                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     July 31, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court

 LO U IS J. M A LEK ,

       Plaintiff - Appellant,

 v.                                                    No. 05-4118
                                                          (Utah)
 M ARY BROCKBRADER; Utah State                 (D.Ct. No. 2:03-CV-461-TC)
 Prison Records; JU N E H IN CK LEY,
 Utah State Prison Records; CRAIG
 BALLS, Utah State Administration;
 C HERYL H A N SEN , D O N
 BLANCHARD, CURTIS GARNER,
 K EITH H A MILTO N , and M IK E
 SIBBETT, Utah Board of Pardons;
 JOHN GREEN, Administrator/Clerk
 for the U tah Board of Pardons &
 Parole,

       Defendants - Appellees.



                 OR D ER D ISM ISSING FRIVOLOUS APPEAL


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




      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.
      Louis Joseph M alek, a state prisoner proceeding pro se, 1 filed a prisoner

complaint pursuant to 42 U.S.C. § 1983 alleging a violation of his constitutional

rights arising from the denial of parole and his continuing incarceration on the

basis of inaccurate information contained in his record. The district court granted

M alek leave to proceed in form a pauperis (ifp). The court dismissed the

complaint on the basis of res judicata, and for failure to state a claim on which

relief could be granted, under 28 U.S.C. § 1915(e)(2)(B). M alek appealed, and

seeks leave to proceed on appeal ifp. See 28 U.S.C. § 1915(a)(1); F ED . R. A PP . P.

24(a)(5). Because M alek was granted permission to proceed ifp in the district

court, and the district court did not alter that status, his request to proceed ifp on

appeal is moot. His ifp status continues on appeal. See F ED . R. A PP . P. 24(a)(3).

Exercising jurisdiction under 28 U.S.C. § 1291, we DISM ISS this appeal as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(I).

                                      Background

      “M alek was originally incarcerated in M arch, 1983 on two counts of

aggravated robbery and attempted murder. For these crimes, he was sentenced to

five years to life with additional time of two to six years, to be served

consecutively, for firearm enhancements.” M alek v. Haun, 26 F.3d 1013, 1015

(10th Cir. 1994) (M alek I). M alek appeared before the Utah Board of Pardons



      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).

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three times, in 1984, 1988 and 1993, and was denied parole each time. Id. M alek

then filed a § 1983 action against members and staff of the Utah Board of Pardons

and Parole, alleging his constitutional rights under the Fifth, Eighth and

Fourteenth Amendments were violated by various procedural deficiencies in the

board’s actions. M alek sought compensatory damages, declaratory and injunctive

relief. Id. at 1014-15. The district court dismissed M alek’s action as “frivolous”

pursuant to 28 U.S.C. § 1915(d). 2 Id. at 1014. W e affirmed the district court’s

dismissal. Id. at 1016.

      In August 2000, M alek was paroled. Thirteen months later, he was arrested

on a firearm possession charge, and indicted on one count of violating 28 U.S.C.

§ 922(g)(1). He was returned to the Utah State Prison pending disposition of his

federal charge. M alek pled guilty and on August 15, 2002, he was sentenced to

sixty-four months imprisonment, to be served concurrently with his state

sentence.

      On M ay 29, 2003, M alek filed the present action in district court. He again

alleged violations of his constitutional rights under the Fifth, Eighth and

Fourteenth Amendments, stemming from his continuing incarceration based on

incorrect information in his prison file. He sought declaratory and injunctive

relief, and both compensatory and punitive damages. The district court dismissed




      2
          Now codified as 28 U.S.C. § 1915(e)(2)(B)(I).

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the complaint, finding the allegations “to be little more than a rehash of [M alek’s]

earlier claims which w ere found to be frivolous.” (R. Doc. 40 at 7.) The court

held M alek’s allegations both were barred under the doctrine of claim preclusion

and failed to state a claim on which relief could be granted, under §

1915(e)(2)(B). M alek timely appealed.

                                      Discussion

      W e apply a de novo standard of review to questions of res judicata. M ay v.

Parker-Abbott Transfer & Storage Inc., 899 F.2d 1007, 1009 (10th Cir. 1990).

Res judicata applies if (1) there was a final judgment on the merits in the earlier

action; (2) the parties are identical or in privity in both cases; (3) the cause of

action is the same; and (4) the plaintiff had a full and fair opportunity to litigate

the claim in the prior suit. Nwosun v. Gen. M ills Rests., Inc., 124 F.3d 1255,

1257 (10th Cir. 1997).

