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 This order is not binding precedent except under the doctrines of law of the case,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 judicata and 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).

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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, 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(G). The case is

therefore ordered submitted without oral argument.

Michael Bath, along with other inmates at the Sterling Correctional Facility

in Sterling, Colorado, filed a pro se complaint on February 25, 20041 alleging

prison officials violated their federal constitutional 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, when they were

administratively segregated within the prison population. On March 22, 2004, the
2The 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).

3On 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. See 28 U.S.C. § 1915(g); Jennings v. Natrona County Det. Ctr. Med. Facility,

175 F.3 775, 780-81 (10th Cir. 1999).

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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 the district

court, cannot discern a reasoned, non-frivolous argument 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 
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filing fee within twenty (20) days of this order. 

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge