                                                                              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        This order and judgment is not binding precedent, except under the doctrines of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.


                                               2
       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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