                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS October 6, 2010

                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court


    SHAYNE E. TODD,

                Plaintiff-Appellant,

    v.                                                    No. 10-4069
                                                 (D.C. No. 2:04-CV-00984-CW)
    TOM PATTERSON, Director, Utah                           (D. Utah)
    Department of Corrections; LOWELL
    CLARK, Director, Division of
    Institutional Operations of the Utah
    Department of Corrections; STATE
    OF UTAH,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.


         Shayne E. Todd, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his third amended civil rights complaint for failure to state a

claim under 28 U.S.C. § 1915(e)(2)(B)(ii) and for failure to comply with the


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
district court’s Order to Amend Deficient Complaint. We deny his motion to

proceed in forma pauperis (IFP) in this court and dismiss the appeal.

      Mr. Todd originally filed a complaint in this action in 2004 and then later

amended it. As amended, the complaint asserted that Officer Peterson, who

worked in the prison’s mail room, unconstitutionally denied Mr. Todd delivery of

five books that were, according to the prison’s denial notification slip, “of [a]

pornographic nature [with] no legit[i]mate literary value,” R., Vol. 1, Pt. 1 at 50

(first amended complaint), in violation of prison mail policies.

      The district court granted Officer Peterson summary judgment based on

qualified immunity; dismissed Mr. Todd’s claim for injunctive relief because

Officer Peterson lacked authority to grant the relief sought; and dismissed

Mr. Todd’s claim for declaratory judgment because Officer Peterson was not in a

position to defend the validity of prison regulations or state statutes. But instead

of dismissing the case in its entirety, the district court instructed Mr. Todd that if

he wanted “to pursue his claims for declaratory and injunctive relief he must

promptly[, within thirty days,] move to amend his Complaint to name a proper

defendant.” Id., Vol.1, Pt. 2 at 311. Mr. Todd did so.

      After the district court ordered service of the second amended complaint,

and the new defendants answered, the district court determined that the second

amended complaint was deficient. The court detailed the second amended

complaint’s deficiencies, told Mr. Todd how to cure the deficiencies, ordered the

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Clerk’s office to mail him a copy of the Pro Se Litigant Guide, and warned him

that if he failed to timely cure the noted deficiencies according to the court’s

instructions the action would be dismissed without further notice. The district

court gave Mr. Todd thirty days to comply with its Order to Amend Deficient

Complaint.

      The thirty-day deadline passed without Mr. Todd filing any materials. Two

months later, Mr. Todd moved for an extension of time to amend the second

amended complaint or, in the alternative, to strike the district court’s Order to

Amend Deficient Complaint. Then, without waiting for defendants’ response or

the court’s ruling on his motion for extension of time, Mr. Todd filed another

amended complaint—his third—naming Tom Patterson, Lowell Clark, and the

State of Utah as defendants. These defendants moved to dismiss for failure to file

in a timely manner and for failure to comply with the district court’s directives.

Mr. Todd did not respond to the defendants’ motion. Ultimately, the district court

granted the defendants’ motion and dismissed Mr. Todd’s third amended

complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) and for

failure to comply with the court’s Order to Amend Deficient Complaint. This

appeal followed.

      We review de novo the district court’s dismissal of a prisoner’s complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Kay v. Bemis,

500 F.3d 1214, 1217 (10th Cir. 2007). “[W]e must accept the allegations of the

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complaint as true and construe those allegations, and any reasonable inferences

that might be drawn from them, in the light most favorable to the plaintiff.” Id.

(quotation omitted). “[W]e look to the specific allegations in the complaint to

determine whether they plausibly support a legal claim for relief.” Id. at 1218

(quotation omitted). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Gallagher v. Shelton, 587 F.3d

1063, 1068 (10th Cir. 2009) (quotation omitted). We review for an abuse of

discretion the district court’s dismissal of an action for failure to comply with a

court order. Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1086 (10th Cir.

2008). “A district court abuses its discretion when its decision is based on a

clearly erroneous finding of fact or an erroneous conclusion of law or manifests a

clear error of judgment.” Id. (quotation omitted).

      In Mr. Todd’s pro se appellate brief, which we afford a liberal construction,

see Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), he repeats his

assertion that his First Amendment rights were violated when certain books were

not delivered to him. But the only statement he submits that even remotely

challenges the district court’s dismissal of his third amended complaint is his

contention that “[p]risoners are entitled to an opportunity to amend the complaint

to overcome the deficiency unless it clearly appears from the record and

complaint that the deficiency cannot be overcome.” Aplt. Opening Br. at 4.

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      Having reviewed the record, the parties’ appellate materials, and the

relevant legal authority, we hold that the district court’s dismissal order is

unassailably correct. Mr. Todd has not put forth a reasoned, non-frivolous

argument to the contrary, and we deny IFP and dismiss the appeal. See McIntosh

v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997); 28 U.S.C.

§ 1915(e)(2)(B)(i). Additionally, we note that because we are “dismiss[ing] 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” against Mr. Todd under

28 U.S.C. § 1915(g). Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d

775, 780 (10th Cir. 1999).

      We DENY IFP, DISMISS the appeal, and ORDER Mr. Todd to pay the full

appellate filing fee.

                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge




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