Charles John Mccarty, Plaintiff-appellant, v. Margaret Gallant, Medical Records Director, Wexford Healthservices; Judy Uphoff, in Her Official Capacityas Director, Wyoming Department Ofcorrections, Defendants-appellees, 120 F.3d 270 (10th Cir. 1997)

ORDER AND JUDGMENT^* 

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

On June 6, 1996, Mr. Charles John McCarty filed this pro se civil rights complaint, pursuant to 42 U.S.C. § 1983, against Ms. Margaret Gallant, the Medical Records Director for Wexford Health Services at the Wyoming State Penitentiary in Rawlins, Wyoming. Mr. McCarty alleged he was subjected to cruel and unusual punishment in violation of his Eighth Amendment right because Ms. Gallant canceled his surgical appointments at the Veterans Administration Hospital in Cheyenne, Wyoming (VA Hospital) and falsified the doctor's orders concerning those appointments. On September 26, 1996, Mr. McCarty amended his complaint to add defendant Judith Uphoff, Director of the Wyoming Department of Corrections, and allegations he was being denied medical treatment. Mr. McCarty alleged Ms. Uphoff violated his constitutional right to be free from cruel and unusual punishment by refusing to allow him to receive medical treatment from the VA Hospital.

On December 18, 1996, the district court dismissed Mr. McCarty's complaint as frivolous and for failure to state a claim upon which relief can be granted. The district court found Mr. McCarty "fail [ed] to present any facts to establish cruel and unusual punishment" and that his claims were "clearly baseless."

On appeal, Mr. McCarty contends: the district court erred in dismissing his complaint;¹  the district court held him to a higher standard of performance than allowed for pro se plaintiffs; and the district court's sua sponte dismissal of his complaint denied him his right to redress, right to a fair trial, right to be heard, and right to due process.² 

Under 28 U.S.C. § 1915(e) (2) (B), a district court may dismiss an in forma pauperis action as frivolous if the claim is based on an indisputably meritless legal theory or if it is founded on clearly baseless factual contentions.³  Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). See 28 U.S.C. § 1915(e) (2) (B) (i) and (ii). We review the dismissal of a complaint as frivolous under § 1915(e) (2) (B) for abuse of discretion. Schlicher, 111 F.3d at 779.⁴ 

After review of the record, we hold the district court did not abuse its discretion in dismissing Mr. McCarty's complaint as frivolous.⁵  We agree with the district court's well-reasoned December 18, 1996 order. Because we agree with the district court that Mr. McCarty's complaint was frivolous, his arguments that the district court denied him his right to a fair trial, right to redress, right to be heard and right to due process are wholly without merit. Additionally, although Mr. McCarty is correct that the courts must construe pro se pleadings more liberally than non-pro se pleadings, there is nothing in the district court's order or in the record to support Mr. McCarty's allegation the district court failed to liberally construe his pro se pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (we are obliged to construe pro se pleadings liberally).

Consequently, we conclude Mr. McCarty's appeal is frivolous within the meaning of § 1915(e) (2) (B) (i) and DISMISS the appeal. Because this appeal is dismissed as frivolous pursuant to § 1915(e) (2) (B) (i), this appeal counts as a "prior occasion" under 28 U.S.C. § 1915(g).

In addition, Mr. McCarty's Notice of Defendant's Failure to Provide Brief requesting this court to impose sanctions on defendants/appellees for failure to file a reply brief is DENIED.