## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 23 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL BATH, Plaintiff - Appellant,

v. COLORADO DEPARTMENT OF CORRECTIONS; JOE, Executive Director, Colorado D.O.C.; GARY GOLDER, WARDEN, S.C.F. C.D.O.C.; CAROL SOARES, Associate Warden, S.C.F. C.D.O.C.; MARK BRODDUS, Associate Warden, S.C.F. C.D.O.C.; K. DAIKER, Case Manager, S.C.F. C.D.O.C.; JOHN DOE BACKER, Case Manager, S.C.F. C.D.O.C.; JON CRUSSELL, Case Manager, S.C.F. C.D.O.C.; J. MARTIN, Case Manager, S.C.F. C.D.O.C.; JOHN DOE McMONAGLE, Case Manager, S.C.F. C.D.O.C.; ROGER LAWLESS, Case Manager, S.C.F. C.D.O.C.; JOHN DOE CLINE, Capt., C.M. III Case Manager, S.C.F. C.D.O.C.; JANE DOE CONRAD, C.M. III Case Manager, S.C.F. C.D.O.C.; PRESTON TENEYCK, Food Service, S.C.F. C.D.O.C.; JOHN DOE WILDENSTEIN, Capt., S.C.F. C.D.O.C.; JOHN DOE USARY, Capt. S.C.F. C.D.O.C.; RAYMOND LT., HEARINGS OFFICER, S.C.F. C.D.O.C.; TOM BULLARD, Hearings Officer, S.C.F. C.D.O.C.; JOHN DOE ZENT, Case Manager, S.C.F. No. 04-1123 (D. Colorado) (D.Ct. No. 04-Z-342)*This order is not binding precedent except under the doctrines of law of the case,

res judicataand collateral estoppel. The court generally disfavors the citation of orders; nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). -2- C.D.O.C. Defendants - Appellees.

ORDER DENYING IN FORMA PAUPERIS AND DISMISSING APPEAL *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument. Michael Bath, along with other inmates at the Sterl ing Correctional Facility in Sterling, Colorado, filed a pro se complaint on February 25, 2004 1 alleging prison officials violated their federal constitutio nal and state law rights, including their Eighth Amendment right to be free from cruel and usual punishment and their Fourteenth Amendment right to due process, wh en they were administratively segregated within the prison popul ation. On March 22, 2004, the2 The court dismissed an Establishment Clause claim for failure to exhaust

administrative remedies. See 42 U.S.C. § 1997e(a). The court declined to assume supplemental jurisdiction over the state law claim inasmuch as it dismissed the federal claims. See 28 U.S.C. § 1367(c)(3).

3 On appeal, Bath for the first time claims that prison officials acted with deliberate indifference toward his medical needs, in violation of the Eighth Amendment, because the administrative segregation put him “under mental distress to the point of suicide . . . .” (Appellant Br. at 2.) We do not consider issues which are raised for the first time on appeal except to review for plain error resulting in manifest injustice. United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995). We have reviewed the record and find no plain error; therefore, we decline to consider the claim.

4Bath accumulates two strikes as a result of this appeal, one due to the district court dismissal for frivolous claims and one due to our dismissal of the appeal as frivolous. See28 U.S.C. § 1915(g); Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3 775, 780-81 (10th Cir. 1999). -3- district court dismissed the Eighth and Fourteenth Amendment claims as frivolous under 28 U.S.C. 1915A(b)(1). 2 Bath individually appeals. Bath renews his claim that his Eight Amendment and Fourteenth Amendment due process rights were violated when he was segregated within the prison population. 3 Having reviewed Bath’s opening brief, we, like th e district court, cannot discern a reasoned, non-frivolous arg ument on the law and facts in support of the issues he raises on appeal. Accordingly, we DISMISS the appeal as frivolous. 4 Bath’s motion to proceed in forma pauperis is DENIED . Bath is ordered to pay the full appellate-4-

filing fee within twenty (20) days of this order.
Entered by the Court:

Terrence L. O’Brien United States Circuit Judge