                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 10 2005
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


GEORGE H. SMITH, JR.,

          Plaintiff-Appellant,

v.

CHARLES E. SIMMONS;
WILLIAM L. CUMMINGS; ROBERT
SAPIEN; MARGARET ADAMSON;
                                                       No. 04-3264
RONALD DOW,
                                                   (District of Kansas)
                                               (D.C. No. 03-CV-3203-GTV)
          Defendants,

and

(FNU) HARE, also known as (FNU)
Bitler; DEBRA WHEAT; JOY
FOGLE,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this court 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.

      George Smith appeals the district court’s sua sponte dismissal, upon initial

review pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), of his 42 U.S.C. § 1983 civil

rights complaint. This court reviews de novo the district court’s sua sponte

dismissal of a complaint pursuant to § 1915(e)(2)(B)(ii) for failure to state a

claim upon which relief can be granted. Perkins v. Kan. Dep’t of Corr., 165 F.3d

803, 806 (10th Cir. 1999). Upon consideration of the parties’ briefs and

contentions, the entire record on appeal, and de novo review of the district court’s

order, this court concludes that the district court did not err in dismissing Smith’s

complaint.

      The district court is AFFIRMED for substantially those reasons set out in

the district court’s order dated August 27, 2003. Smith’s Motion for Physical and

Mental Examination is DENIED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge



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