*This order and judgment is not binding precedent, except under the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

DEC 18 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HORACE BARNES, 

Plaintiff -Appellant, No. 98-3188

v. (D.C. No. 98-CV-3165-GTV)

KATHLEEN M. HAWK, Director of

the Federal Bureau of Prisons;

PATRICK R. KANE and G. L.

HERSHBERGER, Directors of Federal

Bureau of Prisons, North Central

Regional Office; J. W. BOOKER, JR.,

Warden, U.S. Penitentiary

Leavenworth; F. W. APPLE, Warden

Operation, U.S. Penitentiary,

Leavenworth; PHILLIP K. HILL, Dr.,

MD, Clinic Director, U.S.

Penitentiary, Leavenworth; D.

SHEPARD, Hospital Health Service

Administrator, U.S. Penitentiary,

Leavenworth; and KAREN TODD,

Hospital Health Service Assistant

Medical PA Administrator, U.S.

Penitentiary, Leavenworth, 

(D. Kan.)

Defendants -Appellees.

 

ORDER AND JUDGMENT*
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Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining Plaintiff-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); 10th Cir. R.

34.1.9. The case is therefore ordered submitted without oral argument.

Proceeding pro se and in forma pauperis, Plaintiff filed a complaint

pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his rights under

the Eighth and First Amendments to the United States Constitution. Plaintiff

alleged that Defendants, all of whom are prison officials or medical personnel,

were deliberately indifferent to his medical needs to such an extent that they

violated the Eighth Amendment prohibition against cruel and unusual punishment. 

He also argued that Defendants’ failure to properly investigate and respond to his

administrative grievances amounted to a violation of his First Amendment rights. 

The district court granted Plaintiff leave to proceed in forma pauperis but

dismissed his complaint for failure to state a claim upon which relief can be

granted pursuant to 42 U.S.C. § 1997e(c). Plaintiff timely filed a notice of appeal

and a motion for leave to proceed in forma pauperis on appeal. The district court

subsequently granted Plaintiff leave to proceed in forma pauperis on appeal. 
-3-

On appeal, Plaintiff asserts that the district court erred in concluding that

he did not make out a violation of the Eighth Amendment. He also argues that the

district court erroneously failed to conduct a sufficient investigation of the

allegations set forth in his complaint, failed to construe his complaint liberally in

accordance with his pro se status, and failed to allow him to amend his complaint

to correct any shortcomings. We exercise jurisdiction pursuant to 28 U.S.C. §

1291. 

This court has not previously set forth the appropriate standard of review

for dismissals under 42 U.S.C. § 1997e(c). Generally, we review de novo a

Federal Rule of Civil Procedure 12(b)(6) dismissal of a complaint for failure to

state a claim. See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). 

We also have reviewed de novo a dismissal for failure to state a claim pursuant to

both 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 12(b)(6). See Brown v. New Mexico

Dist. Court Clerks, 141 F.3d 1184 (10th Cir. 1998) (Table); cf. McGore v.

Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) (determining that dismissals

under 28 U.S.C. §§ 1915(e)(2) and 1915A should be reviewed de novo). Because

we agree with the analysis of our sister circuit in Bazrowx v. Scott, 136 F.3d

1053, 1054 (5th Cir.), cert. denied sub nom. Bazrowx v. Johnson, __ U.S. __, 119

S. Ct. 156 (1998), we conclude that the appropriate standard of review for

dismissals pursuant to 42 U.S.C. § 1997e(c) for failure to state a claim is de novo. 
-4-

After carefully considering Plaintiff’s brief and reviewing the record, we

agree with the district court’s well-reasoned and thorough opinion that Plaintiff

has not stated a claim upon which relief can be granted. Plaintiff’s allegations

that the district court did not give proper credence to his arguments in light of his

pro se status do not alter our conclusion. Because Plaintiff is proceeding pro se,

we have construed his pleadings liberally. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972); Riddle, 83 F.3d at 1202. Although Plaintiff appears to be capable

of presenting his arguments clearly, he has not alleged “sufficient facts on which

a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). Therefore, we AFFIRM for substantially the reasons stated in

the district court’s Order filed June 18, 1998.

Entered for the Court

Monroe G. McKay

Circuit Judge