                                                                 FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                         January 27, 2010
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                           Clerk of Court
                               TENTH CIRCUIT




DARRYL WAYNE MANCO,
                                                  No. 09-3251
              Plaintiff-Appellant,
                                                  (D. of Kan.)
v.                                         (D.C. No. 08-CV-03205-SAC)
JOHN/JANE DOES (1), employed as
Mail Room Employees by the Kansas
Department of Corrections S.A.T.P.
and Kansas Bureau of Investigations,
in their individual and official
capacities; S. BUSER, employed as
Mail Room Supervisor, El Dorado
Correctional Facility, in her individual
and official capacity; JJ SMITH,
employed as Sergeant of Intelligence
Investigation, El Dorado Correctional
Facility, in his individual and official
capacity; T. J. HERMECK, employed
as Lieutenant of Intelligence
Investigation, El Dorado Correctional
Facility, in his individual and offical
capacity; MIKE MYERS, employed as
former Facility Specialist, El Dorado
Correctional Facility, in his individual
and official capacity; DEBBIE
BRATTON, employed as Deputy
Warden of Operations, El Dorado
Correctional Facility, in her individual
and official capacity; JOHN A.
SCHELL, employed as a psychologist
at the Topeka Diagnostic Center, in
his individual and official capacity;
JOHN SHULL, doctor, employed as a
Dentist at Ellsworth Correctional
Facility, in his individual and official
capacity; JOHN/JANE DOES (2),
employed as (former) Chief Security
Officers of Intelligence Investigation,
Lansing Correctional Facility, in their
individual and official capacity;
JOHN/JANE DOES (3), employed as
(former) Directors of Enforcement,
Apprehension and Investigation, in
their individual and official capacity;
ROGER BONNER, employed as
(former) Chief Security Officer of
Intelligence Investigation, Lansing
Correctional Facility, and currently
employed as Director of Enforcement,
Apprehension and Investigation, in his
individual and official capacity; JOHN
LAMB, employed as Director of
Enforcement, Apprehension and
Investigation, in his individual and
official capacity; RAY LOWERY,
Administrative Executive for
D.C.C.C.A., Director of Correctional
Programs, in his individual and
official capacity; BARBARA
OWENS, employed as (former)
Director of S.A.T.P./D.C.C.C.A.,
currently employed as Director of
Quality Assurance for D.C.C.C.A., in
her individual and official capacity;
RICK KENDALL, employed as
Director of S.A.T.P./D.C.C.C.A.,
Lansing Correctional Facility, in his
individual and official capacity; JOHN
BECHTOLD, employed as (former)
SST, Lansing Correctional Facility, in
his individual and official capacity;



                                           -2-
DAVID R. MCKUNE, Warden,
Lansing Correctional Facility, in his
individual and official capacity;
ROBERT HANNIGAN, employed as
(former) Warden, Hutchinson
Correctional Facility, in his individual
and official capacity; MICHAEL
NELSON, employed as (former)
Warden, El Dorado Correctional
Facility, in his individual and official
capacity; RAYMOND ROBERTS,
employed as Warden, El Dorado
Correctional Facility, in his individual
and official capacity; (FNU) LYONS,
employed as (former) Lieutenant of
Intelligence Investigation, Hutchinson
Correctional Facility, in her individual
and official capacity; JOHN/JANE
DOES (4), employed as (former)
Deputy Wardens of Operations,
Lansing Correctional Facility, in their
individual and official capacities;
JOHN/JANE DOES (5), employed as
(former) Information Resource
Managers, Information Technology
Department, in their individual and
official capacities; CHARLES
SIMMONS, employed as (former)
Secretary of Corrections, currently
employed as Resource Manager,
Information Technology Department,
in his individual and official capacity;
ROGER WERHOLTZ, employed as
Secretary of Corrections, in his
individual and official capacity;
WILLIAM CUMMINGS, employed as
Secretary of Corrections Designee, in
his individual and official capacity;




                                           -3-
 JOHN/JANE DOES (6), Kansas
 Bureau of Investigation, in their
 individual and official capacities;
 KATHLEEN SEBELIUS, Kansas
 Governor, in her individual and
 official capacity,

                Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Darryl Wayne Manco, a Kansas state prisoner proceeding pro se, brings a

host of civil rights claims under 42 U.S.C. § 1983. Manco’s claims center on his

allegation that prison officials implanted a radio frequency device in his body to

track his movements and thoughts, among other things. The district court

dismissed Manco’s case as frivolous and denied him leave to proceed on appeal in

forma pauperis.




