                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 22 2005
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


JOHN H. MAHORNEY,

          Plaintiff-Appellant,
                                                        No. 04-7051
v.                                             (Eastern District of Oklahoma)
                                                  (D.C. No. 02-CV-587-S)
LISA BUCKLES,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      After examining the briefs and appellate record, this court 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 case is before the court on John Mahorney’s pro se request to proceed

on appeal in forma pauperis. Mahorney seeks to proceed in forma pauperis so


      *
       This order and judgment is not binding precedent, except under the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.
that he can appeal the district court’s dismissal of his 42 U.S.C. § 1983 civil

rights complaint. The district court dismissed Mahorney’s complaint pursuant to

28 U.S.C. § 1915(e)(2), concluding that the suit was frivolous because it lacked a

basis in either law or fact. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir.

1997) (holding that an action is frivolous under § 1915(e)(2)(B)(i) if “the claim

[is] based on an indisputably meritless legal theory or if it is founded on clearly

baseless factual contentions”). This court reviews the district court’s dismissal

based on frivolousness for abuse of discretion. Conkle v. Potter, 352 F.3d 1333,

1335 n.4 (10th Cir. 2003). Like the district court, we construe pro se pleadings

liberally. See Haines v. Kerner, 404 U .S. 519, 520 (1972).

      Applying the standards set out in § 1915(e)(2)(B)(i), and after careful

review of the record on appeal and Mahorney’s filings, it is absolutely clear that

the district court did not abuse its discretion in determining that Mahorney’s

complaint was so vague and conclusory that it clearly failed to state an injury of

constitutional magnitude. Accordingly, we DISMISS the appeal as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Dismissal of Mahorney’s appeal as

frivolous counts as a strike against him, as does the district court’s dismissal of

his complaint. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d

775, 780 (10th Cir. 1999). Thus, Mahorney has accumulated at least two strikes

for purposes of the filing restrictions set out in 28 U.S.C. § 1915(g). Mahorney is


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reminded of his obligation to continue making partial payments of the appellate

filing fee until paid in full.

                                              ENTERED FOR THE COURT



                                              Michael R. Murphy
                                              Circuit Judge




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