                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           OCT 11 2002

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                              Clerk



 RICKEY ROGERS,

          Plaintiff - Appellant,

 v.                                                     No. 02-1194
                                                    (D.C. No. 02-Z-248)
 RAY E. HOLT, Warden; W. CLARK,                        (D. Colorado)
 Unit Manager; C. SANTOS, Medical
 Physician Assistant,

          Defendants - Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


      Rickey Jerome Rogers challenges the decision of the district court

dismissing his Bivens action as frivolous. Mr. Rogers claims both that his due

process rights were violated and that he was subjected to cruel and unusual

      *
       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judgment is not binding precedent, except under the doctrines of law of the case,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.
punishment. On appeal, Mr. Rogers seeks to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915. For the reasons set out below, we deny the motion to

proceed without prepayment of fees and dismiss the appeal.

      Before we may grant Mr. Rogers’ motion to proceed in forma pauperis, we

must determine whether he is asserting nonfrivolous claims on appeal. 28 U.S.C.

§ 1915(e)(2). A claim is legally frivolous if the plaintiff asserts the violation of a

legal interest that does not exist, or asserts facts that do not support an arguable

claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989). It is important to note, of

course, that where the petitioner is proceeding pro se, as Mr. Rogers is in this

matter, the complaint must be construed liberally. Haines v. Kerner, 404 U.S.

519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      Mr. Rogers first asserts a violation of his due process rights, alleging that,

without providing him with an opportunity to be heard, prison staff denied him

recreation and gave him sack lunches instead of regular meals for a period of five

days. Because the interest he asserts does not fall into the categories of either a

life or a property interest, we presume Mr. Rogers seeks to assert a liberty

interest. But the denial of recreation and substitution of sack lunches for five

days does not impose an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life” under the standard established in

Sandin v. Conner, 515 U.S. 472, 484 (1995), for conditions-of-confinement


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claims. The facts Mr. Rogers alleges do not support an arguable due process

claim.

         Mr. Rogers also asserts a claim of cruel and unusual punishment based on

the same facts. In order to succeed on his cruel and unusual punishment claim,

Mr. Rogers must establish that the infringement of which he complains was

sufficiently serious. He must show that the deprivations were extreme, such that

he was denied a “minimal civilized measure of life’s necessities.” Wilson v.

Seiter, 501 U.S. 294, 298 (1991). Again, the denial of recreation and substitution

of sack lunches for five days simply does not rise to the severity required. The

facts alleged by Mr. Rogers do not support an arguable claim for cruel and

unusual punishment.

         Therefore we DENY Mr. Rogers’ motion for leave to proceed in forma

pauperis and DISMISS this appeal. Furthermore, we ORDER Mr. Rogers to pay

his unpaid balance due, and advise him that this constitutes a second strike

pursuant to 28 U.S.C. § 1915(g).

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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