F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
JEFFREY LEON GARNER,
Plaintiff - Appellant,
v. No. 06-3075
(D. Kansas)
M ICH AEL A . NELSON , W arden, El (D.Ct. No. 05-CV-3040-SAC)
D orado Correctional Facility; RAY
ROBERTS, W arden, El Dorado
C orrectional Facility; STA TE OF
KANSAS,
Defendant - Appellee.
____________________________
OR D ER D EN YING LEAVE TO PROCEED
ON APPEAL IN FORM A PAUPERIS,
A N D DISM ISSING APPEAL
Before H E N RY, BR ISC OE, and O’BRIEN, 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.
Jeffrey Leon Garner is an inmate in the Kansas prison system. He filed a
pro se 42 U.S.C. § 1983 complaint against two corrections department wardens,
Nelson and Roberts, and the State of Kansas alleging violation of his rights under
the Fifth, Eighth and Fourteenth Amendments of the Constitution of the United
States due to illegal confinement. He was permitted to proceed in form a pauperis
in the district court.
The district court screened Garner’s complaint as required by statute, 28
U.S.C. § 1915A, and ordered him to show cause why the case should not be
dismissed for failing to state a claim for relief under 42 U.S.C. § 1983. The court
reviewed Garner’s response, and dismissed all claims and defendants other than
the claims for damages against defendants Nelson and Roberts in their individual
capacity. The court again ordered Garner to show cause why the remaining
claims should not also be dismissed. Garner responded with a motion for
reconsideration. The court denied Garner’s motion for reconsideration and
dismissed the remaining counts as failing to state a claim.
In this court Garner seeks leave to proceed in form a pauperis. W e have
reviewed his opening brief and cannot discern a reasoned, non-frivolous argument
on the law and facts in support of the issues he proposes to raise. His request is
denied and this frivolous appeal is dismissed. 28 U.S.C. § 1915(e)(2)(B).
Garner has accumulated two strikes, one in the district court and one here.
28 U.S.C. § 1915(g); Jennings v. Natrona County D et. Ctr. M ed. Facility, 175
F.3d 775, 780 (10th Cir. 1999). He is reminded that should he accrue three
strikes, he will no longer be permitted to proceed in form a pauperis in any civil
action filed in a federal court unless he is in imminent danger of physical injury.
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28 U.S.C. § 1915(g).
D ISM ISSE D.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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