                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAY 10 2001
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LEO SIMMONS,

             Plaintiff-Appellant,

    v.                                                 No. 00-1249
                                                   (D.C. No. 99-M-1228)
    JOHN SUTHERS; DONICE NEAL;                           (D. Colo.)
    BOBBY LYNN; JOHN DOE
    LIEUTENANT OF MAINTENANCE;
    JOHN DOE TRANSPORTATION
    OFFICERS FROM HOSPITAL;
    OFFICER RAMOS; ST. THOMAS
    MORE HOSPITAL MEDICAL
    STAFF; JOHN DOE NON STAFF
    PHYSICIAN TOLLETT, MICHAEL
    TOLLETT, D.O., NON STAFF
    PHYSICIAN

             Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before SEYMOUR, BALDOCK,            and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
      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.

      Plaintiff Leo Simmons, a state prisoner appearing pro se, appeals the

district court’s dismissal of his amended complaint alleging that Colorado

Department of Corrections (DOC) defendants violated his civil rights under

42 U.S.C. § 1983. Invoking supplemental jurisdiction under 28 U.S.C. § 1367,

Mr. Simmons also alleged that the medical defendants denied him proper medical

care, committed malpractice, and violated other Colorado state laws.

      At the time of the events in question, Mr. Simmons was incarcerated at the

Four Mile Correctional Facility (FMCF) in Cañon City, Colorado. He filed his

initial civil rights complaint in the District of Colorado on June 30, 1999.

Because his allegations were vague and conclusory and failed to link any of the

named defendants to any of the alleged civil rights violations, the district court

ordered him to file an amended complaint within thirty days. The district court

warned Mr. Simmons that he was obligated to clearly identify the personal

participation of each named defendant with respect to any allegations and to

clearly assert the acts each defendant allegedly committed.




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       In his amended complaint, Mr. Simmons alleged very generally that

defendants John Suthers, the Executive Director of the DOC, and Donice Neal,

the administrative head of the DOC, allowed DOC officers to break the law, and

that DOC Officer Bobby Lynn, failed to “stop the abuse.” R. Doc. 21, at 1a.

More specifically, he alleged that on May 13, 1999, DOC Officer Lisa Ramos

ordered him to report to work at the FMCF maintenance department even though

he was sick and that unnamed DOC maintenance officers forced him to work,

even though he was under medical restrictions. He claimed he was injured while

working in the maintenance department, and had to be taken to the defendant

St. Thomas More Hospital. He claimed that at the hospital, defendant

Dr. Michael Tollett assaulted him with an ink pen and denied him professional

medical care by giving him fake medicine. Mr. Simmons then alleged that upon

discharge from the hospital that day, unnamed DOC transportation officers threw

him into a van, causing him to jam his neck, and threw him from the van to the

ground upon his return to prison.

       The district court dismissed Mr. Simmons’ amended complaint against

defendants Suthers, Neal, and Lynn because he failed to allege any personal

participation or conduct by these individuals that allegedly deprived him of a

federal right. R. Doc. 23, at 3-4,   see Mitchell v. Maynard , 80 F.3d 1433, 1441

(10th Cir. 1996) (holding that personal participation is an essential element of a


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civil rights claim; mere allegation of supervisory status insufficient). The district

court also dismissed the complaint against St. Thomas More Hospital because

Mr. Simmons failed to assert any factual allegations of wrongdoing by the

defendant hospital. R. Doc. 33.

       The district court subsequently granted defendant Ramos’ motion for

summary judgment because she presented evidence, uncontroverted by

Mr. Simmons, that Mr. Simmons was not under any medical restrictions on

May 13, 1999, and therefore was under no restrictions preventing him from

working in the maintenance department that day. Thus, the district court ruled

that Mr. Simmons failed to provide any evidentiary support for his allegations

against Ms. Ramos. R. Doc. 55, at 1.

       Because Mr. Simmons’ allegations against Dr. Tollett were based on claims

of professional negligence against a licensed professional, the district court

directed him to file a certificate of review, as required by Colorado law, or his

complaint would be dismissed.       See Colo. Rev. Stat. § 13-20-602 (requiring

written statement that plaintiff consulted with expert who agreed action did not

lack substantial justification);   Baumgarten v. Coppage , 15 P.3d 304, 306

(Colo. Ct. App. 2000) (holding that Colorado’s certificate of review requirements

apply to any claim “based upon” allegations of professional negligence by

licensed professional). Mr. Simmons failed to file a certificate of review within


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the deadline, and the court dismissed his complaint against Dr. Tollett.

R. Doc. 63. The John Doe defendants were never properly identified or served.

As all claims against all served defendants had been dismissed, the district court

entered a final judgment dismissing the amended complaint in its entirety.

       This appeal followed. Simmons sought leave from the district court to

proceed in forma pauperis on appeal, but the district court denied his request.

Simmons has renewed his motion with this court. In order to succeed on his

motion, Simmons must show both an inability to pay the filing fee and the

existence of a nonfrivolous issue on appeal that states a claim on which relief can

be granted. 28 U.S.C. § 1915(e)(2);      Coppedge v. United States , 369 U.S. 438,

445 (1962); Ragan v. Cox , 305 F.2d 58, 60 (10th Cir. 1962). We have carefully

reviewed Mr. Simmons arguments on appeal, the district court’s orders of

dismissal, and the entire record on appeal. Mr. Simmons has failed to offer on

appeal any legally justified basis for reversing the district court’s judgment of

dismissal, and it is clear the district court did not err in its disposition. We

conclude Mr. Simmons’ appeal has no arguable basis for relief in either law or

fact. Accordingly, we deny leave to proceed        in forma pauperis and dismiss this

appeal on the ground that it is frivolous.    See 28 U.S.C. § 1915(e)(2)(B)(i)

and (ii). This dismissal counts as a “prior occasion” or “strike” for the purposes

of the “three strikes” provision of the Prison Litigation Reform Act, as set forth in


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28 U.S.C. § 1915(g).   1
                           We note that Mr. Simmons has at least one other “prior

occasion” or “strike” under § 1915(g).     See Simmons v. [No Appellee Named on

Appeal] , No. 99-1395, 1999 WL 1243082 (10th Cir. Dec. 21, 1999) (dismissing

appeal, finding it frivolous and counting dismissal as a “strike”).

      The motion to proceed      in forma pauperis is denied and the appeal is

DISMISSED.


                                                      Entered for the Court



                                                      Stephanie K. Seymour
                                                      Circuit Judge




1
      Section 1915(g) provides:

      In no event shall a prisoner bring a civil action or appeal a judgment
      in a civil action [in forma pauperis ] if the prisoner has, on 3 or more
      prior occasions, while incarcerated . . . brought an action or appeal in
      a court of the United States that was dismissed on the grounds that it
      was frivolous, malicious, or fails to state a claim upon which relief
      may be granted, unless the prisoner is under imminent danger of
      serious physical injury.

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