F I L E D

United States Court of Appeals

Tenth Circuit

JUN 26 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARTON LEE MURPHY,

Plaintiff-Appellant,

v.

UNITED STATES BUREAU OF

PRISONS, in its official capacity in

the Federal Government of the United

States of America; JANET RENO,

Attorney General, United States of

America, in her individual and official

capacity; KATHLEEN HAWK,

Director of the Federal Bureau of

Prisons, in her individual and official

capacity; ED CROSLEY,

Administrator, National Inmate

Appeals, Central Office, Federal

Bureau of Prisons, in his individual

and official capacity; PATRICK

KANE, Director, North Central

Regional Office, Federal Bureau of

Prisons, in his individual and official

capacity; WILLIAM PERRILL,

Warden, in his individual and official

capacity; and ANGELA SHENK, Head

of I.S.M., Records Office, FCI

Englewood, in her individual and

official capacity, 

Defendants-Appellees.

No. 97-1001

(District of Colorado)

(D.C. No. 96-S-1770)
*This order and judgment is not binding precedent, except under the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.

1Murphy’s frivolous and malicious Emergency Motion for Stay of the

district court order imposing fees under the Prison Litigation Reform Act of 1996,

Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) (codified at 28 U.S.C. §

1915(b)), is hereby DENIED. Mr. Murphy is hereby notified that he is under a

continuing obligation to pay the filing fee in this appeal as provided in the district

court’s orders of January 14, 1997, and January 27, 1997. Failure to pay the fees

as required by the district court’s orders will be recorded by the Office of the

Clerk of the Court of the United States Court of Appeals. Information regarding

failure to pay fees as required by law will be provided to this court upon the filing

of any future appeals in the Tenth Circuit.

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ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges. 

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 cause is

therefore ordered submitted without oral argument.

Barton L. Murphy appeals1 the district court’s dismissal pursuant to 28

U.S.C. § 1915(e)(2)(B) of Murphy’s complaint for damages against the United

States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,

2671-80. Murphy alleged that the United States violated his First, Fifth, Sixth,
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and Fourteenth Amendment rights by seizing and viewing his legal

correspondence. The district court dismissed as frivolous and malicious all

causes of action brought pursuant to Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971); 42 U.S.C. §§ 1983, 1985; 18 U.S.C. §§ 241, 242, 1501-15; and

28 U.S.C. §§ 2201, 2202, on the ground that those exact same claims had been

raised and decided in a prior suit brought by Murphy. As to Murphy’s claims

under the FTCA, the district court held that those claims failed on two grounds:

(1) the constitutional torts alleged by Murphy were not actionable under the

FTCA, FDIC v. Meyer, 510 U.S. 471, 477-78 (1994); and (2) Murphy’s claims of

psychological injury were not actionable under the FTCA absent a showing of

physical injury, 28 U.S.C. § 1346(b)(2). This court exercises jurisdiction over

Murphy’s appeal pursuant to 28 U.S.C. § 1291 and affirms.

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 indisputedly meritless

legal theory” or if it is founded on “clearly baseless” factual contentions. See

Neitzke v. Williams, 490 U.S. 319, 327 (1989). This court reviews the dismissal

of a complaint as frivolous under § 1915(e)(2)(B) for abuse of discretion. See

Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997).

This court has reviewed Murphy’s briefs and contentions, as well as the

entire record on appeal. Upon review, we affirm for substantially the reasons set
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forth in the district court’s well-reasoned Order of Dismissal dated November 27,

1996. We further note that Murphy’s appeal is frivolous or fails to state a claim

under 28 U.S.C. § 1915(e)(2)(B) for purposes of counting “prior occasions” under

28 U.S.C. § 1915(g). Mr. Murphy is hereby notified that three filings of cases

that are dismissed or affirmed on the basis that they are frivolous or fail to state a

claim under 28 U.S.C. § 1915(g) will result in him being unable to proceed pro se

under the provisions of § 1915.

ENTERED FOR THE COURT,

Michael R. Murphy

Circuit Judge