                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUN 4 1999
                               TENTH CIRCUIT
                      _________________________________             PATRICK FISHER
                                                                             Clerk

 DAVID L. BUIST,

               Plaintiff-Appellant,

          v.                                            No. 99-4007
                                                  (D. C. No. 98-CV-29-C)
 KATHY CARTWRIGHT; KEN                                 (D. Utah)
 BINGHAM; DUANE JOHNSON;
 JANET SORENSON; STEVEN
 YATES; DAVID OKIE; and
 TAMARA ROBINETTE,

               Defendants-Appellees.

                       _______________________________

                           ORDER AND JUDGMENT *
                        ______________________________

Before TACHA, McKAY, and MURPHY,Circuit Judges.
                 _______________________________



      After examining Plaintiff-Appellant’s brief 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).


      *
        This order and judgment is not binding precedent, except under the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.
The case is therefore ordered submitted without oral argument.

      Proceeding pro se, Plaintiff, a state prisoner, brought an action pursuant to

42 U.S.C. § 1983 seeking damages for six alleged claims of constitutional

violations. Read liberally, they are:

      1.     Denial of access to the courts by prevention of phone calls and mail

             for forty-eight days.

      2.     Ninth Amendment claim incorporating the conduct described in the

             access to courts claims.

      3.     Cruel and unusual punishment by requiring him to participate in a

             “confrontation group” and denial of phone access and a tape recorder

             rather than hand-written lesson notes.

      4.     Denial of due process incorporating the behavior alleged in the claim

             for cruel and unusual punishment.

      5.     A Miranda claim in connection with his arrest.

      6.     A claim that he was denied an opportunity to file grievances

             apparently about the matters included in his other claims.

      The matter was referred to a magistrate judge who filed a detailed Report

and Recommendation stating that each claim should be dismissed as legally

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). The district court reviewed the

report, Plaintiff’s objections, and the complaint de novo. It adopted the Report


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and Recommendation and dismissed the complaint. We have made the same

review and conclude that the Report and Recommendation is correct.

      On appeal, Plaintiff also complains that the district court should have

permitted him to amend his complaint rather than dismiss it. We find no merit to

this claim.

      For the reasons stated in the magistrate judge’s Report and

Recommendation, we dismiss the appeal as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(I). The district court’s dismissal of the complaint and our

dismissal of the appeal count as two strikes under 28 U.S.C. § 1915(g). See

Jennings v. Natrona County Detention Ctr. Med. Facility,     F.3d     , 1999 WL

248634, at *4 (10th Cir. 1999).

      DISMISSED.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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