* This order and judgment is not binding precedent, except under the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

APR 9 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TIMOTHY GORDON BERRY,

Plaintiff-Appellant,

v.

STATE OF OKLAHOMA;

OKLAHOMA DEPARTMENT OF

CORRECTIONS DIRECTOR;

JAMES L. SAFFLE; PATRICK

CRAWLEY; NORMA BULLOCK; 

ANITA WOOTEN; WACKENHUT

CORRECTIONS CORPORATION;

DAYTON J. POPPELL,

Defendants-Appellees,

and

SCOTT BIGHORSE and MARY

WOOTEN,

Defendants.

No. 01-6281

(D.C. No. 01-CV-237-M)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.
1 With respect to Count Three in Mr. Berry’s Complaint, the magistrate judge

concluded that Mr. Berry had stated a claim against defendants Scott Bighorse

and Mary Wooten based on his allegation that he was transferred to a private

prison in retaliation for exercising his constitutional rights. The magistrate judge

also concluded that venue over Count Three was not proper in the Western

District of Oklahoma, and the magistrate judge recommended that the claim be

transferred under 28 U.S.C. § 1406(a) to the Northern District of Oklahoma. The

district judge adopted the magistrate judge’s recommendation, and, in the same

order dismissing the fifteen additional claims asserted by Mr. Berry, the district

judge “transfer[red] the claim raised in Count Three . . . to the . . . Northern

District of Oklahoma.” R., Doc. 9 at 2. Although the district judge did not

expressly sever Count Three under Fed. R. Civ. P. 21, we conclude that the

district judge intended to sever Count Three as indicated by her language

transferring only “the claim raised in Count Three.” As a result of the severance,

it was not necessary for the district judge to certify her judgment dismissing

Mr. Berry’s other claims under Rule 54(b), and this court has jurisdiction to hear

(continued...)

-2-

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(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Timothy Gordon Berry, a state prisoner appearing pro se, appeals

the district court’s order and the supporting judgment dismissing fifteen of the

sixteen claims he asserted in his 42 U.S.C. § 1983 civil rights complaint. Our

jurisdiction arises under 28 U.S.C. § 1291, and we conclude that the district court

entered a final judgment that is appealable to this court even though the district

court did not certify its judgment under Fed. R. Civ. P. 54(b). 1

 Nonetheless,
1

(...continued)

this appeal without a Rule 54(b) certification.

-3-

because Mr. Berry’s appeal to this court is frivolous, we dismiss the appeal under

28 U.S.C. § 1915(e)(2)(B)(i).

In his complaint, Mr. Berry claimed that: (1) he was wrongfully terminated

from his prison work assignment as a legal research assistant; (2) he was not paid

the federally mandated minimum hourly wage for work he performed in prison

and was denied the opportunity to work for a wage; (3) he was punished and

denied certain privileges for refusing to work for no compensation; (4) he was

subjected to involuntary servitude in violation of the Thirteenth Amendment;

(5) he was denied certain statutory earned credits and has therefore been subjected

to a lengthier term of imprisonment; (6) the conditions of his confinement were

unconstitutional; (7) certain rules and regulations and related administrative

procedures of the Oklahoma Department of Corrections were unlawful; (8) an

assistant attorney general of the State of Oklahoma misrepresented the controlling

law and committed malpractice during a state-court habeas proceeding; and (9) he

has been denied access to the courts. 

After thoroughly analyzing each of Mr. Berry’s claims in light of the

governing legal authorities, the magistrate judge concluded that Mr. Berry had

failed to state a claim on which relief may be granted and/or that his claims were
2 As noted by the magistrate judge, filing restrictions have been imposed on

Mr. Berry due to his extensive history of filing frivolous lawsuits in the Western

District of Oklahoma. See Berry v. Fields , No. 94-6281, 1994 WL 697314 at **1

(10th Cir. Dec. 13, 1994) (unpublished). The magistrate judge concluded that Mr.

Berry substantially complied with the filing restrictions, and she therefore

examined the merits of his claims.

-4-

frivolous. The magistrate judge therefore recommended to the district judge that

Mr. Berry’s claims be dismissed under § 1915(e)(2)(B)(i) and (ii), 2 and the

district judge adopted the magistrate judge’s recommendation and dismissed

Mr. Berry’s claims. The district judge also determined that the dismissal counts

as a “prior occasion” or “strike” for purposes of the “three strikes” provision in 

§ 1915(g). In addition, the district judge denied Mr. Berry’s motion for leave to

proceed on appeal in forma pauperis, concluding, under § 1915(a)(3), that this

appeal was not taken in good faith. 

We review the district court’s dismissal for failure to state a claim de novo. 

See Gaines. v. Stenseng , 292 F.3d 1222, 1224 (10th Cir. 2002). We review the

district court’s § 1915(e) frivolousness dismissal for an abuse of discretion. See

McWilliams v. Colorado , 121 F.3d 573, 574-75 (10th Cir. 1997). The standard of

review is not determinative of this appeal, however, because we reach the same

conclusions under either the de novo or the abuse-of-discretion standard of

review. 
3 We note that Mr. Berry has two prior strikes in the Western District of

Oklahoma based on the dismissals of his § 1983 complaints in Case Nos. 92-CV174 and 94-CV-790. The district court’s dismissal in this case also counts as a

separate strike, giving Mr. Berry a present total of four strikes for purposes of 

§ 1915(g) and any future civil actions he files in federal court.

-5-

For substantially the same reasons set forth in the magistrate judge’s report

and recommendation dated May 10, 2001, see R., Doc. 6 at 7-24, we agree that

Mr. Berry’s claims are frivolous and/or fail to state a claim. We also agree with

the district judge that this appeal was not taken in good faith. Accordingly, we

deny Mr. Berry’s motion under § 1915(a)(1) for leave to proceed on appeal in

forma pauperis; we order Mr. Berry to render immediate payment of the unpaid

balance due on the filing fee; and we dismiss this appeal as frivolous. Further,

the dismissal of this appeal counts as a “prior occasion” or “strike” for purposes

of the “three strikes” provision in § 1915(g). 3

This appeal is DISMISSED. We also DENY Mr. Berry’s “Motion and

Brief to Expand/Supplement the Record and for Leave to Amend/Supplement Pro

Se Civil Rights Complaint,” which he filed in this court on March 24, 2003.

Entered for the Court

Paul J. Kelly, Jr. 

Circuit Judge