FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 2, 2016
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOHN W. UMOREN,
Plaintiff - Appellant,
No. 16-6230
v. (D.C. No. 5:16-CV-00106-M)
(W.D. Okla.)
WARDEN BYRD, Warden of prison,
individually; FNU BRAGGS, Deputy
Warden, individually; CHIEF
HILLIGOSS, Chief of Management,
individually and in his official
capacity; CHIEF COX, Chief of
Security, individually and in his
official capacity; FNU HOLLARN,
Principal and Supervisor of law library
and education, individually and in his
official capacity; MS. FNU
SHOEMAKER, Quality Assurance and
Public Relations Officer, individually
and in her official capacity; FNU
BATTLES, C Unit Manager,
individually and in his official
capacity,
Defendants - Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the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.
Before KELLY, HOLMES, and MORITZ, Circuit Judges. **
Plaintiff-Appellant John Umoren, a state inmate appearing pro se, brought
this 42 U.S.C. § 1983 action against several staff members at the Cimarron
Correctional Facility, alleging that the defendants (1) allowed and prompted the
murder of gang members, and (2) inhibited his access to the law library in an
attempt to cover up their misconduct. 1 R. 6–17. As relief, Mr. Umoren seeks
“to remove the . . . defendants from any supervisory position and terminate their
employment,” as well as “allow prison reform and implementation of gang policy
and law library access.” Id. 16.
The magistrate judge recommended that the case be dismissed pursuant to
42 U.S.C. § 1997e(c) for failure to state a claim. 1 R. 80–88. Over Mr.
Umoren’s objection, the district court adopted the recommendation and dismissed
the case. Umoren v. Byrd, No. Civ-16-106-M, 2016 WL 3945837 (W.D. Okla.
July 19, 2016). We review de novo. Ruiz v. United States, 160 F.3d 273, 275
(5th Cir. 1998); see also Barnes v. Hawk, 166 F.3d 346 (10th Cir. 1998)
(unpublished).
Under § 1997e(c)(1), a court “shall on its own motion . . . dismiss any
**
After examining the briefs and the appellate record, this three-judge
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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action brought with respect to prison conditions under section 1983 of this title
. . . if the court is satisfied that the action is frivolous, malicious, [or] fails to
state a claim upon which relief can be granted.” An action is frivolous if “it lacks
an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989). Dismissal for failure to state a claim is proper where a complaint
lacks factual content suggesting plausibility, i.e. that “the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On appeal, Mr. Umoren argues that the district court abused its discretion
by dismissing his complaint sua sponte and dismissing it without leave to amend.
However, § 1997e(c) expressly authorizes a district court to dismiss a suit at any
time if the court determines the action fails to state a claim, and Mr. Umoren was
heard when he objected to the magistrate judge’s recommendation. Moreover, we
agree with the district court that Mr. Umoren’s two claims do not demonstrate the
type of actual and concrete injury, specific to him, that would be required to
pursue such claims. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Swoboda v.
Dubach, 992 F.2d 286, 289 (10th Cir. 1993).
Accordingly, we DISMISS the appeal, and DENY leave to proceed IFP.
Mr. Umoren is obligated to pay the full filing fee. We find the appeal frivolous
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and a “strike” for purposes of 28 U.S.C. § 1915(g).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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