                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                        August 22, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk



 JOSEPH CURIALE,

          Plaintiff-Appellant,

 v.                                                    No. 05-4075
                                               (D.C. No. 2:04-CV-1154-TC)
 EDWIN PETERSON, Uintah County                            (Utah)
 Attorney; DUSTIN CHESIRE, Uintah
 County Deputy,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Joseph Curiale, proceeding pro se and in forma pauperis, filed a civil

complaint against various Utah state officials alleging violations under 42 U.S.C.

§ 1983, § 1985, and state laws. The district court dismissed the case without

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
prejudice pursuant to a prior district court order imposing filing restrictions on

Mr. Curiale. Construing his complaint liberally, see Haines v. Kerner, 404 U.S.

519, 520-21 (1972), we affirm.

       On January 27, 2005, Chief Judge Dee Benson of the United States District

Court for the District of Utah ordered that Mr. Curiale be “enjoined from filing

any motions, including new actions, in District Court without leave of the Chief

Judge of the District.” Rec., doc. 8 at 1. The order further directed that “any

filing submitted without leave of the Chief Judge of the Court . . . may be

dismissed in the discretion of the presiding judge.” Id. Mr. Curiale was placed

on the district court’s “Restricted Filer List,” effective December 8, 2004.

       Mr. Curiale did not seek leave of Chief Judge Benson to bring the current

law suit. In dismissing the case, the district court stated:

       Because Mr. Curiale’s action in the above-captioned matter was filed after
       December 8, 2004, and because there is no evidence in the record that
       Chief Judge Benson provided leave to Mr. Curiale to file this matter, the
       court, in its discretion, hereby dismisses the case without prejudice. If Mr.
       Curiale wishes to re-file his action, he must obtain leave from Chief Judge
       Benson first.

Id. at 1-2.

       As best we can discern from Mr. Curiale’s handwritten brief, he is

appealing because he claims his suit is justified and he seeks review of the merits

of his case, as well as appointment of legal counsel and a preliminary injunction.

If Mr. Curiale’s intent on appeal is to dispute the district court’s filing

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restrictions, the appropriate channel for review was an appeal from the order itself

that established the restrictions. See Werner v. Utah, 32 F.3d 1446, 1448 (10th

Cir. 1994). In addition, under 28 U.S.C. § 1915(e)(2)(B), we may dismiss a case

if we determine the appeal is frivolous or fails to state a claim on which relief

may be granted. On review of the record on appeal, we have determined that Mr.

Curiale has made only conclusory and frivolous allegations which are unsupported

by facts and do not merit reversal of the district court’s decision in the instant

action.

      Mr. Curiale alleges that defendants violated his civil rights by conspiring to

frame him, threatening to have him committed to a mental institution, seeking

discovery against him that besmirched his character, infringing on his freedom in

an unnamed manner in 1996 and 1997, and conspiring with his neighbors to

corrupt children and invade his privacy. Several of Mr. Curiale’s claims are

similar to those he recently raised unsuccessfully before this court. See Curiale v.

Walker, No. 05-4054, 2005 WL 1332350, at *1-2 (10th Cir. June 7, 2005)

(finding legally frivolous and conclusory Mr. Curiale’s claims that Governor of

Utah promoted and protected illegal corruption and prostitution of minors and that

neighbors violated privacy of his home and corrupted minors); Curiale v.

Hawkins, No. 04-4289, 2005 WL 1181145, at *1 (10th Cir. May 19, 2005)

(affirming as time-barred and insufficient Mr. Curiale’s claims that Uintah



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County Sheriff and County Deputy framed him for unnamed actions and had him

committed to mental institution in 1996 and 1997, and that County Deputy

threatened him by saying “Go in your house now or I’ll take you in.”). As in

Walker, Mr. Curiale has made only conclusory and frivolous allegations in this

case. He has presented no facts or legal arguments to demonstrate how

defendants conducted any conspiracies, what threats they made, if any, and the

nature of the alleged discovery violations. To the extent he seeks to raise claims

we have decided previously, he is barred from doing so.

      We DISMISS Mr. Curiale’s case as frivolous under § 1915(e)(2)(B), and

DENY his request for appointment of counsel.

                                       SUBMITTED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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