Sheppard v. Matheson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 15 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICKEY LAVERN SHEPPARD,
Plaintiff-Appellant,
v. No. 98-3010
(D.C. No. 96-CV-3479-GTV)
ALVIN MATHESON, Highway (D. Kan.)
Patrolman; MAX BARRETT,
Deputy Sheriff; ROBERT BALLOUN,
Sheriff Russell County; N. JEANNE
BECKER, Magistrate Judge of Russell
County Court; PETER R. WILLIAMS,
Attorney; MERL NEY, Deputy
Sheriff; JERRY E. DRISCOLL,
Attorney,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. 1
Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983, alleging several
violations of his civil rights in connection with his arrest. The district court
dismissed the claims. Upon de novo review, see Chemical Weapons Working
Group, Inc. v. United States Dep’t of the Army , 111 F.3d 1485, 1490 (10th Cir.
1997), 2 we AFFIRM for the reasons cited by the district court in its December 11,
1997, order. This appeal is frivolous, malicious, or fails to state a claim upon
1
We remind plaintiff that the filing fees in both this court and the district
court remain due.
2
The district court dismissed plaintiff’s claim of mishandling of mail as
frivolous. Although it did not specify, we assume the dismissal of the remainder
of the claims was pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a
claim. Because the language of that section parallels Fed. R. Civ. P. 12(b)(6), we
apply the same de novo standard of review. See Barren v. Harrington ,
No. 98-15277, 1998 WL 537934, at *1 (9th Cir. Aug. 26, 1998) (collecting cases).
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which relief can be granted for the purpose of counting “prior occasions”
under 28 U.S.C. § 1915(g) .
Entered for the Court
John C. Porfilio
Circuit Judge
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