                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 31 1997
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 CHARLES JOHN McCARTY,

          Plaintiff-Appellant,

 v.
                                                       No. 97-8002
 MARGARET GALLANT, Medical                         (D.C. No. 96-CV-118)
 Records Director, Wexford Health                        (D. Wyo.)
 Services; JUDY UPHOFF, in her
 official capacity as Director, Wyoming
 Department of Corrections,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, 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); 10th Cir. R. 34.1.9. 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        This order and judgment is not binding precedent except under the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. 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.
      On June 6, 1996, Mr. Charles John McCarty filed this pro se civil rights

complaint, pursuant to 42 U.S.C. § 1983, against Ms. Margaret Gallant, the

Medical Records Director for Wexford Health Services at the Wyoming State

Penitentiary in Rawlins, Wyoming. Mr. McCarty alleged he was subjected to

cruel and unusual punishment in violation of his Eighth Amendment right because

Ms. Gallant canceled his surgical appointments at the Veterans Administration

Hospital in Cheyenne, Wyoming (VA Hospital) and falsified the doctor's orders

concerning those appointments. On September 26, 1996, Mr. McCarty amended

his complaint to add defendant Judith Uphoff, Director of the Wyoming

Department of Corrections, and allegations he was being denied medical

treatment. Mr. McCarty alleged Ms. Uphoff violated his constitutional right to be

free from cruel and unusual punishment by refusing to allow him to receive

medical treatment from the VA Hospital.



      On December 18, 1996, the district court dismissed Mr. McCarty's

complaint as frivolous and for failure to state a claim upon which relief can be

granted. The district court found Mr. McCarty "fail[ed] to present any facts to

establish cruel and unusual punishment" and that his claims were "clearly

baseless."




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      On appeal, Mr. McCarty contends: the district court erred in dismissing his

complaint; 1 the district court held him to a higher standard of performance than

allowed for pro se plaintiffs; and the district court's sua sponte dismissal of his

complaint denied him his right to redress, right to a fair trial, right to be heard,

and right to due process. 2



      Under 28 U.S.C. § 1915(e)(2)(B), a district court may dismiss an in forma

pauperis action as frivolous if the claim is based on an indisputably meritless

legal theory or if it is founded on clearly baseless factual contentions. 3 Schlicher


      1
          In his statement of issues, Mr. McCarty alleges the district court usurped
the jury's fact-finding role in determining he did not establish the requisite
culpable state of mind of the defendants (Brief of Aplt. at iv); however, the
district court made no such finding. (See ROA, Vol. 1, Tab 20.) To state a claim
for cruel and unusual punishment, a plaintiff must allege facts showing prison
officials were deliberately indifferent to a prisoner's serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Ramos v. Lamon, 639 F.2d 559, 575
(10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). The district court found Mr.
McCarty failed to make any allegations showing deliberate indifference on the
part of the defendants. (Id. at 3.) Finding a plaintiff failed to make any
allegations on an issue does not equate to a finding on the issue itself.

      2
         To the extent Mr. McCarty contends he was denied due process of law in
the handling of his grievances, Mr. McCarty raises a new issue on appeal, which
will not be considered by this court. See Walker v. Mather (In re Walker), 959
F.2d 894, 896 (10th Cir. 1992) (as a general rule, this court will not consider an
issue on appeal that was not raised in the district court).

      3
       The district court did not specify whether it dismissed Mr. McCarty's
complaint pursuant to § 1915(e)(2)(B). However, for the purposes of this appeal,

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v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). See 28 U.S.C. § 1915(e)(2)(B)(i)

and (ii). We review the dismissal of a complaint as frivolous under

§ 1915(e)(2)(B) for abuse of discretion. Schlicher, 111 F.3d at 779. 4



      After review of the record, we hold the district court did not abuse its

discretion in dismissing Mr. McCarty's complaint as frivolous. 5 We agree with

the district court's well-reasoned December 18, 1996 order. Because we agree

with the district court that Mr. McCarty's complaint was frivolous, his arguments

that the district court denied him his right to a fair trial, right to redress, right to



we assume it did since the court can think of no other provision at this time that
permits sua sponte dismissal as frivolous.

      4
         As an aside, we note an interesting anomaly. In Schlicher, we stated
dismissal as frivolous pursuant to § 1915(e)(2)(B)(i) is reviewed for abuse of
discretion. However, in Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir.
1996), and Maez v. Mountain Tel. & Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.
1995), we stated dismissal for failure to state a claim under Fed. R. Civ. P.
12(b)(6) is reviewed de novo. We have not yet determined whether dismissal for
failure to state a claim pursuant to § 1915(e)(2)(B)(ii) is reviewed for abuse of
discretion, similar to other subsections of § 1915, or de novo, similar to the same
standard as a Rule 12(b)(6) "failure to state a claim." This is an interesting
question, which we reserve for another day.

      5
         Since we find the district court properly dismissed Mr. McCarty's
complaint as frivolous, we do not reach the district court's dismissal for failure to
state a claim. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994) (this court may affirm on any grounds supported by the record).


                                           -4-
be heard and right to due process are wholly without merit. Additionally,

although Mr. McCarty is correct that the courts must construe pro se pleadings

more liberally than non-pro se pleadings, there is nothing in the district court's

order or in the record to support Mr. McCarty's allegation the district court failed

to liberally construe his pro se pleadings. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972) (we are obliged to construe pro se pleadings liberally).



      Consequently, we conclude Mr. McCarty's appeal is frivolous within the

meaning of § 1915(e)(2)(B)(i) and DISMISS the appeal. Because this appeal is

dismissed as frivolous pursuant to § 1915(e)(2)(B)(i), this appeal counts as a

"prior occasion" under 28 U.S.C. § 1915(g).



      In addition, Mr. McCarty's Notice of Defendant's Failure to Provide Brief

requesting this court to impose sanctions on defendants/appellees for failure to

file a reply brief is DENIED.


                                        Entered for the Court

                                        WADE BRORBY
                                        United States Circuit Judge




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