



                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Plaintiff-Appellant Donald Adam Penrod, a state prisoner proceeding pro

se, 1 appeals the district court’s dismissal of his claims brought pursuant to 42


      *
             This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
             Because Mr. Penrod is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 

, 94 (2007) (per curiam); Garza v.
Davis, 

, 1201 n.2 (10th Cir. 2010).
U.S.C. § 1983. Mr. Penrod also requests leave to proceed in forma pauperis

(“IFP”) on appeal. For the reasons that follow, we dismiss Mr. Penrod’s appeal

as frivolous and deny his motion to proceed IFP.

                                          I

      In 1991, Mr. Penrod was convicted in Colorado state court of aggravated

robbery of a controlled substance, second-degree kidnaping, and aggravated

robbery. His convictions and sentences were affirmed on direct appeal and in

state post-conviction proceedings. In 2001, Mr. Penrod filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, which the district court denied as

time-barred. A panel of this court denied Mr. Penrod a certificate of

appealability. See Penrod v. Hargett, No. 03-1119 (10th Cir. Oct. 14, 2003). Mr.

Penrod subsequently sought authorization to file a second or successive habeas

petition, and a panel of this court denied his request. See In re Penrod, No. 12-

1024 (10th Cir. Feb. 23, 2012).

      Not long after Mr. Penrod sought to file a second or successive habeas

petition, he filed the instant suit against several Colorado government officials 2

asserting that they committed unconstitutional “frauds on the court” in order to

secure his convictions. Mr. Penrod requested various forms of declaratory and


      2
             The defendants are: Don Quick, Adams County D.A.; Susan Jones,
Warden CSP; Tom Clements, Executive Director, Colorado Department of
Corrections; John Suthers, Colorado Attorney General; and Clemmie P. Engle,
Assistant Attorney General (hereinafter, “Defendants”).

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injunctive relief, including an injunction barring “[D]efendants from enjoying all

benefits” of his convictions, and an order requiring Defendants to reveal their

allegedly unconstitutional “frauds on the court” and “immediately release [him]

from prison.” R. at 291 (Prisoner Compl., filed Feb. 10, 2012). The district court

dismissed Mr. Penrod’s claims as barred by the rule from Heck v. Humphrey, 

 (1994). Because success on Mr. Penrod’s claims necessarily implies the

invalidity of his confinement, reasoned the district court, his claims must be

brought in a habeas proceeding and are not cognizable under § 1983.

Additionally, the district court assessed Mr. Penrod a strike under 28 U.S.C.

§ 1915(e)(2)(B).

                                         II

      “[T]o state a § 1983 claim, a plaintiff must ‘allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.’”

Bruner v. Baker, 

, 1025–26 (10th Cir. 2007) (quoting West v.

Atkins, 

, 48 (1988)). In Heck, however, the Supreme Court held that

“when a state prisoner seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction or sentence has

already been invalidated.” 512 U.S. at 478. The Supreme Court has since

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clarified that the rule from Heck is not limited to claims for damages, but applies

regardless of the relief sought. See Wilkinson v. Dotson, 

, 81–82

(2005) (“[A] state prisoner’s § 1983 action is barred (absent prior

invalidation)—no matter the relief sought (damages or equitable relief), no matter

the target of the prisoner’s suit (state conduct leading to conviction or internal

prison proceedings)—if success in that action would necessarily demonstrate the

invalidity of confinement or its duration.”); accord Davis v. Kan. Dep’t of Corr.,

, 1249 (10th Cir. 2007) (same).

                                          III

      On appeal, Mr. Penrod again recounts the allegedly unconstitutional “frauds

on the court” committed by Defendants that led to his convictions, but he

provides no persuasive reasons as to why the district court erred in holding that

his claims were barred by Heck. 3 Therefore, for substantially the same reasons

articulated by the district court, we hold that Mr. Penrod’s § 1983 claims must be

dismissed.

      Furthermore, because Mr. Penrod has “failed to present any legal theory



      3
              Mr. Penrod’s only argument on this score—one that he does not
support with any legal authority—is that Heck does not apply because the
allegedly unconstitutional “frauds on the court” are “extrinsic” to his conviction.
But even if the alleged frauds are “extrinsic,” Mr. Penrod himself contends that
the frauds demonstrate that his convictions were unconstitutional and that he is
entitled to “immediate[] release” from prison—i.e., that his claims show that his
confinement is invalid.

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which could conceivably refute the district court’s disposition, his appeal is

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).” Davis, 507 F.3d at 1249. Mr.

Penrod is therefore assessed two strikes under 28 U.S.C. § 1915(g). See Jennings

v. Natrona Cnty. Det. Ctr. Med. Facility, 

, 780 (10th Cir. 1999) (“If

we dismiss as frivolous the appeal of an action the district court dismissed under

28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”). In the same vein,

we deny Mr. Penrod’s motion to proceed IFP on appeal, as he has failed to

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

issues raised on appeal.” Caravalho v. Pugh, 

, 1177 (10th Cir.

1999).

                                           IV

         Accordingly, we dismiss Mr. Penrod’s claims as frivolous and deny his

motion for leave to proceed IFP on appeal.

         We direct Mr. Penrod to remit the full amount of the appellate filing fee.



                                                 Entered for the Court



                                                 JEROME A. HOLMES
                                                 Circuit Judge




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