                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                          August 20, 2010

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 J.C. BERRY,

        Plaintiff - Appellant,                              No. 09-6268
                                                     (D.C. No. 5:09-CV-01014-D)
 v.                                                         (W.D. Okla.)

 OKLAHOMA DEPARTMENT OF
 CORRECTIONS, JUSTIN JONES,
 MIKE ADDISON, MICHAEL
 JACKSON, GLENDA LEE, THOMAS
 JOHNSTON, STATE OF OKLAHOMA,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before KELLY, EBEL and LUCERO, Circuit Judges.



       Plaintiff-Appellant J.C. Berry, an inmate in the custody of the Oklahoma

Department of Corrections (“DOC”), appeals from the dismissal of his civil action

brought against the State of Oklahoma, the DOC and five DOC employees. We affirm.

       * 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       Berry alleged two claims under 42 U.S.C. § 1983. First, he claimed that

Defendants were deliberately indifferent to his serious medical needs, in violation of the

Eighth Amendment. In support of that claim, Berry alleged: He had been receiving

prescription medication for his sinus condition; a nurse informed him that the prescription

for that medication was about to expire and he would need to renew it by completing a

form entitled “Request for Service”; Berry believed he did not have to fill out such a form

and so he, instead, filled out a form entitled “Request to Staff”; because he refused to fill

out the “Request for Service” form, prison officials did not renew Berry’s prescription.

       Second, Berry claimed that Defendants conspired to deprive him of his rights to

redress and access to the courts protected by the First and Fourteenth Amendments. In

support of that claim, Berry alleged that, after he was denied his prescription sinus

medication, he filed administrative grievances which went unanswered or were answered

in an untimely manner.

       The district court dismissed Berry’s action under 28 U.S.C. § 1915A(b)(1),

without prejudice to his filing a new action.1 Berry now challenges that decision on

appeal.

       Section 1915A(b)(1), in pertinent part, permits the district court to dismiss an

inmate’s complaint if it “fails to state a claim upon which relief may be granted.” “We

1
 Because it appears that the “‘district court order expressly and unambiguously
dismisse[d] [the] entire action, th[is] order is final and appealable.’” Phillips v. Humble,
587 F.3d 1267, 1271 (10th Cir. 2009) (quoting Moya v. Schollenbarger, 465 F.3d 444,
450 (10th Cir. 2006)).

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review de novo the dismissal of an action under 28 U.S.C. § 1915A for failure to state a

claim.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). In conducting such

review, “[w]e must accept all the well-pleaded allegations of the complaint as true and

must construe them in the light most favorable to the plaintiff.” Id. (quotation omitted).

“We review the complaint for plausibility; that is, to determine whether the complaint

includes enough facts to state a claim to relief that is plausible on its face.” Id. (quotation

omitted). Because Berry is acting pro se, we liberally construe his pleadings. See Haines

v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).

       For substantially the reasons stated in the district court’s decision, we AFFIRM

the dismissal of Berry’s § 1983 action. We also DENY his request of this court for entry

of default.2

                                            ENTERED FOR THE COURT




                                            David M. Ebel
                                            Circuit Judge



2
  In March 2010, Berry filed with this court “An affidavit for Entry of Default.” In that
document, he argued that, because Defendants had failed to file a response to his opening
appellate brief, he was entitled to an entry of default under Fed. R. Civ. P. 55(a). The
reason Defendants did not file an appellate brief, however, was because they were never
served with the complaint while Berry’s action was pending in district court. The district
court, instead, acting pursuant to 28 U.S.C. § 1915A(b)(1), dismissed Berry’s action
before ever ordering service on Defendants. So there is no default, in the district court or
on appeal.
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