*This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 26 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARTON LEE MURPHY,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;

FEDERAL BUREAU OF PRISONS;

WILLIAM PERRILL, Warden; and

FEDERAL CORRECTIONAL

INSTITUTION, ENGLEWOOD,

Defendants-Appellees.

No. 97-1000

(District of Colorado)

(D.C. No. 96-S-1946)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges. 

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.
1Murphy’s frivolous and malicious Emergency Motion for Stay of the

district court order imposing fees under the Prison Litigation Reform Act of 1996,

Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996) (codified at 28 U.S.C. §

1915(b)), is hereby DENIED. Mr. Murphy is hereby notified that he is under a

continuing obligation to pay the filing fee in this appeal as provided in the district

court’s orders of January 14, 1997, and January 27, 1997. Failure to pay the fees

as required by the district court’s orders will be recorded by the Office of the

Clerk of the Court of the United States Court of Appeals. Information regarding

failure to pay fees as required by law will be provided to this court upon the filing

of any future appeals in the Tenth Circuit.

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Barton L. Murphy appeals1 the district court’s dismissal pursuant to 28

U.S.C. § 1915(e)(2)(B) of Murphy’s complaint for damages against the United

States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,

2671-80. Murphy alleged that the United States violated his Eighth Amendment

rights by exposing him to “asbestos containing material” at the Federal

Correctional Facility at Englewood, Colorado. The district court dismissed as

frivolous and malicious all causes of action brought pursuant to Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971); 42 U.S.C. §§ 1983, 1985; and 28

U.S.C. §§ 2201, 2202, on the ground that those exact same claims had been raised

and decided in a prior suit brought by Murphy. The district court dismissed

Murphy’s claims under 18 U.S.C. §§ 241, 242, on the ground that as a private

citizen, Murphy had no standing to institute a federal criminal prosecution and no

power to enforce a criminal statute. Finally, as to Murphy’s claims under the

FTCA, the district court held that those claims failed on two grounds: (1) the sole
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basis of Murphy’s complaint was an alleged violation of Murphy’s Eighth

Amendment rights, a constitutional tort that is not actionable under the FTCA,

FDIC v. Meyer, 510 U.S. 471, 477-78 (1994); and (2) Murphy’s claims of

“potential physical and actual emotional damages” were not actionable because

the FTCA requires incarcerated felons to show physical injury, 28 U.S.C. §

1346(b)(2). This court exercises jurisdiction over Murphy’s appeal pursuant to 28

U.S.C. § 1291 and affirms.

Under 28 U.S.C. § 1915(e)(2)(B), a district court may dismiss an in forma

pauperis action as frivolous if the “claim [is] based on an indisputedly meritless

legal theory” or if it is founded on “clearly baseless” factual contentions. See

Neitzke v. Williams, 490 U.S. 319, 327 (1989). This court reviews the dismissal

of a complaint as frivolous under § 1915(e)(2)(B) for abuse of discretion. See

Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997).

This court has reviewed Murphy’s briefs and contentions, as well as the

entire record on appeal. Upon review, we affirm for substantially the reasons set

forth in the district court’s well-reasoned Order of Dismissal dated November 27,

1996. We further note that Murphy’s appeal is frivolous or fails to state a claim

under 28 U.S.C. § 1915(e)(2)(B) for purposes of counting “prior occasions” under

28 U.S.C. § 1915(g). Mr. Murphy is hereby notified that three filings of cases

that are dismissed or affirmed on the basis that they are frivolous or fail to state a
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claim under 28 U.S.C. § 1915(g) will result in him being unable to proceed pro se

under the provisions of § 1915.

ENTERED FOR THE COURT,

Michael R. Murphy

Circuit Judge