                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES CO URT O F APPEALS
                                                                          January 24, 2007
                                     TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                            Clerk of Court


 AN THO NY R. M AR TINEZ,

                   Plaintiff-Appellant,                       No. 06-1410
             v.                                          (District of Colorado)
 A LLEN ZA D RO G A ,                                (D.C. No. 06-cv-01130-ZLW )
 KEN CRANK, and
 BARRY PARDUS,

                   Defendants-Appellees.




                                OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.


         Anthony R. M artinez, seeking to proceed in form a pauperis, filed this

action against Allen Zadroga, Ken Crank, and Barry Pardus, correctional officers

at Limon, Colorado, Correctional Facility, the prison where he is incarcerated.

B ecause M r. M artinez filed his complaint without the benefit of counsel, we

examine his claims liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991).        Even so, after carefully reviewing the record, we agree with the district



         *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
court that M r. M artinez’s claims are frivolous. Therefore, we deny his motion to

proceed without paying costs, and we dismiss his appeal without reaching the

merits.

      The terms of 28 U.S.C. § 1915(e)(2)(B), the in forma pauperis statute,

make clear that we may not reach the merits of a prisoner’s claim where it is

frivolous. A claim is frivolous in the context of § 1915 if it “lacks an arguable

basis either in law or fact.” N eitzke v. W illiams, 490 U.S. 319, 325 (1989).

      M r. M artinez raises two Eighth A mendment claims. First, he avers that M r.

Crank and M r. Zadroga violated his Eighth Amendment right to be free of cruel

and unusual punishment when they launched a barrage of verbal assaults at him

while he w as confined in isolation after a suicide attempt. M r. M artinez also

alleges that M r. Crank and M r. Zadroga used physical force to place him in

restraints while he was on suicide watch.

      As to M r. M artinez’s first claim, it could be that despite the age-old saying,

words may be hurtful; nevertheless, something more akin to sticks and stones is

required to state an Eighth Amendment cause of action. M cBride v. Deer, 240

F.3d 1287, 1291 n. 3 (10th Cir. 2001) (“[A]cts or omissions resulting in an inmate

being subjected to nothing more than threats and verbal taunts do not violate the

Eighth Amendment”). W ith respect to his second Eighth Amendment claim, a

prison guard’s use of force only gives rise to a cruel and unusual punishment

claim if it involves “the unnecessary and wanton infliction of pain . . . .” Whitley

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v. Albers, 475 U.S. 312, 327 (1986). M r. M artinez fails to allege that M r. Crank

and M r. Zadroga used more force than necessary or that they placed him in

restraints w ith the intent of harming him, or that they acted with deliberate

indifference to his health and safety. Thus, M r. M artinez has failed to state an

Eighth Amendment claim.

      Next, M r. M artinez contends he was deprived of his due process rights

under the Fourteenth Amendment when M r. Crank and M r. Zadroga “both filed

false statements [and] by oath filed false statements.” Rec. doc. 3 at 5. In order

to state a due process claim, a prisoner must first demonstrate that he has been

deprived of some liberty or property interest. See Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due

process apply only to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty or property.”). Even when read with the most

searching eye, it is difficult to discern from his complaint or the record what

constitutionally protected interest M r. M artinez claims to have been infringed as a

result of the alleged falsehoods. As he points out, the disciplinary proceeding

against him–where M r. Crank and M r. Zadroga presumably uncorked the

untruths–was dismissed. Rec. doc. 3 at 20.

      Inasmuch as M r. M artinez complains about his assignment to a segregation

unit, he has failed to state a Fourteenth Amendment claim. In order to rise to the

level of a constitutional violation, a prisoner must prove that his new confines

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pose an “atypical and significant hardship . . . in relation to the ordinary incidents

of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). M r. M artinez makes

no such assertion in the instant case.

      Finally, M r. M artinez avers that M r. Pardus, the prison’s director of

medical services, is imposing excessive health care costs. M ore specifically, M r.

M artinez claims that he is charged $5.00 every six months because he has been

classified as a chronic care inmate. He also maintains that he is charged $10.00

every time he is taken to the infirmary for having a seizure and $5.00 every time

he orders m edication. M r. M artinez does not state an Eighth Amendment claim

because he does not allege that prison officials have denied him medical treatment

due to a lack of funds or any other reason. See Clemmons v. Bohannon, 956 F.2d

1523, 1527 (“[T]he core areas of any Eight Amendment claim are shelter,

sanitation, food, personal safety, medical care, and adequate clothing . . . .”)

(internal quotation marks omitted). M oreover, it is important to note that the

Colorado Board of Prisons has heard and dismissed M r. M artinez’ grievances

with respect to these charges. Rec. doc. 3 at 9. Since M r. M artinez has raised no

constitutional claim, we will defer to the Colorado state prison system with

respect to the fees it charges those who make frequent use of prison medical

services. See Turner v. Safely, 482 U.S. 78, 84-85 (1987) (noting that federal

courts are “ill equipped to deal with the increasingly urgent problems of prison

administration and reform”) (internal quotation marks omitted).

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      Because M r. M artinez’s claims are frivolous, we DENY his request to

proceed in form a pauperis. Accordingly, we DISM ISS this matter and remind

M r. M artinez of his obligation to make immediate payment of the remaining

balance of his filing fee. W e also note that because we have dismissed this appeal

as frivolous and the district court dismissed M r. M artinez complaint under 28

U.S.C. § 1915(e)(2)(B) both dismissals count as strikes for the purposes of §

1915(g). See Jennings v. Natrona County C enter M edical Facility, 175 F.3d 775,

780 (10th Cir. 1999).


                                Entered for the Court,



                                Robert H. Henry
                                Circuit Judge




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