FILED
United States Court of Appeals
Tenth Circuit
November 30, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LYNN E. SCOTT,
Plaintiff- Appellant, No. 10-1334
v. (D. Colorado)
MR. TEKLU, (D.C. No. 1:10-CV-00903-ZLW)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
After examining appellant’s brief and the appellate record, this court 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.
Proceeding pro se, Lynn E. Scott appeals the district court’s dismissal of
the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Scott alleged
he was deprived of the rights granted him by state law without due process when
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Defendant, his state parole officer, failed to assist him in securing housing. 1 See
Colo. Rev. Stat. § 17-22.5-403(8)(a) (“For persons who are granted parole . . . ,
the division of adult parole shall provide parole supervision and assistance in
securing employment, housing, and such other services as may affect the
successful reintegration of such offender into the community while recognizing
the need for public safety.”). Scott sought compensatory, equitable, and punitive
damages for this alleged constitutional violation.
The district court concluded Scott’s claim was legally frivolous because he
failed to allege facts implicating a constitutionally protected life, liberty, or
property interest. The court, accordingly, dismissed Scott’s complaint pursuant to
28 U.S.C. § 1915(e)(2)(B). See Schlicher v. Thomas, 111 F.3d 777, 779 (10th
Cir. 1997) (holding that an action is frivolous if “the claim [is] based on an
indisputably meritless legal theory or if it is founded on clearly baseless factual
contentions” (quotations omitted)).
The matter is before this court on Scott’s appeal of the district court’s order
of dismissal and his request to proceed on appeal in forma pauperis. Scott asserts
Colorado law creates a protected liberty interest in being provided with housing
assistance while on parole. See Colo. Rev. Stat. § 17-22.5-403(8)(a) . After
careful review of Scott’s appellate brief and the entire appellate record, it is
1
Scott’s original complaint also contained a retaliation claim that appears to
implicate the state parole board. This claim was abandoned in Scott’s amended
complaint.
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absolutely clear that the Colorado statute upon which Scott bases his claim does
not create the liberty interest he asserts. Further, Scott concedes in his appellate
brief that Defendant made arrangements for him at a local homeless shelter but he
refused to go. Accordingly, Scott’s appeal is “without merit in that it lacks an
arguable basis in either law or fact.” Thompson v. Gibson, 289 F.3d 1218, 1222
(10th Cir. 2002). We dismiss the appeal as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
Dismissal of Scott’s appeal as frivolous counts as a strike against him, as
does the district court’s dismissal of his complaint. See Jennings v. Natrona
County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). Thus, Scott
has accumulated two strikes for purposes of the filing restrictions set out in 28
U.S.C. § 1915(g). We deny Scott’s motion to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915(a)(1) and remind him of his responsibility for the immediate
payment of any unpaid balance of the appellate filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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