* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 12 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

MELVIN E. SMITH,

Plaintiff-Appellant,

v.

O. LANE MCCOTTER; J. TERRY

BARTLETT, Head of Division of

Institutional Operations, in his official

and individual capacities; HANK

GALETKA, Warden of the Utah

Department of Corrections, in his

official and individual capacities;

JUNE HINCKLEY, Records Clerk for

the Utah Department of Corrections, in

her official and individual capacities, 

Defendants-Appellees.

No. 99-4025

(D.C. 98-CV-865-S)

(District of Utah)

 

ORDER AND JUDGMENT*

 

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.

 

After examining the briefs and appellate record, this panel has determined
2

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Mr. Smith brought this action pursuant to 28 U.S.C. § 1983, alleging the

defendants violated his right to speedy trial. The district court denied in forma

pauperis status and dismissed the complaint under 28 U.S.C. § 1915 (g), finding

that Mr. Smith had on “3 . . . prior occasions, while incarcerated . . . , brought an

action or appeal in a court of the United States that was dismissed on the grounds

that it is frivolous, malicious, or fails to state a claim upon which relief may be

granted . . . .” 28 U.S.C. § 1915 (g). Among the three cases listed by the district

court was Smith v. Lanna, 93-CV-44 (D. Utah 1993).

In Smith v. Lanna the district court dismissed the complaint against most

defendants “because no arguable claim for relief is stated.” Rec. doc. 4, at 5

(Magistrate’s Report and Recommendation dated May 10, 1993). However, “[a]s

to the other defendants, an arguable claim is stated but additional information is

needed for service.” Id. Thus, the court dismissed the complaint giving Mr.

Smith leave to file an amended complaint within ten days if he could provide the

additional information required for service. See id.

In our opinion, this dismissal is not for failure to state a claim upon which

relief may be granted. Therefore, because we hold that Mr. Smith has only on
3

two prior occasions had actions “dismissed” for section 1915(g) purposes, Mr.

Smith’s complaint cannot be dismissed on that ground.

However, Mr. Smith’s complaint could properly be dismissed under 28

U.S.C. § 1915(e)(2)(B) for failure to state a claim on which relief may be granted,

and we may affirm the district court’s dismissal for any correct reason supported

by the record. See Medina v. City and County of Denver, 960 F.2d 1493, 1495

n.1 (10th Cir. 1992) Mr. Smith alleged that the defendant’s willful failure to file

his demand for a disposition of a pending charge, in accord with Utah Code Ann.

§ 77-29-1, violated his federal right to a speedy trial.

"[A] violation of state law alone does not give rise to a federal cause of

action under 1983." Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Thus,

Mr. Smith’s allegation that the defendants violated Utah law, would not provide

ground for a section 1983 claim against them.

Liberally construing Mr. Smith’s pro se claim, see Haines v. Kerner, 404

U.S. 519, 520-21 (1972), we might consider whether the alleged violation of Utah

law is evidence of the second and third factors provided by the Supreme Court

with which we evaluate an alleged violation of the right to a speedy trial: reason

for the delay, and defendant’s assertion of his right. See Barker v. Wingo, 407

U.S. 514, 530 (1972) (listing length of delay, the reason for the delay, the

defendant's assertion of his right, and prejudice to the defendant as relevant
4

factors). However, Mr. Smith’s allegation that his right to speedy trial was

violated cannot withstand even the facts he alleges in his complaint. He notes

that he was not tried for 194 days after presenting his demand for disposition to

the appropriate authorities. See Rec. (Complaint dated October 9, 1998)) at 4. 

Utah law provides that trial must commence no later than 120 days after delivery

of the demand, absent a motion for continuance by either party. See Utah Code

Ann. § 77-29-1. Therefore, any malfeasance by the defendants with regard to the

120 day disposition demand could be responsible for at most a 64 day delay

before Mr. Smith’s trial. Such delay cannot rise to the level of “presumptively

prejudicial,” enunciated in Barker, and we therefore do not reach the remaining

three factors. See Barker, 407 U.S. at 530.

Mr. Smith has failed to state a claim on which relief can be granted. 

We accordingly AFFIRM the district court’s dismissal.

 

 Entered for the Court,

Judge Robert Henry

Circuit Judge