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 wo uld not materially assi st 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 argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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 Corr ectional Institution in Littleton, Colorado (“FCI-Englewood”). He filed suit alleging, in eleven claims brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bu reau of Narcotics, 403 U.S. 388 (1971), 1

that several named and unidentified Federa l Bureau of Prisons (“BOP”) personnel interfered with Myers’ ability to pursue the BOP’s administrative remedy procedure. The district court dismissed Myers’ compla int as legally frivolous under 28 U.S.C. § 1915A(b)(1), and subsequently denied a motio n 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 am ended complaint, he does not assert claims pursuan t 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.” Plun k v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000). Because we woul d not reverse the dist rict court’s decision under either standard, we do not resolve the que stion 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 distri ct court failed to liberally construe his pro se claims and misunderstood his positi on 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 conc lusion 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, th wart, or hinder a prisoner’s

efforts to avail himself of an administ rative remedy, they render that remedy ‘unavailable’ and a court will excuse the prisone r’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, 20 14 WL 2871690, at *3 (10th Cir. June 25, 2014) (unpublished); s ee 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 grievanc e procedure”). Because Myers’ complaint does not allege a constitutional violation as re quired by Bivens, it fails to state a claim upon which relief may be granted. See Pahl s v. Thomas, 718 F.3d 1210, 1228 (10th Cir. 2013). It is well settled that a complaint that fails to st ate a claim is not necessarily frivolous, Neitzke, 490 U.S. at 328-29, but bot h frivolousness and failure to state a claim are grounds for mandatory dism issal under § 1915A(b)(1). Myers contends that the district court faile d to address his claim of theft. In his operative complaint, Myers sugge sts 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. Th e complaint also assert s, in a section titled “Nature of the Case,” that Myers’ pers onal property—labeled as “(SPECIAL/LEGAL MAIL)”—was taken. His eleven claims, howeve r, do not allege theft, but rather only that mail disappeared or did not receive a res ponse. Thus, even accepting all well-pled allegations in the complaint as true and inte rpreting them in the li ght most favorable for Myers, Burnett v. Mortg. Elec. Registrati on Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013), he has not set forth a claim of theft suffi cient to meet the pleading standard as it is explained in Ashcroft v. Iqba l, 556 U.S. 662 (2009). In As hcroft, the Court stated that “[w]here a complaint pleads fact s that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of en titlement to relief.” Id. at- 5- 678 (quotations omitted). To the extent Myer s’ claim of theft was not subsumed in his allegations regarding the administrative re medy 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 Myer s’ 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 Pr ison 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 no t 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