* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAR 28 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CYRUS D.A. BRASWELL, Plaintiff-Appellant,

v. No. 00-1403 DWAYNE ROBERSON; CHUCK PORCO; JENNIFER GRUNDY; LEE GREEN; R.E. HOLT, Defendants-Appellees. (D.C. No. 00-Z-1099) (D.Colo.)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Cyrus D.A. Braswell, a federal inmate appearing pro se, appeals a district2

court order dismissing the civil rights complaint h e brought against several prison officials pursuant to Bivens v. Six Unknown Named A gents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). Exercising jurisdiction und er 28 U.S.C. § 1291, we conclude that the appeal is legally frivolous an d dismiss pursuant to 28 U.S.C. § 1915A(b)(1). Braswell’s pro se complaint alleged the following s even causes of action: (1) prison official Dwayne Roberson violated Braswe ll’s Fifth Amendment due process rights by using a racial slur; (2) Robersonviolated Braswell’s Fourth Amendment right to privacy by placing him on the “n on-promotion” list for not unsealing his military record to verify whether he completed high school; (3) prison official Chuck Porco violated Braswell’s Fif th Amendment due process rights by placing him on “refusal status” for refus ing to pay a court-ordered fine; (4) unnamed prison officials violated Braswell’s Fi fth Amendment due process rights by removing money without permission from hi s inmate account; (5) prison officials Jennifer Grundy and Lee Green violated Br aswell’s First Amendment rights to freedom of expression and association by respectively charging and convicting Braswell of the disciplinary offense of running a business after he entered into a contingency fee agreement to represe nt another inmate in court; (6) Warden R.E. Holt violated Braswell’s right of acces s to the courts by implementing a more restrictive inmate telephone sc hedule; and (7) Warden Holt3

violated Braswell’s Fifth Amendment due process rig hts by failing generally to provide adequate training to prison personnel. Bra swell’s complaint sought injunctive relief and monetary damages exceeding $4 5,000,000. The district court screened Braswell’s pleading as required by 28 U.S.C. § 1915A(a) and dismissed the complaint in its entir ety. With the exception of the fourth cause of action, which was dismissed withoutprejudice because Braswell failed to exhaust his administrative remedies as re quired by 42 U.S.C. § 1997e(a), the district court held that each of Braswell’s cla ims was legally frivolous under 28 U.S.C. § 1915A(b)(1). As stated by the districtcourt, a legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or in which he asserts facts that do not support an arguable claim.
See Neitzke v. Williams , 490 U.S. 319, 325 (1989). Although it is settled law that we review a dismiss al for failure to exhaust administrative remedies de novo, Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000), “this court has not yet determined whet her a dismissal pursuant to § 1915A on the ground that the complaint is legallyfrivolous is reviewed de novo or for abuse of discretion,” Plunk v. Givens , 234 F.3d 1128, 1130 (10th Cir. 2000). We need not resolve that issue here, howeve r, because we would uphold the dismissal in its entirety under either standard of review for substantially the1 Braswell correctly notes on appeal that the distri ct court relied on Eighth

Amendment cases in dismissing his Fifth Amendment “ racial slur” claim, but this does not change the fact that, as with his remainin g Fifth Amendment claims, Braswell has not implicated a life, liberty or prop erty interest.

2 28 U.S.C. § 1915(g) provides: In no event shall a prisoner bring a civil action o r appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated ordetained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivol ous, malicious, or fails to state a claim upon which relief may be gra nted, unless the prisoner is under imminent danger of serious physic al injury. 4 same reasons set forth in the district court’s orde r dated September 8, 2000. 1 We have reviewed Braswell’s complaint and appellate brief, the district court’s order of dismissal, and the entire record o n appeal and we DISMISS this appeal as frivolous. Because we agree with the dis trict court that Braswell’s complaint was frivolous, he has incurred two strike s as a result of this litigation pursuant to the Prison Litigation Reform Act, 28 U. S.C. § 1915(g). 2 We further note that Braswell incurred two additional strikes while litigating in the Ninth Circuit. See Braswell v. Pugh , No. 99-35020, 2000 WL 84404 (9th Cir. Jan. 25, 2000); Braswell v. Cummings , No. 98-36059, 1999 WL 637921 (9th Cir. Aug. 17, 1999). Accordingly, Braswell is no longer entitledto proceed in forma pauperis in any federal lawsuit, other than habeas petitions , which do not involve “imminent danger of serious physical injury.” Whit e v. Colorado , 157 F.3d 1226, 1232 (10th Cir. 1998) (quoting 28 U.S.C. § 1915(g)) . Braswell is reminded that5

he remains obligated to continue making partial pay ments of the appellate filing fee pursuant to 28 U.S.C. § 1915(b). The mandate s hall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge