UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

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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.) 

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ORDER AND JUDGMENT*

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Before MATHESON, BALDOCK, and McHUGH, Circuit Judges. 

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Phillip Lee Kelley, an Oklahoma inmate appearing pro se,1

 appeals the 

dismissal of his 42 U.S.C. § 1983 claims against various prison officials. Exercising 

jurisdiction under 28 U.S.C. § 1291, we dismiss this appeal as frivolous. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Because Mr. Kelley proceeds pro se, we construe his arguments liberally, but 

we “cannot take on the responsibility of serving as [his] attorney in constructing 

arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 

425 F.3d 836, 840 (10th Cir. 2005). 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 3, 2024

Christopher M. Wolpert 

Clerk of Court

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2 

Mr. Kelley’s § 1983 complaint presented two claims: (1) that the governor of 

Oklahoma violated his constitutional rights by not signing legislation that would have 

brought about sentencing reform in the state and (2) that the lack of uniform criteria 

or specific rules governing Oklahoma’s pardon and parole proceedings denied him 

due process of law. He sought to proceed in forma pauperis (IFP), under 

28 U.S.C. § 1915. He originally sought to join as plaintiffs thirty other prisoners, but 

only he signed the complaint. The magistrate judge recommended dismissal of all 

other plaintiffs. Mr. Kelley then amended his complaint. The magistrate judge then 

recommended dismissal of the amended complaint for failure to state a claim. 

Mr. Kelley timely filed objections to the recommendation. The district court 

overruled the objections, adopted the recommendation, and dismissed 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 apply the same standard of 

review . . . that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to 

dismiss . . . .” Id. “Under this standard, we must 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 magistrate judge’s report and recommendation. He 

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reiterates the logic underlying his claims, but he in no way addresses the core reason 

for the dismissal: he “cannot use a § 1983 action 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 order adopting the magistrate 

judge’s report and recommendation, we dismiss 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 appeal is frivolous when the result is obvious.” (internal 

quotation marks omitted)). We deny Mr. Kelley’s motion to proceed IFP. 

See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (“In order to 

succeed on [an IFP] motion, an appellant must show . . . the existence of a reasoned, 

nonfrivolous argument on the law and facts in support of the issues raised on 

appeal.”). We also deny his motion 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 

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