                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUN 29 2004
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 BENNY R. SMITH,

          Plaintiff-Appellant,
 v.                                                          No. 04-3043
 LOUIS E. BRUCE, Warden, Hutchinson                 (D.C. No. 03-CV-3242-GTV)
 Correctional Facility; D. A. SCHNURR,                      (D. Kansas)
 Unit Team Manager, Hutchinson
 Correctional Facility; C. RUDICEL, Unit
 Team CCI, Hutchinson Correctional
 Facility; WAYNE BRAUWNER, Deputy
 Warden, Hutchinson Correctional Facility;
 S. CLINE, Deputy Warden, Hutchinson
 Correctional Facility; (FNU) BODY,
 Internal Investigator, Hutchinson
 Correctional Facility; R. VIEYRA, Unit
 Team Manager, Hutchinson Correctional
 Facility,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Benny R. Smith, a Kansas state prisoner appearing pro se and proceeding in forma

pauperis, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291, and dismiss the appeal as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

       Smith filed his § 1983 complaint alleging that various officials at Hutchinson

Correctional Facility (HCF) violated his constitutional rights by tampering with his

outgoing mail. In particular, he complained that defendants routinely delayed or

destroyed his outgoing mail, including letters intended for state and federal courts. To

support his allegations, Smith asserted he had not received replies from the courts for

each piece of correspondence he mailed to the courts. Although he acknowledged

receiving several memos from the federal district court in Kansas, and attached copies of

those memos to his complaint, he asserted they were forgeries given to him by

defendants. He also asserted that defendants forged other items, including “Return to

Sender” stamps on various envelopes he attempted to mail. The district court dismissed

Smith’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim

upon which relief could be granted, stating:


                                               2
       [P]laintiff’s assertions of interference with his legal mailings are entirely
       speculative, and his claim that the memoranda issued by the clerk of this
       court are forgeries perpetrated by corrections employees is patently
       frivolous. The materials before the court include copies of correspondence
       to plaintiff from counsel appointed in his direct criminal appeal, the warden,
       and the state and federal courts. There is no material before the court which
       reasonably supports plaintiff’s allegation of interference with his access to
       the courts.

ROA, Doc. 20 at 3.

       We review de novo an order dismissing a prisoner’s § 1983 complaint for failure

to state a claim under §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See McBride v. Deer, 240

F.3d 1287, 1289 (10th Cir. 2001). Like the district court, we are bound to construe pro se

pleadings liberally, applying a less stringent standard than to formal pleadings drafted by

lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, we are not “bound

by conclusory allegations, unwarranted inferences, or legal conclusions” contained in

those pro se pleadings. See Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994).

       Applying these standards to the pleadings filed by Smith in this case, we agree

with the district court that he has failed to state a claim upon which relief can be granted.

In particular, we conclude no reasonable finder of fact could find, in light of the various

exhibits submitted by Smith, that defendants tampered with his mail or prepared and sent

forged documents to him. To the contrary, the exhibits clearly demonstrate that Smith’s

mail was, in fact, sent out of the prison by HCF officials and, in many instances, he

received responses from the courts. Lastly, there is nothing in the record indicating that

any ongoing litigation being pursued by Smith in state or federal court has been affected

                                              3
by the alleged actions of defendants. See Lewis v. Casey, 518 U.S. 343, 350-55 (1996)

(noting that, to establish a claim of denial of access to courts, prisoner must show actual

injury).

       The appeal is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

Dismissal of Smith’s appeal as frivolous counts as a strike against him, as does the district

court’s dismissal of his complaint. See 28 U.S.C. § 1915(g); Jennings v. Natrona County

Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). All pending motions are

DENIED. We remind Smith of his obligation to continue making partial payments of the

appellate filing fee until paid in full.

                                           Entered for the Court

                                           Mary Beck Briscoe
                                           Circuit Judge




                                              4
