October 29, 2013
RONALD JENNINGS FOGLE, Plaintiff-Appellant,
ARCHER THOMAS ELLIOTT, JR., Defendant-Appellee.
D. Colorado (D.C. No. 1:13-CV-01766-LTB)
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
ORDER AND JUDGMENT [*]
Michael R. Murphy, Circuit Judge.
After examining Ronald Fogle's appellate filings and the 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.
Fogle filed the instant action in federal district court against Tom Elliott, his attorney in a previous civil case, alleging he suffered losses by virtue of Elliott's malpractice. He labeled his action a "claim for reimbursement, " and recognized a proper civil complaint would be barred by the applicable statute of limitations. After affording Fogle several opportunities to cure deficiencies in his filing, the district court dismissed the action for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). The district court further certified that any appeal would not be taken in good faith and, thereby, denied Fogle in forma pauperis status for purposes of appeal. See 28 U.S.C. § 1915(a)(3).
After Fogle filed a notice of appeal, this court ordered him to file an ifp application. When he filed his application on September 23, 2013, his prison trust account revealed a balance exceeding $1500. Accordingly, this court entered an assessment order pursuant to the terms of 28 U.S.C. § 1915(b). Having now reviewed the entire record, it is clear the district court's disposition of Fogle's action is irrefutably correct. Fogle's arguments to the contrary are frivolous. Accordingly, this court dismisses the appeal pursuant to the terms of 28 U.S.C. § 1915(e)(2). Our dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). Furthermore, given the large balance in Fogle's prison trust account, his motion to proceed in forma pauperis is denied, and he is hereby ordered to immediately remit the full balance of the appellate filing fee.