                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 27, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT




    STEVEN DOUGLAS McCARY,

              Plaintiff-Appellant,

    v.                                                  No. 10-1230
                                              (D.C. No. 1:10-CV-00284-ZLW)
    KAREN PETERS, Deputy D.A.,                           (D. Colo.)
    Boulder, Colorado; RICHARD IRVIN,
    Attorney at Law; GREGG
    FRIEDMAN, Attorney at Law;
    TERRY McCARY, ex-wife, alleged
    victim; ANGELITA VASQUEZ,
    prosecution witness; MARIENA
    HARRIS, prosecution witness,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, ANDERSON, 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)(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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Steven Douglas McCary, a Colorado inmate proceeding pro se, appeals the

district court’s order dismissing his 42 U.S.C. § 1983 civil-rights complaint

seeking damages. The district court dismissed the in forma pauperis (IFP)

complaint and the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii). We

take jurisdiction under 28 U.S.C. § 1291. We conclude that this appeal is

frivolous and therefore will be dismissed. We also deny Mr. McCary’s request to

proceed IFP on appeal.

                                    Background

      Claiming he was unfairly convicted of crimes in a Colorado state court,

Mr. McCary filed the underlying lawsuit against the prosecuting attorney, his two

defense counsel, and three witnesses who testified against him. At the time he

filed the complaint, his federal habeas petition was pending. 1 The district court

applied the rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), that a

damages claim under § 1983 will be dismissed unless the underlying conviction

has been reversed, expunged, declared invalid, or called into question by the

issuance of a federal writ. R. at 26-27. In addition, the court held that the claims

against defendants Peters, Vasquez, McCary, and Harris were barred by

prosecutorial or witness immunity. Next, the court noted that defense attorneys


1
       This court subsequently denied a certificate of appealability in the habeas
action because Mr. McCary had not exhausted his available state court remedies
in the criminal case. McCary v. Zavaras, Nos. 10-1272 & 10-1273, 2010 WL
4016774, at *3 (10th Cir. Oct. 14, 2010) (unpublished).

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are not state actors so are not subject to suit under § 1983. Finally, the court held

that Mr. McCary’s conspiracy claims were insufficient because they were not

supported by any specific facts to demonstrate the existence of an agreement and

concerted action.

                                      Disposition

         “[W]e review de novo a district court’s sua sponte dismissal pursuant to

28 U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.” Vasquez Arroyo v.

Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Because Mr. McCary is proceeding

pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.

2007).

         Having reviewed Mr. McCary’s brief and the record, and applying the

standard of review set out above, we affirm the district court’s order dismissing

Mr. McCary’s complaint and the action as legally frivolous for the same reasons

stated by that court. To the extent he argues that the district court erred in

refusing to appoint counsel for him, we find no abuse of discretion. See Steffey v.

Orman, 461 F.3d 1218, 1223 (10th Cir. 2006). Moreover, we determine that this

appeal is frivolous, pursuant to § 1915(e)(2)(B)(i), because Mr. McCary “has

failed to present any legal theory which could conceivably refute the district

court’s disposition.” Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1249

(10th Cir. 2007).

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                                  Prior Occasions

      Having found this appeal to be frivolous and subject to dismissal under the

provisions of § 1915(e)(2)(B)(i), Mr. McCary is advised that the dismissal of this

appeal counts as a second “prior occasion” or “strike,” under § 1915(g). See

Davis, 507 F.3d at 1249 (holding that dismissals by district court and court of

appeals in the same case each count as a strike). Mr. McCary “is reminded that if

he accrues three strikes, he will no longer be able to proceed in forma pauperis in

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

injury.” Thompson v. Gibson, 289 F.3d 1218, 1223 (10th Cir. 2002) (citing

§ 1915(g)).

                                     Conclusion

      Mr. McCary’s request to proceed IFP on appeal is DENIED, and he is

ordered to immediately remit the unpaid balance of the filing fee. All pending

motions are DENIED. This appeal is DISMISSED.



                                                     Entered for the Court


                                                     Deanell R. Tacha
                                                     Circuit Judge




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