                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 23 2000
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    KEVIN THOMAS FORD,

                Plaintiff-Appellant,

    v.                                                 No. 99-6377
                                                   (D.C. No. 97-CV-233)
    ROGER CUMMINGS, C.O.;                              (W.D. Okla.)
    DOUGLAS WETTLAUFER, C.O.,

                Defendants-Appellees

          and

    KATHLEEN HAWK; JOHN DOE,
    Unknown Correctional Officer for the
    Federal Transfer Center; LEON
    BALL,

                Defendants.


                              ORDER AND JUDGMENT        *




Before BALDOCK , KELLY , and HENRY , 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      This order and judgment is not binding precedent, except under the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.

      Following a bench trial on plaintiff Kevin Thomas Ford’s claim that

defendant correction officers Cummings and Wettlaufer subjected him to cruel

and unusual punishment in violation of the Eighth Amendment while he was

incarcerated at the Federal Transfer Center in Oklahoma City, the district court

entered judgment in favor of defendants. Although represented by counsel at

trial, the district court granted counsel’s motion to withdraw after counsel stated

he saw no meritorious grounds for appeal. Plaintiff therefore proceeds on appeal

pro se.

      In this action brought pursuant to   Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics , 403 U.S. 388 (1971), plaintiff alleged that

Cummings entered his cell and beat him with a ring of jailer’s keys and that

Wettlaufer observed the incident, but did not intervene on plaintiff’s behalf.

During plaintiff’s testimony at trial, plaintiff’s counsel showed plaintiff a ring of

jailer’s keys introduced as evidence by defendants and the following colloquy

ensued:

      Q. Does this look like the keys [Cummings] had in his hand that
      day?

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      A. Similar. All those guys wear pretty much the same thing.

      Q. Do you remember how many keys he had?

      A. No, not really. I couldn’t tell you. I don’t exactly know.

Trial tr. at 18 (attachment A to appellees’ brief). On appeal, plaintiff contends

that the ring of keys introduced at trial contained twenty to twenty-five keys, but

that the ring Cummings actually used to beat him contained only four keys. He

contends that defendants “fraudulently manufactured” the ring of keys introduced

at trial and that the court’s consideration of this evidence is reversible error. He

also contends that his counsel provided constitutionally ineffective assistance in

failing to object to the introduction of the keys and to question any witnesses

regarding the number of keys on the actual ring Cummings allegedly used.

      Ordinarily, this court would review plaintiff’s first issue, which we

construe as a challenge to the district court’s admission of evidence, for abuse of

discretion. See, e.g. , Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995).

Here, however, there was no objection to the introduction of the evidence.

Assuming we would review the issue for plain error,      see Fed. R. Evid. 103(d), it

is clear there was no error--plaintiff’s own testimony quoted above belies his

contention of impropriety on the admission of the ring of keys.     Cf. Koch v. Koch

Indus., Inc. , 203 F.3d 1202, 1215 (10th Cir. 2000) (“The invited error doctrine

prevents a party from inducing action by a court and later seeking reversal on the


                                           -3-
ground that the requested action was error.”) (quotation omitted),    petition for

cert. filed , 68 U.S.L.W. 3023 (U.S. July 3, 2000) (No. 00-28).

       While the factual basis for plaintiff’s second claim is also contradicted by

his own trial testimony, even more importantly, this claim fails because plaintiff

has no constitutional right to counsel in a    Bivens action. See MacCuish v. United

States , 844 F.2d 733, 735 (10th Cir. 1988).

       We conclude this appeal lacks any arguable basis in law or fact, and deem

it to be frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The appeal is hereby

DISMISSED as frivolous pursuant to § 1915(e)(2)(B), and this dismissal counts

as a strike pursuant to § 1915(g). Plaintiff’s request for a copy of the trial

transcript at no charge is DENIED. The mandate shall issue forthwith.



                                                        Entered for the Court



                                                        Bobby R. Baldock
                                                        Circuit Judge




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