UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ PHILLIP LEE KELLEY, Plaintiff - Appellant,

v. KEVIN STITT; LARRY MORRIS; ADAM LUCK; SCOTT WILLIAMS; ALLEN MCCALL, Defendants - Appellees. No. 23-6200 (D.C. No. 5:23- CV-00747-R) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ Phillip Lee Kelley, an Oklahom a inmate appearing pro se, 1 appeals the dismissal of his 42 U.S.C. § 1983 claims ag ainst various prison o fficials. Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss this appeal as frivolous.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Kelley proceed s pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serv ing as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (1 0th Cir. 2005). FILED United States Court of Appeals Tenth Circuit 

### May 3, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-6200 Document: 010111042829 Date Filed: 05/03/2024 Page: 12 Mr. Kelley’s § 1983 complaint presented tw o claims: (1) that the governor of Oklahoma violated his consti tutional rights by not signing le gislation that would have brought about sentencing reform in the state and (2) that the lack of uniform criteria or specific rules governing Oklahoma’s pa rdon and parole pro ceedings denied him due process of law. He sought to proceed in forma pauperis (IFP), under 28 U.S.C. § 1915. He originally sought to jo in as plaintiffs thirty other prisoners, but only he signed the complaint. The magist rate judge recommended dismissal of all other plaintiffs. Mr. Kelley then amended his complaint. The magistrate judge then recommended dismissal of the amended comp laint for failure to state a claim. Mr. Kelley timely filed objections to th e recommendation. The district court overruled the objections, adopted the r ecommendation, and di smissed the action without prejudice. This appeal followed. “We review de novo the district court’ s decision to dismiss an IFP complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007). In so doing, “[w]e a pply the same standard of review . . . that we employ for Federal Ru le of Civil Procedur e 12(b)(6) motions to dismiss . . . .” Id. “Under this standard, we mu st accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Waller v. City & Cnty. of Denver , 932 F.3d 1277, 1282 (10th Cir. 2019) (internal quotation marks omitted). Mr. Kelley’s arguments on appeal do not engage with the reasoning in the district court’s order or in the magistra te judge’s report and recommendation. He Appellate Case: 23-6200 Document: 010111042829 Date Filed: 05/03/2024 Page: 23 reiterates the logic underlying his claims, but he in no way addresses the core reason for the dismissal: he “cannot use a § 1983 acti on to challenge the fact or duration of his confinement. He must seek federal habeas corpus relief (or appropriate state relief) instead.” Wilkinson v. Dotson , 544 U.S. 74, 78 (2005) (internal citations and quotation marks omitted). So, for the reasons set forth in the district court’s or der adopting the magistrate judge’s report and recommendation, we di smiss the appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). See Ford v. Pryor , 552 F.3d 1174, 1180 (10th Cir. 2008) (“An app eal is frivolous when the re sult is obvious.” (internal quotation marks omitted)). We deny Mr. Kelley’s mo tion to proceed IFP. See DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Ci r. 1991) (“In order to succeed on [an IFP] motion, an appellant must show . . . th e existence of a reasoned, nonfrivolous argument on the law and fact s in support of the issues raised on appeal.”). We also deny his mo tion for summary disposition. This dismissal, in addition to the district court’s dismissal, operates as a strike under § 1915(g), so Mr. Kelley now has two strikes. See Jennings v. Natrona Cnty. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999), overruled in part on other grounds , Coleman v. Tollefson , 135 S. Ct. 1759 (2015).

Entered for the Court
Bobby R. Baldock Circuit Judge Appellate Case: 23-6200 Document: 010111042829 Date Filed: 05/03/2024 Page: 3