Davis v. United States

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                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS June 14, 2011
                                                                 Elisabeth A. Shumaker
                                    TENTH CIRCUIT                    Clerk of Court


 MICHAEL ANTHONY DAVIS,

          Plaintiff - Appellant,
                                                          No. 11-6072
 v.                                               (D.C. No. 5:10-CV-01136-HE)
                                                          (W.D. Okla.)
 UNITED STATES OF AMERICA;
 HARLEY G. LAPPIN, Director, BOP;
 HECTOR A LEDEZMA, Warden;
 ROGALSKY, Unit Manager;
 MENDEZ, Unit Manager; C
 CRABTREE, Unit Counselor;
 CARRIE CHRISTLY, Assistant
 Inmate Systems Manager;
 MALDONADO, South Central
 Regional Director BOP; WILLIS,
 Warden; KAREN L. COLLINS,
 USPO; TERRI L. LASSITER, USPO;
 MICHAEL J. WORLEY, AUSA;
 NANCY LARSON, AUSA; J.
 BEACH, Agent,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges. **

      *
        This order and judgment is not binding precedent, except under the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.
      **
           After examining the briefs and the appellate record, this three-judge
                                                                         (continued...)
      Michael A. Davis, a federal inmate appearing pro se, appeals from the

district court’s order dismissing his claims against Defendant Couch and his

Privacy Act claims with prejudice for failure to state a claim and his FTCA claims

without prejudice as premature. I R. 37-42; 28 U.S.C. §§ 1915A(b) and

1915(e)(2)(B). The district court adopted the report and recommendation of a

magistrate judge, Davis v. United States, No. CIV-10-1136-HE, 2011 WL 704894

(W.D. Okla. Jan. 4, 2011), after determining that Mr. Davis was not raising

Bivens claims. We deny in forma pauperis (“IFP”) status and dismiss the appeal.

      Mr. Davis was convicted in the Northern District of Texas of conspiracy to

possess and distribute crack cocaine and distribution of crack cocaine, aiding and

abetting, and his convictions were affirmed on appeal. See United States v.

Moffitt, 233 F. App’x 409 (5th Cir.), cert. denied, 522 U.S. 1002 (2007). For

substantially the same reasons set forth by the district court in adopting the

magistrate judge’s report and recommendation, we agree that Mr. Davis’s claims

cannot proceed.

      To proceed on appeal IFP, Mr. Davis must present a reasoned, non-

frivolous argument. This we find lacking. Accordingly,


      **
        (...continued)
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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      We DENY IFP status, remind Mr. Davis of his obligation to pay the filing

fee, and DISMISS the appeal.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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