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

                     FOR THE TENTH CIRCUIT                  December 18, 2018
                     _________________________________
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
DWAUNE J. GRAVLEY,

      Plaintiff-Appellant,

v.                                                 No. 18-1246
                                          (D.C. No. 1:18-CV-00171-LTB)
LARRY HUNTER, CEO of Direct                         (D. Colo.)
TV; RANDALL STEPHENSON,
CEO of AT&T; JEFFREY ZUCKER,
“Jeff” President of CNN; PHILIP T.
GRIFFIN, “Phil” President of
MSNBC; RUPERT MURDOCH,
CEO of Fox News; CHRIS
MCCARTHY, President of VH1;
GEORGE BODENHEIMER, CEO,
and Acting Chairman of ESPN;
BRIAN ROAPP, CEO of NFL
Networks; BERNARDO GOMEZ,
Co-CEO of Televisa; ALFONSO DE
ANGOITIA, Co-CEO of Televisa;
SEAN L. ATKINS, President of
MTV; STEPHEN B. BURKE, CEO
of NBC; BEN SHERWOOD, CEO of
ABC; JOHN K. MARTIN, CEO and
Current Chairman of TNT; JOHN
LANDGRAF, CEO of FX Networks;
PAUL RYAN, House Speaker; and
ALL OTHER CEO'S, of the
unnamed channels provided by
Prison Admax, Florence Colorado,

       Defendants-Appellees.
                        _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      In this suit, Mr. Dwaune J. Gravley alleges that television networks

and public figures are secretly “branding” him as a sexual predator.

According to Mr. Gravley, he discovered this branding by deciphering a

secret code used on television. The district court sua sponte dismissed the

suit as frivolous, leading Mr. Gravley to appeal and move for leave to

proceed in forma pauperis. We dismiss the appeal and deny the motion.

      Because Mr. Gravley proceeded in forma pauperis in district court,

the court must dismiss the suit or the appeal if it is frivolous. 28 U.S.C.

§ 1915(e)(2)(B)(i). A suit or appeal is frivolous if it “lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324

(1989).




*
      Mr. Gravley requests oral argument, but it would not materially aid
in our decision. We are therefore deciding the appeal based on Mr.
Gravley’s appeal brief and the record. See Fed. R. App. P. 34(a)(2); Tenth
Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited if otherwise appropriate. See Fed.
R. App. P. 32.1(a); Tenth Cir. R. 32.1(A).

                                       2
      We review the district court’s ruling for an abuse of discretion.

Denton v. Hernandez, 504 U.S. 25, 33 (1992). In our view, the dismissal

obviously fell within the district court’s discretion because Mr. Gravley’s

factual contentions were unbelievable. We therefore dismiss the appeal as

frivolous. 1

      Though we dismiss the appeal, we must consider Mr. Gravley’s

request for leave to proceed in forma pauperis. Mr. Gravley lacks enough

money to prepay the filing fee, but we can grant leave to proceed in forma

pauperis only if Mr. Gravley acted in good faith. 28 U.S.C. § 1915(a)(3).

We consider good faith under an objective standard, so a frivolous appeal

is—by definition—made in bad faith. Coppedge v. United States, 369 U.S.

438, 444–45 (1962). Because we have already characterized the appeal as

frivolous, we deny Mr. Gravley’s request for leave to proceed in forma

pauperis. See Lee v. Clinton, 209 F.3d 1025, 1026–27 (7th Cir. 2000)

(holding that a frivolous suit is, by definition, not taken in good faith for

purposes of leave to proceed in forma pauperis).




1
      The district court’s dismissal and ours count as two “prior occasions”
for future requests for leave to proceed in forma pauperis. See 28 U.S.C.
§ 1915(g); see also Jennings v. Natrona Cty. Det. Ctr. Med. 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.”), overruled on other grounds by Coleman
v. Tollefson, 135 S. Ct. 1759, 1763 (2015).

                                       3
Entered for the Court



Robert E. Bacharach
Circuit Judge




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