      M alek’s original complaint was dismissed as frivolous because the

defendants were immune from suit. M alek I, 26 F.3d at 1015. W e affirmed the

district court and also held the claim frivolous because it was “based upon an

infringement of a legal interest which clearly does not exist under the United

States Constitution.” Id. The first prong of res judicata is thus met: M alek

received a judgment on the merits in his previous claim. See Kinnell v. Graves,

265 F.3d 1125, 1127 (10th Cir. 2001) (res judicata barred relitigation of previous

claims dismissed as frivolous).

                                           -4-
      Next, the parties in this action are identical or in privity to the parties in the

first action. M alek originally brought an action against the chairman, members

and staff of the Utah Board of Pardons and Parole. M alek I, 26 F.3d at 1014. The

complaint in this case names members of the board and prison staff. These

defendants, as government employees, are clearly in privity with the defendants in

the previous action. United States v. Rogers, 960 F.2d 1501, 1509 (10th Cir.

1992) (“There is privity between officers of the same government so that a

judgment in a suit between a party and a representative of the United States is res

judicata in relitigation of the same issue between that party and another officer of

the government.”) (internal quotations and citation omitted).

      The third Nwosun prong is also met. The cause of action in both suits is

the same: alleged deprivation of rights under the Fifth, Eighth and Fourteenth

Amendments. W e use the “transactional approach” to define a cause of action.

Nwosun, 124 F.3d at 1257. “U nder this approach, a cause of action includes all

claims or legal theories of recovery that arise from the same transaction, event, or

occurrence.” Id. The claims M alek alleges in this action arise from the same

occurrence (incorrect information in his prison record) as the claims he asserted

previously.

      Finally, the fourth prong of res judicata, requiring a full and fair

opportunity to litigate, has been met. M alek’s previous claims w ere properly

considered by the district court, and the matter appealed to this Court for review.

                                          -5-
M alek I, 26 F.3d at 1014.

      W e find the district court correctly held M alek’s current claims barred by

the doctrine of res judicata. W e now review the court’s further determination that

the action was frivolous.

      W e review a district court's determination of frivolousness under § 1915 for

an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Templeman

v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). A complaint may be deemed

frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v.

W illiam s, 490 U.S. 319, 325 (1989). Legally frivolous claims include “claims of

infringement of a legal interest which clearly does not exist.” Id. at 327.

      W e held in M alek I that the U tah statute governing parole created neither a

liberty interest entitling M alek to due process protection, nor a legitimate

entitlement to parole prior to the completion of his sentence. 26 F.3d at 1016.

Thus, M alek’s claim had no basis under the Fifth, Eighth or Fourteenth

Amendments. Id. The relevant statute has not changed since our decision in

M alek I and the analysis and conclusion remain the same. M alek’s complaint

“lacks an arguable basis either in law or in fact.” Neitzke, 490 U.S. at 325. The

district court correctly deemed M alek’s complaint frivolous.

      Finally, we review the district court’s dismissal of M alek’s complaint for

failure to state a claim upon which relief can be granted. W e apply a de novo

standard in reviewing dismissals under § 1915(e)(2)(B)(ii). Perkins v. Kansas

                                          -6-
Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). As noted above, M alek

claims “infringement of a legal interest which clearly does not exist.” Neitzke,

490 U.S. at 327. The district court correctly dismissed M alek’s complaint for

failure to state a claim.

       M alek’s appeal is “without merit in that it lacks an arguable basis in either

law or fact.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). W e

DENY M alek’s motion to proceed ifp under § 1915(a)(1) and DISM ISS this

appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). M alek is responsible for the

immediate payment of the unpaid balance of the appellate filing fee.

       The dismissal of M alek’s complaint and the dismissal of this appeal each

count as a strike pursuant to 28 U.S.C. § 1915(g). Jennings v. Natrona County

Det. Ctr. M ed. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (dismissal by district

court as frivolous under § 1915(e)(2)(B) followed by appellate dismissal on the

same basis counts as two strikes). M alek has one prior strike, arising from the

dismissal of a civil action as frivolous. See D.C. 2:93-cv-00612-DB (Utah Dec.

22, 1993). M alek has accrued three strikes and is no longer permitted to proceed

ifp in any civil action filed in a federal court unless he is in imminent danger of

physical injury. 28 U.S.C. § 1915(g).

                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge



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