* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### JUL 31 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES JOHN McCARTY, Plaintiff-Appellant,

v. MARGARET GALLANT, Medical Records Director, Wexford Health Services; JUDY UPHOFF, in her official capacity as Director, Wyoming Department of Corrections, Defendants-Appellees. No. 97-8002 (D.C. No. 96-CV-118) (D. Wyo.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , 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 ase is therefore ordered submitted without oral argument.-2-

On June 6, 1996, Mr. Charles John McCarty filed thi s pro se civil rights complaint, pursuant to 42 U.S.C. § 1983, against Ms . Margaret Gallant, the Medical Records Director for Wexford Health Service s at the Wyoming State Penitentiary in Rawlins, Wyoming. Mr. McCarty alle ged he was subjected to cruel and unusual punishment in violation of his Ei ghth Amendment right because Ms. Gallant canceled his surgical appointments at t he Veterans Administration Hospital in Cheyenne, Wyoming (VA Hospital) and fal sified the doctor's orders concerning those appointments. On September 26, 19 96, Mr. McCarty amended his complaint to add defendant Judith Uphoff, Direc tor of the Wyoming Department of Corrections, and allegations he was b eing denied medical treatment. Mr. McCarty alleged Ms. Uphoff violated his constitutional right to be free from cruel and unusual punishment by refusing to allow him to receive medical treatment from the VA Hospital.

On December 18, 1996, the district court dismissed Mr. McCarty's complaint as frivolous and for failure to state a c laim upon which relief can be granted. The district court found Mr. McCarty "fai l[ed] to present any facts to establish cruel and unusual punishment" and that hi s claims were "clearly baseless."1 In his statement of issues, Mr. McCarty alleges the district court usurped

the jury's fact-finding role in determining he did not establish the requisite culpable state of mind of the defendants (Brief of Aplt. at iv); however, the district court made no such finding. ( See ROA, Vol. 1, Tab 20.) To state a claim for cruel and unusual punishment, a plaintiff must allege facts showing prison officials were deliberately indifferent to a prison er's serious medical needs. Estelle v. Gamble , 429 U.S. 97, 106 (1976); Ramos v. Lamon , 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). The district court found M r. McCarty failed to make any allegations showing deli berate indifference on the part of the defendants. (Id . at 3.) Finding a plaintiff failed to make any allegations on an issue does not equate to a findin g on the issue itself.

2To the extent Mr. McCarty contends he was denied due process of law in the handling of his grievances, Mr. McCarty raises a new issue on appeal, which will not be considered by this court. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (as a general rule, this court will not consider an issue on appeal that was not raised in the districtcourt).

3 The district court did not specify whether it dis missed Mr. McCarty's complaint pursuant to § 1915(e)(2)(B). However, fo r the purposes of this appeal, -3- On appeal, Mr. McCarty contends: the district court erred in dismissing his complaint; 1 the district court held him to a higher standard o f performance than allowed for pro se plaintiffs; and the district court's sua sponte dismissal of his complaint denied him his right to redress, right to a fair trial, right to be heard, and right to due process. 2

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 in disputably meritless legal theory or if it is founded on clearly baseles s factual contentions. 3 Schlicherwe assume it did since the court can think of no ot her provision at this time that

permits sua sponte dismissal as frivolous.

4As an aside, we note an interesting anomaly. In Schlicher , we stated dismissal as frivolous pursuant to § 1915(e)(2)(B)( i) is reviewed for abuse of discretion. However, in Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 854 (10th Cir. 1996), and Maez v. Mountain Tel. & Tel., Inc. , 54 F.3d 1488, 1496 (10th Cir. 1995), we stated dismissal for failure to state a c laim under Fed. R. Civ. P. 12(b)(6) is reviewed de novo . We have not yet determined whether dismissal for failure to state a claim pursuant to § 1915(e)(2)(B )(ii) is reviewed for abuse of discretion, similar to other subsections of § 1915, or de novo , similar to the same standard as a Rule 12(b)(6) "failure to state a cla im." This is an interesting question, which we reserve for another day.

5 Since we find the district court properly dismiss ed Mr. McCarty's complaint as frivolous, we do not reach the distric t court's dismissal for failure to state a claim. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (this court may affirm on any grounds support ed by the record).

-4- v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). We review the dismissal of a complaint a s frivolous under § 1915(e)(2)(B) for abuse of discretion. Schlicher , 111 F.3d at 779. 4

After review of the record, we hold the district co urt did not abuse its discretion in dismissing Mr. McCarty's complaint as frivolous. 5 We agree with the district court's well-reasoned December 18, 199 6 order. Because we agree with the district court that Mr. McCarty's complaint was frivolous, his arguments that the district court denied him his right to a f air trial, right to redress, right to-5-

be heard and right to due process are wholly without merit. Additionally, although Mr. McCarty is correct that the courts mus t construe pro se pleadings more liberally than non- pro se pleadings, there is nothing in the district court' s order or in the record to support Mr. McCarty's all egation the district court failed to liberally construe his pro se pleadings. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (we are obliged to construe pro se pleadings liberally).

Consequently, we conclude Mr. McCarty's appeal is f rivolous within the meaning of § 1915(e)(2)(B)(i) and DISMISS the appeal. Because this appeal is dismissed as frivolous pursuant to § 1915(e)(2)(B)( i), this appeal counts as a "prior occasion" under 28 U.S.C. § 1915(g).

In addition, Mr. McCarty's Notice of Defendant's Fa ilure to Provide Brief requesting this court to impose sanctions on defend ants/appellees for failure to file a reply brief is DENIED

.
Entered for the Court WADE BRORBY United States Circuit Judge