                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            MAY 20 2005
                                  TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

 DANNY R. FISH,

         Plaintiff - Appellant,

 v.
                                                          No. 04-1294
 GARY GOLDER, Sterling                                   (D. Colorado)
 Correctional Facility; PAUL KLINE,                  (D.Ct. No. 04-Z-1046)
 Captain, Casemanager III, Sterling
 Correctional Facility; J. YATES, LT.,
 Classification Chairman, Living Unit
 Supervisor; C. THOMAS, LT., Living
 Unit 3 Supervisor, Sterling
 Correctional Facility,

         Defendants - Appellees.
                        ____________________________

      ORDER DENYING REQUEST TO PROCEED IN FORMA PAUPERIS


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



        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 F ED . R. A PP . P. 34(a)(2); 10th Cir. R. 34.1.(G). The case is

therefore ordered submitted without oral argument.

        Appellant Danny Fish is confined in the custody of the Colorado
Department of Corrections for violating the conditions of his parole. He seeks

leave to proceed on appeal in forma pauperis (ifp). We deny his request.

      While detained at the prison facility in Sterling, Colorado, Fish was

charged with violating a posted operational rule when he was observed using a

“cheat sheet” during a computer class. He was convicted of the offense at an

informal hearing and was sanctioned with fourteen days of extra duty and

fourteen days of confinement. On May 21, 2004, Fish filed a pro se complaint

pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 alleging, inter alia, his

confinement in a Level V facility and his transfer to a more restricted housing

unit within the facility without reclassification violated due process. A short time

later, he moved to amend his complaint to add claims under the Americans With

Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (“ADA”), and the

Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l. His motion to amend was

granted.

      Finding the amended complaint woefully inadequate, the magistrate judge

ordered Fish to submit another amended complaint within thirty days that would

meet the pleading requirements of Rule 8(a) of the Federal Rules of Civil

Procedure. 1 On the same day, Fish was granted leave to proceed ifp. In his third


      1
       FED. R. CIV. P. 8(a) provides in relevant part:

      A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain

                                             -2-
and final amended complaint filed on June 21, 2004, Fish abandoned his ADA

and Rehabilitation Act claims, returning to his initial theory of recovery—a

violation of due process based on his transfer to a higher security unit without

reclassification.

      On July 6, 2004, the district court dismissed, sua sponte, Fish’s final

complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). See

Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (holding that an action is

frivolous under § 1915(e)(2)(B)(i) if “the claim [is] based on an indisputably

meritless legal theory or if it is founded on clearly baseless factual contentions”)

(quotations omitted). The district court found Fish had not asserted a violation of

a constitutional liberty interest pursuant to Sandin v. Conner, 515 U.S. 472

(1995).

      Thereafter, Fish gave notice of his intent to appeal the district court’s

dismissal and requested the district court’s authorization to proceed ifp on appeal.

The district court denied his motion pursuant to § 1915(a)(3), finding his “appeal

was not taken in good faith because [he had] not shown the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” (Order Denying Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915



      statement of the grounds upon which the court’s jurisdiction depends . . . (2) a
      short and plain statement of the claim showing that the pleader is entitled to relief,
      and (3) a demand for judgment for the relief the pleader seeks.

                                             -3-
and F ED . R. A PP . P. 24 at 1.) Fish then filed this appeal, again moving to proceed



on appeal ifp.

       “An appeal may not be taken in forma pauperis if the trial court certifies in

writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Upon

consideration of the briefs, the record on appeal and the applicable law, we conclude

the district court correctly determined that Fish had failed to show the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues he

raises on a appeal. 2 Fish’s final complaint consists solely of conclusory allegations

and fails to present any legal theory or specific fact that could conceivably amount

to a constitutional violation. 3 Accordingly, we DENY his motion to proceed in

forma pauperis on appeal and ORDER that he pay the filing fee in full within

twenty days of this order or his appeal will be dismissed. 4

       2
        Appellant filed a motion for a default judgment pursuant to Rule 31(C) of the
Federal Rules of Appellate Procedure. Rule 31provides an Appellee may move for a
default judgment if the Appellant fails to file a timely brief. However, the rule also
provides that the consequences of the failure of an Appellee to file a brief is “he will not
be heard at oral argument unless the court grants permission.” There was no oral
argument in this case. Appellant’s motion is denied.
       3
          On appeal, Fish claims his reclassification has lengthened his parole sentence
beyond the limits of Colorado law. Not only is this argument unsupported by fact or law,
it is raised for the first time in this Court. We generally do not consider issues raised for
the first time on appeal. Parker v. Scott, 394 F.3d 1302, 1309 n.1 (10th Cir. 2005).
       4
        Section 1915(g) provides that a prisoner may not:


                                              -4-
                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




              bring a civil action or appeal a judgment in a civil action or
              proceeding [in forma pauperis] if the prisoner has, on 3 or
              more prior occasions, while incarcerated or detained in any
              facility, brought an action or appeal in a court of the United
              States that was dismissed on the grounds that it is frivolous,
              malicious, or fails to state a claim upon which relief may be
              granted, unless the prisoner is under imminent danger of
              serious physical injury.

       The district court’s dismissal of Fish’s complaint as frivolous counts as one strike
against him.

                                              -5-
