                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 5, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    EARL CROWNHART,

                Plaintiff–Appellant,

    v.                                                    No. 08-1483
                                                (D.C. No. 1:08-CV-02009-ZLW)
    GARY SULLIVAN;                                         (D. Colo.)
    SGT. BLATTNER; SGT. LOYD;
    SGT. CEDENA; LARRY REID;
    SGT. KAUFFMAN,

                Defendants–Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.



         Earl Crownhart, a Colorado state prisoner proceeding pro se, filed a 42

U.S.C. § 1983 action alleging that defendant warden and prison guards violated

several of his constitutional rights. The district court dismissed the action as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and denied Crownhart’s motion to


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
proceed on appeal in forma pauperis (“IFP”). For substantially the same reasons

stated by the district court, we conclude that both Crownhart’s claims and this

appeal are frivolous. Exercising jurisdiction under § 1291, we dismiss this

appeal, deny Crownhart’s IFP motion, and assess two strikes under § 1915(g).

                                         I

      After reviewing Crownhart’s complaint under the screening function set

forth in § 1915A(a), a magistrate judge ordered Crownhart to file an amended

complaint explaining who personally participated in each alleged constitutional

deprivation, what each defendant did to him and when, how the actions harmed

him, and what specific legal rights he believed defendants violated. The

magistrate judge warned Crownhart that failing to comply with the order could

result in dismissal.

      Crownhart timely filed an amended complaint setting forth three claims for

relief. In his first claim, Crownhart alleged that defendant Sullivan violated his

Eighth Amendment rights by verbally harassing him and by attempting to place

him in a seating area in the prison chow hall where he could have been injured by

other inmates, and that defendants Blattner and Loyd violated his due process

rights because they were aware of and acquiesced in Sullivan’s acts. In his

second claim, Crownhart alleged that defendant Cedena violated his First

Amendment rights by crossing out the zip code on a letter he mailed and by

opening legal mail without his permission, and that defendant Reid failed to

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investigate the latter incident. Lastly, Crownhart alleged that defendant

Kauffman violated his Eighth Amendment rights by staring at him for five

minutes while he was tied down in his bed with his legs spread apart, wearing

only boxer shorts and a “croch [sic] strap.”

        The district court dismissed each of Crownhart’s claims. As to the first, the

court held that Crownhart’s allegations failed to state an Eighth Amendment

claim because he did not allege physical injury, his assertion that Sullivan’s

actions put him at risk of serious bodily injury was conclusory and vague, and

there was no support for his contention that Sullivan used excessive force. See,

e.g., Hudson v. McMillian, 503 U.S. 1, 9 (1992) (requiring “extreme

deprivations” for viable conditions of confinement claim); Northington v.

Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (recognizing that “verbal threats

and harassment” are generally “excluded from the cruel and unusual punishment

inquiry”). The court did not discuss the due process claim against Blattner and

Loyd.

        With respect to Crownhart’s second claim, the district court determined that

crossing out a zip code did not rise to the level of a constitutional deprivation

because the mail was not opened. As to the legal mail that defendant Cedena

allegedly opened, the court noted Crownhart’s admissions that he sustained no

harm and that the incident was isolated. The court accordingly concluded that the




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incident fell short of a constitutional violation. It did not discuss the

failure-to-investigate claim against Cedena and Reid.

      Finally, the court dismissed the third claim because Crownhart did not

allege that Kauffman approached him or made any statements to him of a sexual

nature and because Crownhart conceded that Kauffman was conducting a welfare

check. Accordingly, the court ruled, Kauffman’s alleged conduct was not

objectively severe enough to constitute an Eighth Amendment violation. See

Hudson, 503 U.S. at 8-9. Based on these determinations, the district court

dismissed Crownhart’s amended complaint as frivolous under § 1915(e)(2)(B)(i).

This appeal followed.

                                           II

      A claim is frivolous under § 1915 if it “lacks an arguable basis either in law

or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “We generally

review a district court’s dismissal for frivolousness under § 1915 for abuse of

discretion.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). However, if

a “frivolousness determination turns on an issue of law,” our review is de novo.

Id. Courts are not required to accept all factual allegations as true in reviewing a

complaint under § 1915, but our assessment of the allegations “must be weighted

in favor of the plaintiff.” See Denton v. Hernandez, 504 U.S. 25, 32 (1992).

      On appeal, Crownhart presents no cognizable argument that the district

court erred. Even taking into account his pro se status and the liberal reading to

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which his filings are entitled, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th

Cir. 2008), Crownhart provides us with no basis to reverse. Therefore, for

substantially the same reasons stated by the district court, we conclude that

Crownhart’s claims, as well as this appeal, are frivolous under

§ 1915(e)(2)(B)(i). 1

      Accordingly, we dismiss this appeal and assess two strikes under § 1915(g).

See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780

(10th Cir. 1999). We remind Crownhart that if he accrues three strikes, he may

no longer proceed IFP in any civil action filed in federal court unless he is in

imminent danger of physical injury. § 1915(g). We further deny Crownhart’s

motion to proceed IFP on appeal, see McIntosh v. U.S. Parole Comm’n, 115 F.3d

809, 812 (10th Cir. 1997), and direct him to make full payment of the $455.00

appellate filing fee immediately. Crownhart’s motion to compel a response is

denied.

                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge

1
       As noted above, the district court did not directly address Crownhart’s
allegation that Blattner and Loyd violated his due process rights by failing to stop
Sullivan’s actions in the chow hall or Crownhart’s allegation that Cedena and
Reid failed to investigate the opening of his legal mail. Because the underlying
claims against Sullivan and Cedena are frivolous, we conclude that so too are the
related claims against Blattner, Loyd, Cedena, and Reid.

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