Bath v. Colorado Department of Corrections

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 23 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL BATH,
Plaintiff - Appellant,
v. No. 04-1123
(D. Colorado)
COLORADO DEPARTMENT OF (D.Ct. No. 04-Z-342)
CORRECTIONS; JOE, Executive
Director, Colorado D.O.C.; GARY
GOLDER, WARDEN, S.C.F.
C.D.O.C.; CAROL SOARES,
Associate Warden, S.C.F. C.D.O.C.;
MARK BRODDUS, Associate
Warden, S.C.F. C.D.O.C.; K.
DAIKER, Case Manager, S.C.F.
C.D.O.C.; JOHN DOE BACKER, Case
Manager, S.C.F. C.D.O.C.; JON
CRUSSELL, Case Manager, S.C.F.
C.D.O.C.; J. MARTIN, Case Manager,
S.C.F. C.D.O.C.; JOHN DOE
McMONAGLE, Case Manager, S.C.F.
C.D.O.C.; ROGER LAWLESS, Case
Manager, S.C.F. C.D.O.C.; JOHN
DOE CLINE, Capt., C.M. III Case
Manager, S.C.F. C.D.O.C.; JANE
DOE CONRAD, C.M. III Case
Manager, S.C.F. C.D.O.C.; PRESTON
TENEYCK, Food Service, S.C.F.
C.D.O.C.; JOHN DOE
WILDENSTEIN, Capt., S.C.F.
C.D.O.C.; JOHN DOE USARY, Capt.
S.C.F. C.D.O.C.; RAYMOND LT.,
HEARINGS OFFICER, S.C.F.
C.D.O.C.; TOM BULLARD, Hearings
Officer, S.C.F. C.D.O.C.; JOHN DOE
ZENT, Case Manager, S.C.F.
C.D.O.C.
Defendants - Appellees.
ORDER DENYING IN FORMA PAUPERIS
AND DISMISSING APPEAL *
Before SEYMOUR, LUCERO, and O’BRIEN, 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. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Michael Bath, along with other inmates at the Sterling Correctional Facility
in Sterling, Colorado, filed a pro se complaint on February 25, 2004 1 alleging
prison officials violated their federal constitutional and state law rights, including
their Eighth Amendment right to be free from cruel and usual punishment and
their Fourteenth Amendment right to due process, when they were
administratively segregated within the prison population. On March 22, 2004, the
*
This order is not binding precedent except under the doctrines of law of the case,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;
nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
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district court dismissed the Eighth and Fourteenth Amendment claims as frivolous
under 28 U.S.C. 1915A(b)(1). 2 Bath individually appeals.
Bath renews his claim that his Eight Amendment and Fourteenth
Amendment due process rights were violated when he was segregated within the
prison population. 3 Having reviewed Bath’s opening brief, we, like the district
court, cannot discern a reasoned, non-frivolous argument on the law and facts in
support of the issues he raises on appeal.
Accordingly, we DISMISS the appeal as frivolous. 4 Bath’s motion to
proceed in forma pauperis is DENIED. Bath is ordered to pay the full appellate
The court dismissed an Establishment Clause claim for failure to exhaust
2
administrative remedies. See 42 U.S.C. § 1997e(a). The court declined to assume
supplemental jurisdiction over the state law claim inasmuch as it dismissed the federal
claims. See 28 U.S.C. § 1367(c)(3).
3
On appeal, Bath for the first time claims that prison officials acted with deliberate
indifference toward his medical needs, in violation of the Eighth Amendment, because the
administrative segregation put him “under mental distress to the point of suicide . . . .”
(Appellant Br. at 2.) We do not consider issues which are raised for the first time on
appeal except to review for plain error resulting in manifest injustice. United States v.
Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995). We have reviewed the record and
find no plain error; therefore, we decline to consider the claim.
4
Bath accumulates two strikes as a result of this appeal, one due to the district
court dismissal for frivolous claims and one due to our dismissal of the appeal as
frivolous. See 28 U.S.C. § 1915(g); Jennings v. Natrona County Det. Ctr. Med. Facility,
175 F.3 775, 780-81 (10th Cir. 1999).
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filing fee within twenty (20) days of this order.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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