                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           FEB 21 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    ROGER EUGENE GRESHAM,

                  Plaintiff-Appellant,

    v.                                                    No. 00-6153
                                                    (D.C. No. 99-CV-1745-L)
    JAMES D. CROOK,                                       (W.D. Okla.)

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BRISCOE , ANDERSON , and MURPHY , 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.

         Plaintiff Roger Eugene Gresham, a pro se federal prisoner, appeals the

district court’s dismissal of his civil rights complaint pursuant to 28 U.S.C.


*
      This order and judgment is not binding precedent, except under the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.
§ 1915(e)(2)(B)(ii), and its imposition of a “strike” pursuant to § 1915(g).

Because plaintiff’s appeal to this court is frivolous, we dismiss the appeal and

impose a third “strike” against him pursuant to § 1915(g).

      In June 1998, plaintiff filed case No. CIV-98-902-L in the district court,

alleging that he fell over a defective railing at the federal prison and received

deficient medical care. As part of the Martinez report in that case, 1 paralegal

Crook submitted a declaration stating that an administrative remedy retrieval

(1) showed that plaintiff had attempted to file an appeal to the central office and

was advised that he should first appeal to the institutional and regional levels; and

(2) did not show that plaintiff had attempted to follow the administrative remedy

process at the institutional or regional levels. R. I, doc. 2, ex. 7. After

considering the merits of plaintiff’s claims in case No. CIV-98-902-L, the district

court dismissed some of the claims and granted summary judgment on the rest.

We affirmed the district court’s judgment in Gresham v. Flowers, No. 99-6397,

2000 WL 192926 (10th Cir. Feb. 17, 2000) (unpublished disposition), and

imposed a “strike” against plaintiff for filing a frivolous appeal. Id. at **4.

      Plaintiff brought this action against paralegal Crook, alleging that the

statements in the declaration were false and violated plaintiff’s civil rights. The

magistrate judge to whom the case was referred held that plaintiff failed to state a


1
      See Martinez v. Aaron , 570 F.2d 317, 319-20 (10th Cir. 1978).

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claim (1) under 42 U.S.C. § 1983 because Crook was not a state actor; and

(2) under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388, 397 (1971), because the statements, even if false, did not affect the

outcome of plaintiff’s prior lawsuit, which was decided on the merits. The

magistrate judge recommended that the complaint be dismissed for failure to state

a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), and that a “strike” be imposed

against plaintiff pursuant to § 1915(g). The district court adopted these

recommendations, and plaintiff appealed.

      We review de novo the district court’s dismissal of an action for failure to

state a claim. Proctor & Gamble Co. v. Haugen , 222 F.3d 1262, 1278 (10th Cir.

2000). Plaintiff argues that his evidence that he did, indeed, file administrative

appeals at the institutional and regional levels demonstrates that paralegal Crook

committed perjury, thereby violating plaintiff’s rights. Plaintiff has not shown

that Crook’s declaration was false, however, as he has not shown that the

administrative remedy retrieval upon which Crook relied contained information

other than that reported by Crook. Moreover, even if the declaration contained

false information, plaintiff has not shown any violation of his rights as his

previous lawsuit was not dismissed for failure to exhaust claims, but was decided

on the merits.




                                         -3-
       Accordingly, we affirm the district court’s dismissal of plaintiff’s

complaint pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim, and its

imposition of a strike pursuant to § 1915(g). See Jennings v. Natrona County

Detention Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). In addition, we

conclude that plaintiff’s appeal is frivolous under §   1915(e)(2)(B)(i). The legal

theory upon which he chose to proceed is entirely without support, as should have

been apparent to him from the district court’s rejection of the same argument as

frivolous in case No. CIV-98-902-L, the magistrate judge’s careful analysis in

this case, and the district court’s adoption of the magistrate judge’s

recommendation. We therefore hold that plaintiff has incurred a third strike

pursuant to § 1915(g), and that he is now prohibited from proceeding in forma

pauperis in a civil action or appeal in federal court–other than petitions for writ of

habeas corpus–unless the claim involves an “imminent danger of serious physical

injury.” Id. We remind plaintiff of his continuing obligation to pay all

installments of the deferred district court and appellate filing fees until they are

paid in full. No exception is made for dismissed appeals.     See 28 U.S.C.

§ 1915(b)(2).




                                             -4-
The appeal is DISMISSED as frivolous. The mandate shall issue forthwith.



                                          Entered for the Court



                                          Mary Beck Briscoe
                                          Circuit Judge




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