F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES CHAPMAN THAMER, II,
Plaintiff-Appellant,
v. Case No. 97-4174
GORDON CAMPBELL, STEVE (D.C. 97-CV-754)
CORRY, Stake President, GORDON (District of Utah)
B. HINCKLEY, President, Church of
Jesus Christ of Latter Day Saints, and
HEBURT GURTS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
Plaintiff Charles Thamer appeals the dismissal of his pro se civil rights
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. 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.
complaint. 1
The district court dismissed Mr. Thamer’s complaint pursuant to 28
U.S.C. § 1915(g). According to that section, a prisoner may not bring a civil
action in forma pauperis if on three or more prior occasions, while incarcerated,
he or she “brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is 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).
Mr. Thamer has filed thirteen previous claims in the District of Utah, more
than three of which were dismissed as frivolous. Furthermore, this Court has
considered several of Mr. Thamer’s previous cases. See Thamer v. Graf , No. 93-
4093, 1993 WL 340933 (10th Cir. Aug. 27, 1993) (affirming dismissal of
“largely unintelligible” complaint); Thamer v. Neighbors , 91-4051, 1991 WL
172646 (10th Cir. Sept. 4, 1991) (affirming dismissal of complaint); see also
Thamer v. Graf , No. 95-4192, 1996 WL 494308 (10th Cir. Aug. 30, 1996)
An argument can be made that Mr. Thamer’s complaint is brought
1
pursuant to 28 U.S.C. § 2254, rather than 42 U.S.C. § 1983. Indeed, his
complaint and his brief on appeal are difficult to decode. After examining them
carefully, we do not think the district court abused its discretion in treating Mr.
Thamer’s claim as one arising under § 1983. However, even if Mr. Thamer’s
complaint were a petition for a writ of habeas corpus, we would dismiss this
appeal on the grounds that Mr. Thamer’s petition is successive or time-barred.
See 28 U.S.C. §§ 2244(b) & (d); see also United States v. Avila-Avila , 132 F.3d
1347, 1349 (10th Cir. 1997) (denying application for leave to file successive
habeas petition in absence of newly discovered evidence or new constitutional
law).
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(dismissing appeal of denial of “largely unintelligible” habeas petition). Thus,
Mr. Thamer cannot proceed in forma pauperis unless he is under imminent
danger of serious physical injury. The district court found that Mr. Thamer’s
complaint contained no allegations of imminent danger of serious physical injury.
We have reviewed the record on appeal, and to the extent that we can
decipher it, we find no allegation of imminent danger of serious physical injury.
Thus, the district court correctly dismissed Mr. Thamer’s complaint.
Accordingly, this appeal is hereby DISMISSED, and all pending motions are
hereby DENIED. The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
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