Marks v. Sebelius

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 5 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
ELMORE MARKS, JR.,
Plaintiff-Appellant,
v. No. 04-3111
KATHLEEN SEBELIUS, Governor for (D.C. No. 03-CV-3471-GTV)
the State of Kansas; BILL GRAVES, ex (D. Kansas)
Governor; CHUCK SIMMONS, ex
Secretary of Corrections; JOHN
GRAVES, Hutchinson Correctional
Facility Attorney; ROGER WERHOLTZ,
Present Secretary of Corrections; LOUIS
E. BRUCE, Hutchinson Correctional
Facility Warden under both
administrations; L. ALEXANDER,
Accounting Manager; DAVID R.
McKUNE, Warden for Lansing
Correctional Facility; CARLA
STOVALL, ex Attorney General; PHILL
KLINE, present Attorney General;
LANSING CORRECTIONAL
FACILITY ATTORNEY, under McKune
Administration; PRISON HEALTH
SERVICES, INC.; MIKE NELSON,
Warden El Dorado Correctional Facility,
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This order and judgment is not binding precedent, except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
Before BRISCOE, McKAY, and HARTZ, 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.
Elmore Marks, Jr., a Kansas state prisoner appearing pro se, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action. We exercise jurisdiction pursuant to 28
U.S.C. § 1291 and dismiss the appeal as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
In his § 1983 complaint, Marks alleged “ongoing conspiracy, and purposeful
antisemitic retaliatory animus” for use of the corrections grievance process, racketeering,
and confiscation and destruction of legal materials. ROA, Doc. 1. The district court
dismissed the complaint as frivolous and malicious pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and 42 U.S.C. § 1997e(c)(2). The court found the complaint “fail[ed]
to assert facts which might support a claim for relief,” and that plaintiff “failed to identify
any conduct by a named defendant which arguably states a constitutional deprivation and
instead relies upon bare invective.” ROA, Doc. 8 at 4.
the terms and conditions of 10th Cir. R. 36.3.
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An action is frivolous under § 1915(e)(2)(B)(i) if “the claim [is] based on an
indisputably meritless legal theory or if it is founded on ‘clearly baseless’ factual
contentions.” Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (internal
quotation omitted). We review the district court’s dismissal based on frivolousness for
abuse of discretion. Id. Like the district court, we construe pro se pleadings liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Applying these standards, and after careful review of the record on appeal and all
of Marks’ filings with the court, we conclude the district court did not abuse its discretion
in determining that Marks failed to identify conduct by the named defendants that
constituted a constitutional deprivation.
We DISMISS the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Dismissal of Marks’ 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). Marks is reminded of his obligation to
continue making partial payments of the appellate filing fee until paid in full.
Entered for the Court
MARY BECK BRISCOE
Circuit Judge
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