                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JAN 9 2001
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 MICHAEL LEE SPENCER, SR.,

           Plaintiff-Appellant,
 v.                                                       No. 00-8018
 CITY OF CHEYENNE; CITY OF                           (D.C. No. 99-CV-145)
 CANNON CITY, COLORADO; CITY                               (D.Wyo.)
 OF DALE CITY, VIRGINIA; CITY
 OF OMAHA, NEBRASKA; STATE
 OF VIRGINIA; STATE OF
 COLORADO; STATE OF
 WYOMING; STATE OF NEBRASKA,

           Defendants-Appellees.




                              ORDER AND JUDGMENT          *




Before SEYMOUR , EBEL 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



       This order and judgment is not binding precedent, except under the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

      Michael Spencer, a state prisoner proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                          I.

      Spencer filed his original § 1983 complaint on July 13, 1999, alleging

Wyoming officials deprived him of “due process when they failed to protect and

afford him his rights pursuant to the IADA”; the Wyoming officials deprived him

of personal property “in violation of the U.S. Constitution”; and that Virginia

officials “fraudulently submitted federal documents to Colorado courts” to gain

custody of Spencer. Record, Doc. 2 at 3-4. On July 23, 1999, Spencer filed an

amended complaint, alleging “unlawful taking of [Spencer] by force and by

means of fraud, against his will, by the State of Virginia”; that he was denied and

deprived of “due process to the United States Constitution by Colorado,

Wyoming and Nebraska”; and “malicious prosecution by Virginia,” aided and

abetted by Colorado, Wyoming, and Nebraska.      Id. , Doc. 5 at 3-4. As an

amended complaint supersedes the original complaint, only the allegations in the

July 23 complaint will be considered.   See Miller v. Glanz , 948 F.2d 1562, 1565

(10th Cir. 1991).

      The crux of Spencer’s complaint is his challenge to his parole by Colorado


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to the state of Virginia pursuant to the Interstate Agreement on Detainers (IAD),

a compact among forty-eight states, the United States, and the District of

Columbia, “to encourage the expeditious and orderly disposition of [outstanding]

charges and determination of the proper status of any and all detainers based on

untried indictments, informations, or complaints.”       United States v. Coffman , 905

F.2d 330, 331 (10th Cir. 1990).

          In dismissing Spencer’s complaint for failure to state a claim for relief, the

district court found he failed “to present the facts that form[ed] the basis of his

claims and his conclusory allegations render[ed] his complaints largely

incomprehensible.” Record, Doc. 31 at 2. The court further found he failed to

allege “any personal participation or conduct by any individual defendant,” and

“his claims against the states of Virginia, Wyoming, Colorado, and Nebraska, or

against state officials in their official capacities [were] barred by the Eleventh

Amendment.” Id. at 2-3. With respect to the cities named as defendants, the

court found Spencer failed to allege any actions which violated his constitutional

rights.

                                             II.

          Spencer argues he “fully apprised the court of his severe mental and

physical disabilities” and the court failed to provide him “meaningful access to

the courts” by not appointing counsel. “We review the denial of appointment of


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counsel in a civil case for an abuse of discretion.”     Rucks v. Boergermann , 57

F.3d 978, 979 (10th Cir. 1995). Factors to be considered in deciding whether to

appoint counsel include the merits of the claims, the nature of the factual issues

raised in the claims, the litigant’s ability to present the claims, and the

complexity of the legal issues raised by the claims.      Rucks , 57 F.3d at 979. We

have reviewed the record and find that the district court did not abuse its

discretion by not appointing counsel for Spencer. Even with appointed counsel,

there is little likelihood that Spencer could have prevailed on his claims.     See id.

       Spencer also contends the district court erred in dismissing his complaint.

“We review a [Rule] 12(b)(6) dismissal de novo.”         Davis-Warren Auctioneers,

J.V. v. F.D.I.C. , 215 F.3d 1159, 1161 (10th Cir. 2000). Our review of the record

convinces us that Spencer has failed to state any claim upon which relief could be

granted. It appears that Spencer has recognized he cannot recover under § 1983.

In his objections to the magistrate’s report and recommendations, he admitted he

had four pending 28 U.S.C. § 2254 actions in four separate federal district courts

that would determine almost all of the claims he raised in his § 1983 action.      See

Record, Doc. 26 at 4.

       Spencer references in his appellate brief a claim for deprivation of property

without due process against the “four city defendants.” Br. at 17. This issue was

not raised in Spencer’s amended complaint and we decline to review the merits of


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the claim. See Scott v. Hern , 216 F.3d 897, 908 n.5 (10th Cir. 2000).

      AFFIRMED. Spencer’s emergency motion for “appropriate relief, ex

parte” is DENIED. Spencer is reminded of his obligation to continue making

partial payments of appellate costs and fees until paid in full. The mandate shall

issue forthwith.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge




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