                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               OCT 7 1997
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 CURTIS D. HORNE,

          Plaintiff - Appellant,

 v.
                                                          No. 97-1173
                                                       (D.C. No. 97-D-72)
 G. L. HERSHBERGER, ADX Warden;
                                                      (District of Colorado)
 DR. C.A. STRATMAN, Clinical
 Director; B. JETT, Medical
 Administrator,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, BALDOCK and LUCERO, Circuit Judges.


               Curtis D. Horne, a federal prisoner, appeals the district court’s denial

of his pro se civil rights complaint filed pursuant to Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In his

complaint, Mr. Horne alleged that defendants violated the Eight Amendment to



      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the United States Constitution by being “deliberately indifferent” to the “serious

medical need” posed by his hemorrhoids. See Estelle v. Gamble, 429 U.S. 97,

104-06.

      The district court denied Mr. Horne the relief he sought. Judge Daniel

found that appellant was proceeding in forma pauperis, then dismissed Mr.

Horne’s complaint sua sponte under the amended federal in forma pauperis

statute, 28 U.S.C. § 1915(e)(2)(B), as legally frivolous and for failing to state a

claim upon which relief might be granted.

      Reviewing the materials submitted by Mr. Horne, we are convinced that for

the reasons it stated, the district court was correct to find his claim frivolous and

legally insufficient. But the district court appears to have erred in finding that

appellant was proceeding in forma pauperis. The record before us indicates that

Mr. Horne paid the full filing fee on 31 January, 1997. Thus, the district court

erred in relying on 28 U.S.C. § 1915 to dismiss the appellant’s action. However,

this administrative error is of no consequence. We may affirm the district court

on any grounds supported by the record. See United States v. Sandoval, 29 F.3d

537, 542 n.6 (10th Cir. 1994). A district court may dismiss a claim sua sponte

when, as here, “it is patently obvious that the plaintiff could not prevail on the

facts alleged.” McKinney v. Oklahoma Dept. of Human Servs., 925 F.2d 363,

365 (10th Cir. 1991) (internal quotation and citation omitted). For the reasons


                                          -2-
stated by the district court, the allegations contained in Mr. Horne’s complaint are

entirely insufficient to support his claim.

      AFFIRMED. The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




                                          -3-
