UNITED STATES COURT OF APPEALS
Filed 10/10/96
TENTH CIRCUIT
DANNY CAMPBELL, SR.,
Plaintiff - Appellant,
v. No. 96-6053
(D.C. No. CIV-95-2022-R)
JACK COWLEY and MARCIA (Western District of Oklahoma)
HANES,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
Appellant, Danny Campbell, appeals an order dismissing his 42 U.S.C. §
1983 claim as frivolous under 28 U.S.C. § 1915(d). He alleged that the
defendants at the Joseph Harp Correctional Center conspired to violate his
constitutional rights in 1992 and they did not answer several grievances that he
filed that year. A magistrate judge recommended dismissing the complaint as
frivolous under 28 U.S.C. § 1915(d), because the “complaint is virtually identical
*
The case is unanimously ordered submitted without oral argument pursuant to Fed. R.
App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
to and in fact consists largely of a photocopy of the complaints [Campbell] filed
in two other cases in this district.” R. 4 at 2. Campbell objected to the
recommendation and urged the district court to reach the merits, despite “the
couple of times, I’ve presented this case.” R. 5 at 2. The district court reviewed
the case de novo and adopted the recommendation to dismiss the case as frivolous
under § 1915(d). We review such a dismissal for an abuse of discretion. Denton
v. Hernandez, 504 U.S. 25, 33-34 (1992).
As a preliminary matter, we note that Campbell has been allowed to
proceed with this appeal in forma pauperis, without payment of costs or fees.
While incarcerated, Campbell has filed three § 1983 complaints in forma pauperis
that were dismissed as frivolous under § 1915(d), one of which is the subject of
this appeal and the other two, the suits which the district court concluded were
nearly identical to the present complaint. See Campbell v. Cowley, No. CIV-92-
268-R (W.D. Okla. Mar. 11, 1992); Campbell v. Cowley, No. CIV-93-577-R
(W.D. Okla. May 24, 1993), aff’d, 13 F.3d 404 (10th Cir. 1993). The Prison
Litigation Reform Act of 1995 generally prevents a prisoner from proceeding in
forma pauperis “if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal . . . that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
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upon which relief may be granted.” The Prison Litigation Reform Act of 1995,
Pub. L. No. 104-134, §§ 804-05, 110 Stat. 1321, 1374-75 (amending 28 U.S.C.
§ 1915). That Act does not apply to the present appeal, however, because
Campbell filed his notice of appeal before the Act was signed into law. White v.
Gregory, 87 F.3d 429, 430 (10th Cir. 1996). We are bound by that decision.
After reviewing the entire record and Campbell’s brief on appeal, we are
unable to conclude that the district court abused its discretion in dismissing the
complaint. We affirm the dismissal of the complaint for the reasons stated by the
district court in its order dated January 18, 1996.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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