* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 *-2-

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining Plaintiff-Appellant’s brief and the appellate record, this panel has determined unanimously that oral argumentwould 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 wi thout oral argument. Proceeding pro se and in forma pauperis, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unkn own Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971), alleging violations of his r ights under the Eighth and First Amendments to the United State s Constitution. Plaintiff alleged that Defendants, all of whom are prison off icials or medical personnel, were deliberately indifferent to his medical needs to such an extent that they violated the Eighth Amendment prohibition against c ruel and unusual punishment. He also argued that Defendants’ failure to properlyinvestigate and respond to his administrative grievances amounted to a violation o f his First Amendment rights. The district court granted Plaintiff leave to proce ed in forma pauperis but dismissed his complaint for failure to state a clai m upon which relief can be granted pursuant to 42 U.S.C. § 1997e(c). Plaintif f 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 Amend ment. He also argues that the district court erroneously failed to conduct a suff icient investigation of the allegations set forth in his complaint, failed to c onstrue his complaint liberally in accordance with his pro se status, and failed to al low him to amend his complaint to correct any shortcomings. We exercise jurisdict ion pursuant to 28 U.S.C. §
1291. This court has not previously set forth the appropr iate standard of review for dismissals under 42 U.S.C. § 1997e(c). General ly, 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 failu re 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 th at dismissals under 28 U.S.C. §§ 1915(e)(2) and 1915A should be r eviewed de novo). Because we agree with the analysis of our sister circuit inBazrowx 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 fai lure to state a claim is de novo.-4-

After carefully considering Plaintiff’s brief and r eviewing 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 gra nted. Plaintiff’s allegations that the district court did not give proper credenc e 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 b e capable of presenting his arguments clearly, he has not all eged “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