                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                          August 6, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court


 DAVID J. MYERS,

           Plaintiff–Appellant,
                                                             No. 14-1131
 v.                                                 (D.C. No. 1:13-CV-03491-LTB)
                                                               (D. Colo.)
 BUREAU OF PRISONS MAILROOM
 STAFF, unknown unidentified mailroom
 personnel, FCI-Englewood, individual
 capacities; MR. K. MORGAN, individual
 capacity (first name unknown to plaintiff);
 MRS. R. HUFNAGLE, individual
 capacity (first name unknown to plaintiff);
 MR. RENE GARCIA, individual
 capacity; MR. PAUL LAIRD, individual
 capacity; MR. HARRELL WATTS,
 individual capacity,

           Defendants–Appellees.


                                  ORDER AND JUDGMENT*



       *
         After examining appellant’s brief and the 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) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 and 10th Cir. R. 32.1.
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.

       David Myers, a federal inmate being held in Colorado, appeals the dismissal of his

civil rights complaint and the denial of his motion to alter or amend that judgment.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I

       Myers is an inmate at a Federal Correctional Institution in Littleton, Colorado

(“FCI-Englewood”). He filed suit alleging, in eleven claims brought pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),1

that several named and unidentified Federal Bureau of Prisons (“BOP”) personnel

interfered with Myers’ ability to pursue the BOP’s administrative remedy procedure. The

district court dismissed Myers’ complaint as legally frivolous under 28 U.S.C.

§ 1915A(b)(1), and subsequently denied a motion to alter or amend the judgment. Myers

appeals.

                                             II

       A complaint “is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). “[T]his court has not yet determined


       1
        We agree with the district court that although Myers also listed 42 U.S.C.
§§ 1981, 1985, and 1986 in the jurisdiction portion of his amended complaint, he does
not assert claims pursuant to those statutes.


                                            -2-
whether a dismissal pursuant to § 1915A on the ground that the complaint is legally

frivolous is reviewed de novo or for abuse of discretion.” Plunk v. Givens, 234 F.3d

1128, 1130 (10th Cir. 2000). Because we would not reverse the district court’s decision

under either standard, we do not resolve the question of which standard of review applies.

The denial of a Rule 59(e) motion is reviewed for abuse of discretion. Barber ex rel.

Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). We construe

the filings of a pro se litigant liberally, but we do not “assume the role of advocate.” Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

       On appeal, Myers contends that the district court failed to liberally construe his

pro se claims and misunderstood his position and the facts underlying his claims. He

provides little explanation of the district court’s alleged errors, and our independent

review of his petition supports the court’s conclusion that Myers’ claims all arise out of

purported interference with his efforts to complete the BOP administrative remedy

procedure.

       We have held that “[w]here prison officials prevent, thwart, or hinder a prisoner’s

efforts to avail himself of an administrative remedy, they render that remedy

‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones,

607 F.3d 1245, 1250 (10th Cir. 2010). The BOP grievance process, however, “is not a

constitutional right.” Soboroff v. Doe, Nos. 13-3285 & 13-6257, 2014 WL 2871690, at

*3 (10th Cir. June 25, 2014) (unpublished); see also Green v. Corr. Corp. of Am., 401 F.
                                           -3-
App’x 371, 375 n.4 (10th Cir. 2010) (unpublished) (prisoner did not have “a

constitutional right to use the prison grievance procedure”). Because Myers’ complaint

does not allege a constitutional violation as required by Bivens, it fails to state a claim

upon which relief may be granted. See Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir.

2013). It is well settled that a complaint that fails to state a claim is not necessarily

frivolous, Neitzke, 490 U.S. at 328-29, but both frivolousness and failure to state a claim

are grounds for mandatory dismissal under § 1915A(b)(1).

       Myers contends that the district court failed to address his claim of theft. In his

operative complaint, Myers suggests that his rights and good time credits were stolen,

allegations which include the word “theft” but are actually part of his claims regarding

the grievance procedure, discussed above. The complaint also asserts, in a section titled

“Nature of the Case,” that Myers’ personal property—labeled as “(SPECIAL/LEGAL

MAIL)”—was taken. His eleven claims, however, do not allege theft, but rather only that

mail disappeared or did not receive a response. Thus, even accepting all well-pled

allegations in the complaint as true and interpreting them in the light most favorable for

Myers, Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir.

2013), he has not set forth a claim of theft sufficient to meet the pleading standard as it is

explained in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Ashcroft, the Court stated that

“[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of entitlement to relief.” Id. at
                                             -4-
678 (quotations omitted). To the extent Myers’ claim of theft was not subsumed in his

allegations regarding the administrative remedy process, dismissal is nonetheless

appropriate. See § 1915A(b)(1) (permitting dismissal of complaint that is “frivolous,

malicious, or fails to state a claim upon which relief may be granted”). There are no

grounds to reverse the court’s denial of Myers’ motion to alter or amend its judgment of

dismissal.

                                             III

       For the foregoing reasons, we AFFIRM the district court’s dismissal pursuant to

§ 1915A(b)(1). That dismissal counts as a strike under the Prison Litigation Reform Act.

28 U.S.C. § 1915(g); Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775,

780 (10th Cir. 1999). We do not impose an additional strike based on this appeal, which

was not frivolous. Jennings, 175 F.3d at 780. We GRANT Myers’ motion to proceed in

forma pauperis on appeal and remind him of his obligation to continue making partial

payments until the entire filing fee has been paid in full.

                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




                                             -5-
