*

 This order and judgment is not binding precedent, except under the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

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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 24 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

EDWARD RICHARD NEWTON,

Plaintiff - Appellant,

v. No. 97-1372

OFFICER ABEYTA, in her individual

capacity; OFFICER ORTHON, in his

individual capacity,

Defendants - Appellees.

(D.C. No. 97-D-1285)

(D. COLO.)

 

ORDER AND JUDGMENT*

 

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**

 

Plaintiff Edward Richard Newton, appearing pro se, appeals the district court’s

order dismissing his 42 U.S.C. § 1983 action as “legally frivolous and for failure to state a

claim upon which relief may be granted.” Specifically, Plaintiff argues that the district
1 Accordingly, Plaintiff’s motion to proceed in forma pauperis is denied.

2

court erroneously concluded that Defendants did not subject him to cruel and unusual

punishment in violation of the Eighth Amendment. Our jurisdiction arises under 28

U.S.C. § 1291. We review the district court’s dismissal de novo, Sutton v. United Air

Lines, Inc., 130 F.3d 893, 896 (10th Cir. 1997), and dismiss Plaintiff’s appeal as legally

frivolous.1

Plaintiff is incarcerated at the Colorado Territorial Correctional Facility in Cañon

City, Colorado. He alleges that on or about September 16, 1996, for purposes of

harassing and molesting him, Defendants conducted a shakedown of his cell. Plaintiff

contends that during the course of the shakedown, Defendants “deliberately walked all

over [his] bed with soiled infectious shoes that they just used to walk all over the Dairy

Farm.” Plaintiff claims that after sleeping on the allegedly contaminated bed, certain

surgical lacerations on his body became infected and caused him unnecessary physical

and emotional pain. Plaintiff contends that Defendants knew that walking on his bed

could possibly cause infection. Therefore, he argues that Defendants’ actions violated his

Eighth Amendment right to be free from cruel and unusual punishment and that each

Defendant should be forced to pay him $50,000 in compensatory damages and $50,000 in

punitive damages.

We have reviewed the parties’ briefs, pleadings, and the entire record before us. 

For substantially the same reasons set forth in its order dismissing Plaintiff’s claim, we
3

agree with the district court that Plaintiff’s claim is legally frivolous and does not state a

claim upon which relief may be granted. We further conclude that this appeal is frivolous

under 28 U.S.C. § 1915(g) and therefore constitutes a “prior occasion” within the

meaning of that section. 

APPEAL DISMISSED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge