F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 21 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROGER EUGENE GRESHAM,
Plaintiff-Appellant,
v. No. 00-6153
(D.C. No. 99-CV-1745-L)
JAMES D. CROOK, (W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Roger Eugene Gresham, a pro se federal prisoner, appeals the
district court’s dismissal of his civil rights complaint pursuant to 28 U.S.C.
*
This order and judgment is not binding precedent, except under the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.
§ 1915(e)(2)(B)(ii), and its imposition of a “strike” pursuant to § 1915(g).
Because plaintiff’s appeal to this court is frivolous, we dismiss the appeal and
impose a third “strike” against him pursuant to § 1915(g).
In June 1998, plaintiff filed case No. CIV-98-902-L in the district court,
alleging that he fell over a defective railing at the federal prison and received
deficient medical care. As part of the Martinez report in that case, 1 paralegal
Crook submitted a declaration stating that an administrative remedy retrieval
(1) showed that plaintiff had attempted to file an appeal to the central office and
was advised that he should first appeal to the institutional and regional levels; and
(2) did not show that plaintiff had attempted to follow the administrative remedy
process at the institutional or regional levels. R. I, doc. 2, ex. 7. After
considering the merits of plaintiff’s claims in case No. CIV-98-902-L, the district
court dismissed some of the claims and granted summary judgment on the rest.
We affirmed the district court’s judgment in Gresham v. Flowers, No. 99-6397,
2000 WL 192926 (10th Cir. Feb. 17, 2000) (unpublished disposition), and
imposed a “strike” against plaintiff for filing a frivolous appeal. Id. at **4.
Plaintiff brought this action against paralegal Crook, alleging that the
statements in the declaration were false and violated plaintiff’s civil rights. The
magistrate judge to whom the case was referred held that plaintiff failed to state a
1
See Martinez v. Aaron , 570 F.2d 317, 319-20 (10th Cir. 1978).
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claim (1) under 42 U.S.C. § 1983 because Crook was not a state actor; and
(2) under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 397 (1971), because the statements, even if false, did not affect the
outcome of plaintiff’s prior lawsuit, which was decided on the merits. The
magistrate judge recommended that the complaint be dismissed for failure to state
a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), and that a “strike” be imposed
against plaintiff pursuant to § 1915(g). The district court adopted these
recommendations, and plaintiff appealed.
We review de novo the district court’s dismissal of an action for failure to
state a claim. Proctor & Gamble Co. v. Haugen , 222 F.3d 1262, 1278 (10th Cir.
2000). Plaintiff argues that his evidence that he did, indeed, file administrative
appeals at the institutional and regional levels demonstrates that paralegal Crook
committed perjury, thereby violating plaintiff’s rights. Plaintiff has not shown
that Crook’s declaration was false, however, as he has not shown that the
administrative remedy retrieval upon which Crook relied contained information
other than that reported by Crook. Moreover, even if the declaration contained
false information, plaintiff has not shown any violation of his rights as his
previous lawsuit was not dismissed for failure to exhaust claims, but was decided
on the merits.
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Accordingly, we affirm the district court’s dismissal of plaintiff’s
complaint pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim, and its
imposition of a strike pursuant to § 1915(g). See Jennings v. Natrona County
Detention Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). In addition, we
conclude that plaintiff’s appeal is frivolous under § 1915(e)(2)(B)(i). The legal
theory upon which he chose to proceed is entirely without support, as should have
been apparent to him from the district court’s rejection of the same argument as
frivolous in case No. CIV-98-902-L, the magistrate judge’s careful analysis in
this case, and the district court’s adoption of the magistrate judge’s
recommendation. We therefore hold that plaintiff has incurred a third strike
pursuant to § 1915(g), and that he is now prohibited from proceeding in forma
pauperis in a civil action or appeal in federal court–other than petitions for writ of
habeas corpus–unless the claim involves an “imminent danger of serious physical
injury.” Id. We remind plaintiff of his continuing obligation to pay all
installments of the deferred district court and appellate filing fees until they are
paid in full. No exception is made for dismissed appeals. See 28 U.S.C.
§ 1915(b)(2).
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The appeal is DISMISSED as frivolous. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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