                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                          November 14, 2012
                      UNITED STATES COURT OF APPEALS
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
                                   TENTH CIRCUIT




 STEPHEN DAVIS,

        Plaintiff–Appellant,                                  No. 12-7043
                                                  (D.C. No. 6:12-CV-00229-JHP-SPS)
 v.                                                           (E.D. Okla.)

 RANDY WORKMAN; ART LIGHTEL;
 DEBBIE ALDRIDGE,

        Defendants–Appellees.


                               ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Stephen Davis, proceeding pro se, brought suit against prison officials for an

alleged violation of his constitutional rights. The district court dismissed Davis’ claims




        * 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
as frivolous under 28 U.S.C. § 1915(e)(2)(B). Exercising jurisdiction under 28 U.S.C.

§ 1291, we dismiss the appeal.

                                             I

       Davis alleges that his fellow inmates attacked him with “Hot-Pots and fans” that

had an “electromagnetic coil,” which “produce[d] electromagnetic transverse waves of

energy, that is capable of traveling through walls.” He alleges that this “caus[ed] brain

malfunction == involuntary speech, heart arythmia (sic) and sleep deprivation.” Davis

argues that this constitutes cruel and unusual punishment in violation of his Eighth

Amendment rights. He further claims that prison officials failed to respond to his

complaints in violation of his Fourteenth Amendment right to equal protection of the law.

       Davis filed a complaint under 42 U.S.C. § 1983, naming several prison officials as

defendants. The district court concluded that Davis had not alleged any facts to support

his claims. Accordingly, it dismissed his complaint as frivolous.

                                             II

       We generally review a district court’s dismissal for frivolousness under § 1915(e)

for abuse of discretion. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).

However, if the “determination turns on an issue of law,” our review is de novo. Id.

Courts are not required to accept all factual allegations as true in reviewing a complaint

under § 1915, but our assessment of the allegations “must be weighted in favor of the

plaintiff.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). We construe Davis’ pro se
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filings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

       We see no error in the district court’s finding of frivolousness. Davis’ complaint

fails to specify how defendants were involved in the alleged Eighth Amendment

violation. As for the alleged Fourteenth Amendment violation, the complaint contains

only the conclusory assertion that by failing to respond to Davis’ claims, one official

“became negligent in her fiduciary duty” to protect him from harm, a violation other

defendants “inactively participated in” by similarly failing to respond. Denuded of any

facts to make the allegations plausible, the complaint fails to state a claim on which relief

can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”). We agree

with the district court that Davis has failed to allege facts to establish that he is

incarcerated under conditions posing a substantial risk of serious harm or that prison

officials demonstrated deliberate indifference to his safety concerns, as required to state a

claim under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

His complaint also fails to make any plausible allegations of an equal protection violation

under the Fourteenth Amendment. Therefore, for substantially the same reasons stated

by the district court, we conclude that Davis’ claims, as well as this appeal, are properly

dismissed under § 1915(e)(2)(B), and that any opportunity to amend his complaint would

be futile. See Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001).
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                                            III

       We DISMISS this appeal and impose one strike on appeal under § 1915(g). See

Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 778 (10th Cir. 1999).

Because the district court also dismissed Davis’ suit for frivolousness, Davis now has two

strikes under § 1915(g). See id. at 780-81. We remind Davis that if he accrues three

strikes, he may no longer proceed in forma pauperis in any civil action filed in federal

court unless he is in imminent danger of serious physical injury. § 1915(g). We DENY

Davis’ motion to proceed in forma pauperis on appeal, and direct him to make full

payment of the appellate filing fee immediately. All other pending motions are

DENIED.1

                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge




       1
         Because Davis has failed to show a likelihood of success on the merits, his
motion for preliminary injunction is denied. See Munaf v. Geren, 553 U.S. 674, 690
(2008) (“[A] party seeking a preliminary injunction must demonstrate, among other
things, a likelihood of success on the merits.” (quotation omitted)).


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