                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 30, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 LYNN E. SCOTT,

               Plaintiff- Appellant,                     No. 10-1334
          v.                                             (D. Colorado)
 MR. TEKLU,                                    (D.C. No. 1:10-CV-00903-ZLW)

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      After examining appellant’s brief and the appellate record, this court 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.

      Proceeding pro se, Lynn E. Scott appeals the district court’s dismissal of

the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Scott alleged

he was deprived of the rights granted him by state law without due process when


      *
        This order and judgment is not binding precedent except under the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.
Defendant, his state parole officer, failed to assist him in securing housing. 1 See

Colo. Rev. Stat. § 17-22.5-403(8)(a) (“For persons who are granted parole . . . ,

the division of adult parole shall provide parole supervision and assistance in

securing employment, housing, and such other services as may affect the

successful reintegration of such offender into the community while recognizing

the need for public safety.”). Scott sought compensatory, equitable, and punitive

damages for this alleged constitutional violation.

      The district court concluded Scott’s claim was legally frivolous because he

failed to allege facts implicating a constitutionally protected life, liberty, or

property interest. The court, accordingly, dismissed Scott’s complaint pursuant to

28 U.S.C. § 1915(e)(2)(B). See Schlicher v. Thomas, 111 F.3d 777, 779 (10th

Cir. 1997) (holding that an action is frivolous if “the claim [is] based on an

indisputably meritless legal theory or if it is founded on clearly baseless factual

contentions” (quotations omitted)).

      The matter is before this court on Scott’s appeal of the district court’s order

of dismissal and his request to proceed on appeal in forma pauperis. Scott asserts

Colorado law creates a protected liberty interest in being provided with housing

assistance while on parole. See Colo. Rev. Stat. § 17-22.5-403(8)(a) . After

careful review of Scott’s appellate brief and the entire appellate record, it is

      1
       Scott’s original complaint also contained a retaliation claim that appears to
implicate the state parole board. This claim was abandoned in Scott’s amended
complaint.

                                          -2-
absolutely clear that the Colorado statute upon which Scott bases his claim does

not create the liberty interest he asserts. Further, Scott concedes in his appellate

brief that Defendant made arrangements for him at a local homeless shelter but he

refused to go. Accordingly, Scott’s appeal is “without merit in that it lacks an

arguable basis in either law or fact.” Thompson v. Gibson, 289 F.3d 1218, 1222

(10th Cir. 2002). We dismiss the appeal as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i).

      Dismissal of Scott’s 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). Thus, Scott

has accumulated two strikes for purposes of the filing restrictions set out in 28

U.S.C. § 1915(g). We deny Scott’s motion to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915(a)(1) and remind him of his responsibility for the immediate

payment of any unpaid balance of the appellate filing fee.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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