      *
         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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

                                         -4-
      Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s dismissal, find Manco’s appeal frivolous, and assess two strikes against

him pursuant to 28 U.S.C. § 1915(g).

                                  I. Background

      Manco’s 49-page complaint describes a “myriad of horrible conditions”

arising from his incarceration. R., Vol. 3 at 89. Manco alleges that prison

officials have implanted a tracking device in his jaw, and are engaging in a series

of unlawful rehabilitation methods. He also claims that prison officials

intercepted and destroyed his mail when he attempted to reveal these practices.

He frames a retaliation claim because mental health staff ordered him to be

transferred to several different prisons and otherwise denied him privileges and

parole after he made public his claims of mistreatment. These actions amount to

violations of his First, Eighth, and Fourteenth Amendment rights, he claims.

      The district court dismissed Manco’s claims. The court held his mail

interference claims were both time barred and not well pleaded. Next, it found

Manco’s claims relating to the tracking device had no factual basis, and therefore

it dismissed them as frivolous. Finally, in as much as Manco brought habeas

claims, the district court dismissed them without prejudice because they were

improperly framed as civil rights claims.

      Manco appeals the dismissal, relying on substantially the same arguments

and evidence he presented to the district court.

                                         -5-
                                   II. Discussion

      We review a district court’s dismissal of a frivolous claim for an abuse of

discretion. McWilliams v. Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997). A

complaint or appeal is frivolous when it “lacks an arguable basis either in law or

in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). We find the district

court committed no error when it dismissed Manco’s claims as frivolous.

      The district court did not abuse its discretion when it held Manco’s claims

of mail interference were frivolous. Although Manco filed numerous complaints

about mail interference with prison management, a legal services provider at the

prison and the warden concluded that Manco’s mail had been delivered properly.

Indeed, the appeal record shows that the person with whom Manco was

corresponding sent many letters to Manco over several years that verified the

receipt of Manco’s letters.

      Even if Manco explained who interfered with his mail or what mail was

interfered with, his mail-related claims are time barred. Liberally construed,

Manco’s complaint alleges mail interference as late as 2005. The statute of

limitations for a § 1983 action in Kansas lapsed in 2007, a year before Manco

filed this case. See Wilson v. Garcia, 471 U.S. 261, 276 (1985) (holding § 1983

actions are governed by state statute of limitations for personal injury); K AN .

S TAT . § 60-513(a) (providing a two-year statute of limitations).




                                          -6-
      The district court also did not abuse its discretion when it held Manco’s

claims related to the alleged tracking device were frivolous. Manco’s theory that

numerous state officials monitor his thoughts and send him inaudible, profane

messages is not supported by any evidence. Manco provides citations to various

patents and secondary literature that describe tracking devices. Even if, for the

sake of argument, this court assumes that such devices exist, Manco fails to

provide evidence that officials implanted a device in his body, nor does he give a

plausible motive for state officials to embark on such an endeavor. We agree

with the district court that Manco’s tracking device claims are frivolous. See

Denton v. Hernandez, 504 U.S. 25, 33 (1992) (describing frivolous claims as

“fanciful,” “fantastic,” and “delusional,” and holding “a finding of factual

frivolousness is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible, whether or not there are judicially noticeable

facts available to contradict them”).

      Finally, in so far as Manco seeks parole and credit for good behavior, his

claims are not properly brought under § 1983. The Supreme Court has made clear

that a “§ 1983 action will not lie when a state prisoner challenges the fact or

duration of his confinement and seeks either immediate release from prison or the

shortening of his term of confinement.” Wilkinson v. Dotson, 544 U.S. 74, 79

(2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 482, 489 (1973)) (internal




                                          -7-
citations and punctuation omitted). Instead, prisoners must seek either federal

habeas corpus relief or relief under state law. Id. at 78.

                                  III. Conclusion

      We dismiss Manco’s appeal as frivolous, and assess two strikes against him

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

Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the

appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B),

both dismissals count as strikes.”). Manco’s motion for leave to file a

supplemental brief is denied. Manco’s application to appeal in forma pauperis is

denied, and the full amount of his filing fee should be paid immediately.


                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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