                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 5, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                    TENTH CIRCUIT                      Clerk of Court



 CH ARLES A ARO N BR OOKS,

          Plaintiff - Appellant,
 v.
                                                       No. 06-3317
 RICH AR D D . RO GERS; RA LPH L.               (D.C. No. 05-CV-3419-SAC)
 DELO ACH ; E.J. GALLEGOS;                               (D . Kan.)
 HARLEY G. LA PPIN; W . BR IGGS;
 and A. GONZA LES,

          Defendants - Appellees.



                              OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Charles Aaron Brooks, a federal prisoner, appeals the district court’s order

dismissing his 42 U.S.C. § 1983 action as frivolous and malicious. For

substantially the same reasons set forth by the district court, we DISM ISS his

appeal.




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent except under the doctrines of law of the case,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 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
      Brooks filed suit against District Judge Richard D. Rogers, the clerk of the

District Court for the District of Kansas, and various federal officials under 42

U.S.C. § 1983, alleging a violation of his constitutional rights. W ithout benefit of

proof Brooks claims he paid the five dollar fee required to file a habeas petition

in federal district court with a “commercial check” for $100,000, and that

defendants then conspired to prevent court docketing of his check and withhold

his “change.” Although Brooks apparently seeks a refund of the entire $100,000,

we note that even if his allegations were true he would only be entitled to receive

“change” of approximately $99,195: He remains obligated to pay his outstanding

balances of $350 with respect to the district court filing fee and $455 in filing

fees required to pursue this appeal.

      The district court dismissed Brooks’ claim under 28 U.S.C. § 1915(e)(2)(B)

as “frivolous and malicious, as stating no claim for relief, and as seeking relief

from defendants w ho are immune from such relief.” Because it acted under this

provision, the court considered its dismissal a “strike” under 28 U.S.C. § 1915(g).

Section 1915(g) prevents a prisoner from bringing either a civil action or an

appeal if “on 3 or more prior occasions, while incarcerated or detained in any

facility, [the prisoner] brought an action or appeal in a court of the United States

that was dismissed on the grounds that it is frivolous, malicious, or fails to state a

claim upon which relief may be granted, unless the prisoner is under imminent




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danger of serious physical injury.” The district court also denied his motion for

reconsideration brought under Federal Rule of Civil Procedure 60(b).

      Brooks’ claim is plainly frivolous under § 1915(e)(2)(B), and we therefore

DISM ISS his appeal. 1


                                              Entered for the Court



                                              Carlos F. Lucero
                                              Circuit Judge




      1
         The dismissal by this court counts as Brooks’ second strike pursuant to 28
U.S.C. § 1915(g). Jennings v. Natrona County Det. Ctr. M ed. Facility, 175 F.3d
775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an action the
district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as
strikes.”). Brooks is hereby on notice that if he receives one additional strike he
will not be permitted to proceed in forma pauperis in any civil action filed in
federal court unless he is in imminent danger of physical injury. 28 U.S.C. §
1915(g).



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