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

### AUG 28 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JERRY ALLEN CLARK,

Petitioner-Appellant,

v. STATE OF OKLAHOMA; STATE OF UTAH; OKLAHOMA COUNTY PUBLIC DEFENDER’S OFFICE; “RESPONSIBLE PARTIES” IN THE OKLAHOMA COUNTY PUBLIC DEFENDER’S OFFICE; PAYNE COUNTY PUBLIC DEFENDER’S OFFICE; JENIFER M. CHAPEL, Assistant Public Defender, Payne County, State of Oklahoma; PAYNE COUNTY DISTRICT ATTORNEY’S OFFICE; OKLAHOMA COUNTY DISTRICT ATTORNEY’S OFFICE; GLEN WINTERS, Assistant Public Defender, Payne County, State of Oklahoma; PAUL ANDERSON, Acting District Attorney, Payne County, State of Oklahoma; LEE SMITH, D.E.A. Agent; D.L.R. SMITH, D.E.A. Agent,

Respondents-Appellees.

JERRY ALLEN CLARK,

Plaintiff-Appellant,

v. No. 99-6282 (D.C. No. 99-CV-655-M) (W.D. Okla.)

No. 99-6414 (D.C. No. 99-CV-1120-M) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the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. -2- STATE OF OKLAHOMA; OKLAHOMA COUNTY SHERIFF’S DEPARTMENT; CLEVELAND COUNTY SHERIFF’S DEPARTMENT,

Defendants-Appellees

ORDER AND JUDGMENT *

Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. We have consolidated these appeals for purposes of disposition. In case No. 99-6282, petitioner-appellant Jerry Allen Clarkappeals from the district court’s order dismissing his complaint filed pursuant to 42 U.S.C. § 1983. In case No. 99-6414, Clark appeals from the district court’ s order dismissing as1 Section 1915(e)(2)(B) provides that notwithstanding the payment of a filing

fee or partial filing fee by a prisoner proceeding in forma pauperis, the district court may dismiss an action if it determines that t he action “(i) is frivolous or malicious; (ii) fails to state a claim on which rel ief may be granted; or (iii) seeks monetary relief against a defendant who is immune f rom such relief.” It is unclear on which subsection of this statute the dis trict court relied for dismissal. If it concluded that the action was frivolous or ma licious (subsection (i)), we would review its determination for abuse of discretion. See McWilliams v. Colorado , 121 F.3d 573, 574-75 (10th Cir. 1997). If it con cluded that the action failed to state a claim (subsection (ii)), we wouldreview the dismissal de novo. See Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999). We need not decide which standard of review applies , because under either standard, we would affirm the district court’s dism issal. -3- premature his petition for writ of habeas corpus, f iled pursuant to 28 U.S.C. § 2241.
Case No. 99-6282 Clark filed his § 1983 complaint pro se and in form a pauperis. In a well-reasoned report and recommendation, adopted bythe district court, a magistrate judge recommended that Clark’s § 1983 cl aims against all defendants except Glen Winters be dismissed with prejudice, an d that the claim against Glen Winters be dismissed without prejudice, all pursuant to 28 U.S.C. § 1915(e)(2)(B). 1 Having carefully reviewed the issues Clark raises , we conclude that the district court’s decision dismissing his c omplaint should be affirmed for substantially the same reasons discussed in the mag istrate judge’s report and recommendation of June 24, 1999, and the district c ourt’s order of July 13, 1999.-4-

Case No. 99-6414 Clark brought this case as a mandamus action, seeki ng to compel the Oklahoma state courts to hear and decide his petiti ons for habeas corpus pending in state court. He later filed pleadings including additional claims and indicating that he wished his action to be recharacterized as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district court construed the action as a § 2241 habeas petition and dismissed it as prematur e, because Clark had failed to exhaust his state remedies. See 28 U.S.C. § 2254(b)(1); Montez v. McKinna , 208 F.3d 862, 866 (10th Cir. 2000) (holding § 2241 peti tioner must exhaust state remedies). Having carefully reviewed the issues Cl ark raises, we affirm for substantially the same reasons discussed in the mag istrate judge’s report and recommendations of August 23, 1999, and the distric t court’s order dated October 18, 1999. The judgments of the United States District Court f or the Western District of Oklahoma are AFFIRMED. All pending motions are DENIED. We remind appellant of his ongoing obligation to make partial payments toward the costs and-5-

filing fees for these appeals, as assessed by this court on October 4, 1999 (case No. 99-6282) and February 18, 2000 (case No. 99-641 4).

Entered for the Court

Bobby R. Baldock Circuit Judge