F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 8 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
JERRY ALLEN CLARK,
Plaintiff-Appellant, No. 00-6352
v. (W.D. Oklahoma)
JOHN WHETSEL, Sheriff, and (D.C. No. 99-CV-1122-M)
OKLAHOMA COUNTY SHERIFF’S
DEPARTMENT,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , 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)(c); 10th Cir. R.
34.1(G). 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This order and judgment is not binding precedent, except under the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.
Jerry A. Clark, proceeding pro se and in forma pauperis, appeals from an
order of the district court granting the defendants’ motion to dismiss. Mr. Clark
filed this civil rights suit against the Oklahoma County Sheriff and the Sheriff’s
department pursuant to 42 U.S.C. § 1983, alleging, inter alia, (1) damage to his
personal property, namely, to the engagement ring he purchased and gave to his
fiancee; (2) loss and destruction of his personal property, specifically, other
jewelry given to his fiancee, and resulting damage to his personal relationship
with his fiancee; and (3) unfair treatment such as excessive bond, prolonged
imprisonment, lack of fresh air or sunlight, overcrowding, medical deprivations
(resulting in a protracted toothache), and emotional suffering resulting from the
above harms.
The magistrate judge’s report and recommendation examined each claim
and recommended dismissal of some of them pursuant to Federal Rule of Civil
Procedure 12(b)(6) and dismissal of the remaining ones pursuant to Federal Rule
of Civil Procedure 56(c). In his objections to the report and recommendation, Mr.
Clark argued that he had suffered emotional injury from the alleged theft and
damage to his personal property. Upon de novo review, the district court adopted
the magistrate judge’s recommendation and dismissed the action.
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On appeal, Mr Clark contends: (1) he was denied law library access; (2)
the district court erred when it denied certain discovery requests; (3) he was under
medication when he had to respond to the magistrate judge’s report and
recommendation; and (4) the district court based its decision on inconclusive
records. While we hold pro se pleadings to a less stringent standard than formal
pleadings drafted by lawyers, see Haines v. Kerner , 404 U.S. 519, 520 (1972) (per
curiam), we will uphold the dismissal of a pro se complaint if, accepting the facts
alleged as true, they cannot provide a basis for relief. See Coosewoon v.
Meridian Oil Co. , 25 F.3d 920, 924 (10th Cir. 1994).
Even liberally construing Mr. Clark’s allegations, he raises only issues that
he did not raise before the district court. In general, we will not consider an issue
on appeal that was not raised in the district court. See Walker v. Mather (In re
Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Although the court will address
new issues on appeal when questions of jurisdiction or sovereign immunity are
raised or when clear injustice might otherwise result, this case presents none of
these exceptions. See Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 721 (10th
Cir. 1993). Accordingly, we affirm the district court’s dismissal.
The district court’s dismissal counts as a strike for purposes of 28 U.S.C. §
1915(g). Mr. Clark is reminded that, despite this court’s affirmance of the district
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court’s decision, he remains obligated to continue making partial payments of the
appellate filing fee pursuant to § 1915(b).
Entered for the Court,
Robert H. Henry
Circuit Judge
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