* This order and judgment is not binding precedent, e xcept under the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

### 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, 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. The c ause is therefore ordered submitted without oral argument.1 Murphy’s frivolous and malicious Emergency Motion f or Stay of the district court order imposing fees under the PrisonLitigation 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 Ap peals. Information regarding failure to pay fees as required by law will be prov ided to this court upon the filing of any future appeals in the Tenth Circuit. -2- Barton L. Murphy appeals 1 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 (“FT CA”), 28 U.S.C. §§ 1346, 2671-80. Murphy alleged that the United States vio lated his Eighth Amendment rights by exposing him to “asbestos containing mate rial” at the Federal Correctional Facility at Englewood, Colorado. The district court dismissed as frivolous and malicious all causes of action brough t pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971); 42 U.S.C. §§ 1983, 1985; and28 U.S.C. §§ 2201, 2202, on the ground that those exac t 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 fede ral criminal prosecution and no power to enforce a criminal statute. Finally, as t o Murphy’s claims under the FTCA, the district court held that those claims fai led on two grounds: (1) the sole-3-

basis of Murphy’s complaint was an alleged violatio n of Murphy’s Eighth Amendment rights, a constitutional tort that is notactionable under the FTCA, FDIC v. Meyer , 510 U.S. 471, 477-78 (1994); and (2) Murphy’s cla ims of “potential physical and actual emotional damages” w ere not actionable because the FTCA requires incarcerated felons to show physi cal injury, 28 U.S.C. § 1346(b)(2). This court exercises jurisdiction overMurphy’s appeal pursuant to 28 U.S.C. § 1291 and affirms. Under 28 U.S.C. § 1915(e)(2)(B), a district court m ay 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 basel ess” 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) f or abuse of discretion. See Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). This court has reviewed Murphy’s briefs and content ions, as well as the entire record on appeal. Upon review, we affirm fo r substantially the reasons set forth in the district court’s well-reasoned Order o f Dismissal dated November 27, 1996. We further note that Murphy’s appeal is friv olous or fails to state a claim under 28 U.S.C. § 1915(e)(2)(B) for purposes of cou nting “prior occasions” under 28 U.S.C. § 1915(g). Mr. Murphy is hereby notifiedthat three filings of cases that are dismissed or affirmed on the basis that th ey are frivolous or fail to state a-4-

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