* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN J. MCKIBBEN,

Plaintiff-Appellant,

v. WALT PARSONS, MATT LINDVALL, ANDREW MCDONALD, DANA DELANY, TERRY HALFORD, PETER MICHAELSON, JANET FOLSOM, JOSEPH BENNETT, TIM MIENERT, JAY TROMBETTA; WARREN HUMBLE, CAROL JENNY, WELDON MCDONALD, CAROL MCDONALD, DAN RUPP, MR. JAMES FARENHOLTZ, BETH KRULEWITCH, MRS. JAMES FARENHOLTZ, individually and in their official capacities,

Defendants-Appellees. No. 96-1468 (District of Colorado) (D.C. No. 94-N-2631)

ORDER AND JUDGMENT *

Before SEYMOUR , PORFILIO, and MURPHY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Appellant John J. McKibben appeals the dismissal of his civil suit brought under 42 U.S.C. § 1983 in the United States Distric t Court for the District of Colorado. In 1991, McKibben was convicted in the E agle County District Court, Colorado, of second degree sexual assault. McKibbe n subsequently sued eighteen individuals involved in his prosecution, including the victim, the victim’s parents, the prosecutors, law enforcement officers, witnesse s, his own attorneys, and a court clerk. McKibben’s complaint is a rambling, c onfusing string of factual allegations which, McKibben argues, support his cla im that the defendants conspired against him. The magistrate judge found that McKibben “provided no evidence of any conspiracy or any deprivation of a constitutional r ight that would allow recovery under § 1983.” Report and Recommendation at 12. T he judge continued, “On the contrary, the pleadings submitted by [McKibben] ref lect the actions of an individual who has attempted to use this case as a means of retaliation against anyone who was remotely involved in his conviction . . . .” Id. at 12-13. The magistrate judge then recommended that the districtcourt dismiss the case with1 The relevant provision of 1915(d) is now codified at 28 U.S.C.

§ 1915(e)(2)(B)(i).

2 Although the district court dismissed this case aft er the enactment of the Prison Litigation Reform Act (“PLRA”), which establ ished the “prior occasions” rule codified at 28 U.S.C. § 1915(g), McKibben file d his complaint prior to the PLRA’s enactment. Nonetheless, counting the dismis sal of the complaint as a “prior occasion” does not raise concerns of statuto ry retroactivity. See Green v. Nottingham , 90 F.3d 415, 420 (10th Cir. 1996) (holding retroa ctivity concerns not raised by counting “prior occasion” under § 1915(g) where filing of complaint as well as district court dismissal occurred prior to PLRA enactment). -3- prejudice because, among other reasons, it was mali cious, within the meaning of 28 U.S.C. § 1915(d). 1 The district court agreed with the magistrate jud ge’s recommendations, determined that the action was fri volous, and dismissed the

case. For substantially the reasons set forth in the magi strate’s Recommendation of August 18, 1995, and the district court’s Order of September 23, 1996, we
DISMISS the appeal as frivolous. As an appeal dismissed o n grounds of being frivolous, 28 U.S.C. § 1915(g) is triggered for the purpose of counting a “prior occasion.” Furthermore, we note the district courtdismissed the case for failure to state a claim upon which relief could be granted , with the additional determination that the action was frivolous, thereb y triggering the counting of an additional “prior occasion.” 2 A prisoner may not proceed under 28 U.S.C. § 1915 if he has, on three or more prior occasions, filed actions or brought appeals which-4-

are frivolous or fail to state a claim upon which r elief can be granted. 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge