                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             SEP 13 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 WILLIAM JAY NICHOLS,

                Plaintiff - Appellant,                    No. 98-6469
           v.                                           (W.D. Oklahoma)
 PATRICIA PRESLEY and NILES                         (D.C. No. CV-98-404-C)
 JACKSON,

                Defendants - Appellees.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , 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       This order and judgment is not binding precedent, except under the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. 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.
       William Jay Nichols, a state prisoner at the Great Plains Correctional

Center in Hinton, Oklahoma, appeals the dismissal of his civil rights action,

brought pursuant to 42 U.S.C. § 1983, against the court clerk for the Oklahoma

County District Court and a state court judge.    1



       In his action, Mr. Nichols claimed his constitutional rights were violated

when the court clerk did not provide him with a trial transcript at public expense,

and the state judge denied his request for a free transcript. The magistrate judge

recommended that the complaint, barred by judicial immunity and quasi-judicial

immunity, be dismissed for failure to state a claim. After consideration of Mr.

Nichols’ objections, the district court adopted the recommendation and dismissed

the complaint. This appeal followed.

       After fully considering Mr. Nichols’ arguments on appeal and the entire

file, we conclude that the magistrate judge and the district court correctly

analyzed this case in their respective “Findings and Recommendation” filed

August 21, 1998, and “Order of Dismissal” filed September 25, 1998, both of

which we incorporate by this reference.



       The court previously ordered the parties to address the jurisdictional issue
       1

of whether or not Mr. Nichols’ appeal was timely. The state responded without
addressing the “prisoner mailbox rule,” see Houston v. Lack, 487 U.S. 266
(1988), and why that rule would not apply in this case as asserted by Mr. Nichols.
We conclude that in the absence of any contrary showing by the state, Mr. Nichols
has sufficiently established the applicability of the mailbox rule so that his notice
of appeal may be considered timely filed.

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      Furthermore, we find that this appeal is frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i) and, accordingly, dismiss this appeal pursuant to § 1915(e)(2).

The district court dismissed the complaint pursuant to this same statutory

provision; thus, that dismissal and our dismissal, together, count as two “prior

occasions” for purposes of § 1915(g).     See Jennings v. Natrona County Detention

Center , 175 F.3d 775 (10th Cir. 1999).

DISMISSED.

                                                 ENTERED FOR THE COURT



                                                 Stephen H. Anderson
                                                 Circuit Judge




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