F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 4 1999
TENTH CIRCUIT
_________________________________ PATRICK FISHER
Clerk
DAVID L. BUIST,
Plaintiff-Appellant,
v. No. 99-4007
(D. C. No. 98-CV-29-C)
KATHY CARTWRIGHT; KEN (D. Utah)
BINGHAM; DUANE JOHNSON;
JANET SORENSON; STEVEN
YATES; DAVID OKIE; and
TAMARA ROBINETTE,
Defendants-Appellees.
_______________________________
ORDER AND JUDGMENT *
______________________________
Before TACHA, McKAY, and MURPHY,Circuit Judges.
_______________________________
After examining Plaintiff-Appellant’s brief 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)(2); 10th Cir. R. 34.1(G).
*
This order and judgment is not binding precedent, except under the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.
The case is therefore ordered submitted without oral argument.
Proceeding pro se, Plaintiff, a state prisoner, brought an action pursuant to
42 U.S.C. § 1983 seeking damages for six alleged claims of constitutional
violations. Read liberally, they are:
1. Denial of access to the courts by prevention of phone calls and mail
for forty-eight days.
2. Ninth Amendment claim incorporating the conduct described in the
access to courts claims.
3. Cruel and unusual punishment by requiring him to participate in a
“confrontation group” and denial of phone access and a tape recorder
rather than hand-written lesson notes.
4. Denial of due process incorporating the behavior alleged in the claim
for cruel and unusual punishment.
5. A Miranda claim in connection with his arrest.
6. A claim that he was denied an opportunity to file grievances
apparently about the matters included in his other claims.
The matter was referred to a magistrate judge who filed a detailed Report
and Recommendation stating that each claim should be dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). The district court reviewed the
report, Plaintiff’s objections, and the complaint de novo. It adopted the Report
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and Recommendation and dismissed the complaint. We have made the same
review and conclude that the Report and Recommendation is correct.
On appeal, Plaintiff also complains that the district court should have
permitted him to amend his complaint rather than dismiss it. We find no merit to
this claim.
For the reasons stated in the magistrate judge’s Report and
Recommendation, we dismiss the appeal as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(I). The district court’s dismissal of the complaint and our
dismissal of the appeal count as two strikes under 28 U.S.C. § 1915(g). See
Jennings v. Natrona County Detention Ctr. Med. Facility, F.3d , 1999 WL
248634, at *4 (10th Cir. 1999).
DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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