F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 7 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
SAMMY ALVAREZ,
Plaintiff-Appellant, No. 01-1107
v. (D.C. No. 00-Z-2306)
M. MCCORMAC; G. STROBRIDGE; (D. Colo.)
R. LEWIS; M. P. PERRY; and T.
HINKLE,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
After examining Appellant’s brief and the 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.
State prisoner Sammy Alvarez, proceeding pro se, appeals the district
court’s sua sponte dismissal of his in forma pauperis complaint as legally
*
This order and judgment is not binding precedent, except under the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.
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Mr. Alvarez filed a 42 U.S.C.
§ 1983 claim against prison officials employed at the Colorado Department of
Corrections at the Centennial Correctional facility, where Mr. Alvarez is
incarcerated. Mr. Alvarez contended that he was denied procedural due process
when prison officials sanctioned him with twenty days’ segregation from other
prisoners for cocaine use, as identified in his urine sample, because notice of his
sanction arrived after the time period set forth in prison regulations.
A § 1915(e)(2)(B)(i) dismissal is reviewed for abuse of discretion. See
Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). An in forma pauperis
complaint may not be dismissed merely because a court finds the “allegations
unlikely.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). In reviewing a
dismissal for frivolousness, this court considers, inter alia, whether the plaintiff
was proceeding pro se, whether the district court inappropriately resolved genuine
issues of material fact, whether the district court applied erroneous legal
conclusions, whether the district court sufficiently explained its dismissal, and
whether the dismissal was with prejudice when “frivolous factual allegations
could be remedied through more specific pleading.” Id. at 34.
In this case, we note that Mr. Alvarez is proceeding pro se, a fact that the
district court carefully considered. In addition, we observe that the court did not
resolve any genuine issues of material fact, and its legal conclusions were
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accurate and thoughtfully expounded. The court pointed out that Mr. Alvarez did
not have a constitutionally-protected liberty interest under state law that would
prevent his twenty-day segregation, since such a sanction did not impose an
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Finally,
the district court’s § 1915(e)(2)(B)(i) dismissal did not pertain to Mr. Alvarez’s
factual allegations, and thus a dismissal without prejudice could not have been
remedied by a more specific pleading of the facts. After carefully considering the
district court’s opinion, we hold that the court did not abuse its discretion in
dismissing Mr. Alvarez’s § 1983 action under 28 U.S.C. § 1915(e)(2)(B)(i).
We remind Mr. Alvarez that because his motion to proceed in forma
pauperis on appeal was denied, he must continue making partial payments on
court fees and costs previously assessed until such have been paid in full.
For the reasons stated above, the judgment of the district court is
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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