                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 27 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    CLARENCE L. FREY,

                Plaintiff - Appellant,

    v.                                                    No. 01-1521
                                                      (D.C. No. 00-B-120)
    MARK MCKINNA, CSC,                                   (D. Colorado)

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before HENRY and HOLLOWAY , Circuit Judges, and               BRORBY , Senior
Circuit Judge.



         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.




*
      This order and judgment is not binding precedent, except under the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.
       Plaintiff-appellant Clarence Lee Frey, a state prisoner in Washington,

appeals an order of the district court dismissing his civil rights action for failure

to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.

12(b)(6). The district court also denied Mr. Frey’s motion to proceed on appeal in

forma pauperis (IFP) pursuant to 28 U.S.C. § 1915, certifying that the appeal was

not taken in good faith.   See § 1915(a)(3). Mr. Frey renews his § 1915 motion in

this court. Because we find that Mr. Frey’s appeal is frivolous, we deny his

motion to proceed IFP and dismiss his appeal.

       Mr. Frey sued defendant under 42 U.S.C. § 1983 alleging violation of his

rights under the Eighth and Fourteenth Amendments in conjunction with his

transfer to and treatment at the Crowley County Correctional Facility (CCCF) in

Colorado. Defendant was the warden at CCCF.

       The court ordered Mr. Frey to amend his complaint to include allegations of

personal participation by defendant. When Mr. Frey was unable to demonstrate

any affirmative link between the alleged constitutional violations and any

“personal participation, [] exercise of control or discretion, or [] failure to

supervise on the part of defendant,”    see Holland ex rel. Overdorff v. Harrington    ,

268 F.3d 1179, 1187 (10th Cir. 2001),     cert. denied , 122 S. Ct. 1914 (2002), the

district court correctly dismissed the complaint under Rule 12(b)(6) for failure to

state a claim.


                                            -2-
       In addition to objecting to the dismissal of his complaint, which we

determine to have been correct, Mr. Frey makes several other points we will

address briefly. Mr. Frey argues that the district court should have either

appointed an attorney or appointed a guardian ad litem to represent him. There is

no right to an attorney in § 1983 actions.    See United States v. Gosnell , 961 F.2d

1518, 1521 (10th Cir. 1992) (noting no constitutional right to appointed counsel

in a civil case). Further, there is no indication in the record that Mr. Frey

requested the appointment of a guardian ad litem in the district court. We will

therefore not consider whether such an appointment would have been appropriate.

See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (noting

general rule that issues not raised in the district court will not be considered on

appeal).

       Mr. Frey argues that he should be allowed to amend his complaint yet

again. We agree with the district court, however, that, because Mr. Frey has now

twice failed to make the required allegations and makes no showing that a third

attempt would be any more successful, amendment would not cure the defects in

his complaint and would be futile.     See Gaines v. Stenseng , 292 F.3d 1222, 1224

(10th Cir. 2002). As for Mr. Frey’s position that the district court incorrectly

granted immunity to defendant, we note that the district court did not do so; it

dismissed the complaint well before any immunity analysis was necessary.


                                             -3-
      Finally, Mr. Frey attempts to resurrect his claims against other defendants

who have been dismissed in prior orders. Mr. Frey’s notice of appeal, however,

appeals only from the order of October 25, 2001, dismissing defendant McKinna.

A notice of appeal must “designate the judgment, order, or part thereof being

appealed.” Fed. R. App. P. 3(c)(1)(B). Even if the notice of appeal had

referenced the orders dismissing the other defendants, however, our review of the

complaint and amended complaint in this case convinces us that all prior

dismissals were correct.

      For the reasons stated above, we DENY Mr. Frey’s motion to proceed IFP

under § 1915(a)(1) because his appeal is frivolous, and we DISMISS his appeal.

See § 1915(e)(2)(B)(i). The dismissal of this frivolous appeal is a strike for

purposes of 28 U.S.C. § 1915(g).   See Jennings v. Natrona County Det. Ctr. Med.

Facility , 175 F.3d 775, 781 (10th Cir. 1999). The mandate shall issue forthwith.

                                                             Entered for the Court



                                                             Wade Brorby
                                                             Senior Circuit Judge




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