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

                                                                             DEC 19 2003
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                                Clerk


 EDDIE DEAN FLUKER,

          Plaintiff-Appellant,

 v.                                                       No. 03-1271
                                                          (Colorado)
 UNITED STATES OF AMERICA;                            (D.Ct. No. 03-Z-719)
 ROBERT A. HOOD; HARLEY
 LAPPIN; R. DERR; J.M.
 BELLANTONI; JOHN ASHCROFT;
 P. TELITZ; JOHN SHERIDAN; K.
 LITVAN,

          Defendants-Appellees.


      ORDER AND JUDGMENT DISMISSING FRIVOLOUS APPEAL


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      Eddie Dean Fluker, a federal prisoner, filed complaints 1 against the United

States and its officers or employees, seeking damages and injunctive relief. The

district court concluded his complaints were legally frivolous and dismissed them

pursuant to 28 U.S.C. § 1915A(b). He appeals, pro se. 2 Like the original

      1
          He filed two complaints, both asserting the same three claims.
      2
       We construe pro se pleadings liberally. Ledbetter v. City of Topeka, 318
F.3d 1183, 1187 (10th Cir. 2003).
complaints, the appeal is frivolous and we dismiss it. 28 U.S.C. §

1915(e)(2)(B)(i).

      Relying on Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C.

§§ 2671-80, Fluker claims: 1) he was denied access to the courts because the

prison does not have Colorado legal research materials, which he needs to pursue

a medical malpractice claim, and 2) one defendant refused to photocopy certain

documents for him. He also raises claims asserting he was retaliated against by

various defendants when they filed fraudulent incident reports against him in

violation of his constitutional rights.

      We conclude Mr. Fluker’s appeal is frivolous. We adopt the reasoning of

the district court and DISMISS the appeal as frivolous. The dismissal of this

appeal, combined with the district court’s dismissal of his complaint as frivolous,

means Mr. Fluker has accumulated two strikes under 28 U.S.C. § 1915(g). 3

                                          Entered by the Court:

                                          TERRENCE L. O’BRIEN
                                          United States Circuit Judge



      3
         “In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, 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
. . . .” 28 U.S.C. § 1915(g).
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