UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

DAVID J. MYERS,

 Plaintiff–Appellant,

v.

BUREAU OF PRISONS MAILROOM 

STAFF, unknown unidentified mailroom 

personnel, FCI-Englewood, individual 

capacities; MR. K. MORGAN, individual 

capacity (first name unknown to plaintiff); 

MRS. R. HUFNAGLE, individual 

capacity (first name unknown to plaintiff); 

MR. RENE GARCIA, individual 

capacity; MR. PAUL LAIRD, individual 

capacity; MR. HARRELL WATTS, 

individual capacity,

Defendants–Appellees.

No. 14-1131

(D.C. No. 1:13-CV-03491-LTB)

(D. Colo.)

ORDER AND JUDGMENT*

 

*

 After examining appellant’s brief and the 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) and 10th Cir. R. 34.1(G). The case is 

therefore ordered submitted without oral argument. 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 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 6, 2014

Elisabeth A. Shumaker 

Clerk of Court
-2- 

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

David Myers, a federal inmate being held in Colorado, appeals the dismissal of his 

civil rights complaint and the denial of his motion to alter or amend that judgment. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I 

 Myers is an inmate at a Federal Correctional Institution in Littleton, Colorado 

(“FCI-Englewood”). He filed suit alleging, in eleven claims brought pursuant to Bivens 

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),1

that several named and unidentified Federal Bureau of Prisons (“BOP”) personnel 

interfered with Myers’ ability to pursue the BOP’s administrative remedy procedure. The 

district court dismissed Myers’ complaint as legally frivolous under 28 U.S.C. 

§ 1915A(b)(1), and subsequently denied a motion to alter or amend the judgment. Myers 

appeals. 

II 

A complaint “is frivolous where it lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989). “[T]his court has not yet determined 

 

1

 We agree with the district court that although Myers also listed 42 U.S.C. 

§§ 1981, 1985, and 1986 in the jurisdiction portion of his amended complaint, he does 

not assert claims pursuant to those statutes. 
-3- 

whether a dismissal pursuant to § 1915A on the ground that the complaint is legally 

frivolous is reviewed de novo or for abuse of discretion.” Plunk v. Givens, 234 F.3d 

1128, 1130 (10th Cir. 2000). Because we would not reverse the district court’s decision 

under either standard, we do not resolve the question of which standard of review applies. 

The denial of a Rule 59(e) motion is reviewed for abuse of discretion. Barber ex rel. 

Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). We construe 

the filings of a pro se litigant liberally, but we do not “assume the role of advocate.” Hall 

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 

 On appeal, Myers contends that the district court failed to liberally construe his 

pro se claims and misunderstood his position and the facts underlying his claims. He 

provides little explanation of the district court’s alleged errors, and our independent 

review of his petition supports the court’s conclusion that Myers’ claims all arise out of 

purported interference with his efforts to complete the BOP administrative remedy 

procedure. 

 We have held that “[w]here prison officials prevent, thwart, or hinder a prisoner’s 

efforts to avail himself of an administrative remedy, they render that remedy 

‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones, 

607 F.3d 1245, 1250 (10th Cir. 2010). The BOP grievance process, however, “is not a 

constitutional right.” Soboroff v. Doe, Nos. 13-3285 & 13-6257, 2014 WL 2871690, at 

*3 (10th Cir. June 25, 2014) (unpublished); see also Green v. Corr. Corp. of Am., 401 F. 
-4- 

App’x 371, 375 n.4 (10th Cir. 2010) (unpublished) (prisoner did not have “a 

constitutional right to use the prison grievance procedure”). Because Myers’ complaint 

does not allege a constitutional violation as required by Bivens, it fails to state a claim 

upon which relief may be granted. See Pahls v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 

2013). It is well settled that a complaint that fails to state a claim is not necessarily 

frivolous, Neitzke, 490 U.S. at 328-29, but both frivolousness and failure to state a claim 

are grounds for mandatory dismissal under § 1915A(b)(1). 

Myers contends that the district court failed to address his claim of theft. In his 

operative complaint, Myers suggests that his rights and good time credits were stolen, 

allegations which include the word “theft” but are actually part of his claims regarding 

the grievance procedure, discussed above. The complaint also asserts, in a section titled 

“Nature of the Case,” that Myers’ personal property—labeled as “(SPECIAL/LEGAL 

MAIL)”—was taken. His eleven claims, however, do not allege theft, but rather only that 

mail disappeared or did not receive a response. Thus, even accepting all well-pled 

allegations in the complaint as true and interpreting them in the light most favorable for 

Myers, Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 

2013), he has not set forth a claim of theft sufficient to meet the pleading standard as it is 

explained in Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Ashcroft, the Court stated that 

“[w]here a complaint pleads facts that are merely consistent with a defendant’s liability, it 

stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 
-5- 

678 (quotations omitted). To the extent Myers’ claim of theft was not subsumed in his 

allegations regarding the administrative remedy process, dismissal is nonetheless 

appropriate. See § 1915A(b)(1) (permitting dismissal of complaint that is “frivolous, 

malicious, or fails to state a claim upon which relief may be granted”). There are no 

grounds to reverse the court’s denial of Myers’ motion to alter or amend its judgment of 

dismissal. 

III 

For the foregoing reasons, we AFFIRM the district court’s dismissal pursuant to 

§ 1915A(b)(1). That dismissal counts as a strike under the Prison Litigation Reform Act. 

28 U.S.C. § 1915(g); Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 

780 (10th Cir. 1999). We do not impose an additional strike based on this appeal, which 

was not frivolous. Jennings, 175 F.3d at 780. We GRANT Myers’ motion to proceed in 

forma pauperis on appeal and remind him of his obligation to continue making partial 

payments until the entire filing fee has been paid in full. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge