UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

J.C. BERRY,

 Plaintiff - Appellant,

v.

OKLAHOMA DEPARTMENT OF 

CORRECTIONS, JUSTIN JONES, 

MIKE ADDISON, MICHAEL 

JACKSON, GLENDA LEE, THOMAS 

JOHNSTON, STATE OF OKLAHOMA,

Defendants - Appellees.

No. 09-6268

(D.C. No. 5:09-CV-01014-D)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, EBEL and LUCERO, Circuit Judges. 

 

 Plaintiff-Appellant J.C. Berry, an inmate in the custody of the Oklahoma 

Department of Corrections (“DOC”), appeals from the dismissal of his civil action 

brought against the State of Oklahoma, the DOC and five DOC employees. We affirm. 

 

* After examining appellant=s brief and the 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)(2) and 10th Cir. R. 34.1(G). The case is 

therefore ordered submitted without oral argument. This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. 

R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 20, 2010

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 09-6268 Document: 01018481269 Date Filed: 08/20/2010 Page: 1 
2 

 Berry alleged two claims under 42 U.S.C. § 1983. First, he claimed that 

Defendants were deliberately indifferent to his serious medical needs, in violation of the 

Eighth Amendment. In support of that claim, Berry alleged: He had been receiving 

prescription medication for his sinus condition; a nurse informed him that the prescription 

for that medication was about to expire and he would need to renew it by completing a 

form entitled “Request for Service”; Berry believed he did not have to fill out such a form 

and so he, instead, filled out a form entitled “Request to Staff”; because he refused to fill 

out the “Request for Service” form, prison officials did not renew Berry’s prescription. 

 Second, Berry claimed that Defendants conspired to deprive him of his rights to 

redress and access to the courts protected by the First and Fourteenth Amendments. In 

support of that claim, Berry alleged that, after he was denied his prescription sinus 

medication, he filed administrative grievances which went unanswered or were answered 

in an untimely manner. 

 The district court dismissed Berry’s action under 28 U.S.C. § 1915A(b)(1), 

without prejudice to his filing a new action.1

 Berry now challenges that decision on 

appeal. 

 Section 1915A(b)(1), in pertinent part, permits the district court to dismiss an 

inmate’s complaint if it “fails to state a claim upon which relief may be granted.” “We 

 

1

 Because it appears that the “‘district court order expressly and unambiguously 

dismisse[d] [the] entire action, th[is] order is final and appealable.’” Phillips v. Humble, 

587 F.3d 1267, 1271 (10th Cir. 2009) (quoting Moya v. Schollenbarger, 465 F.3d 444, 

450 (10th Cir. 2006)). 

Appellate Case: 09-6268 Document: 01018481269 Date Filed: 08/20/2010 Page: 2 
3 

review de novo the dismissal of an action under 28 U.S.C. § 1915A for failure to state a 

claim.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). In conducting such 

review, “[w]e must accept all the well-pleaded allegations of the complaint as true and 

must construe them in the light most favorable to the plaintiff.” Id. (quotation omitted). 

“We review the complaint for plausibility; that is, to determine whether the complaint 

includes enough facts to state a claim to relief that is plausible on its face.” Id. (quotation 

omitted). Because Berry is acting pro se, we liberally construe his pleadings. See Haines 

v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). 

 For substantially the reasons stated in the district court’s decision, we AFFIRM 

the dismissal of Berry’s § 1983 action. We also DENY his request of this court for entry 

of default.2

 

 ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge 

 

2

 In March 2010, Berry filed with this court “An affidavit for Entry of Default.” In that 

document, he argued that, because Defendants had failed to file a response to his opening 

appellate brief, he was entitled to an entry of default under Fed. R. Civ. P. 55(a). The 

reason Defendants did not file an appellate brief, however, was because they were never 

served with the complaint while Berry’s action was pending in district court. The district 

court, instead, acting pursuant to 28 U.S.C. § 1915A(b)(1), dismissed Berry’s action 

before ever ordering service on Defendants. So there is no default, in the district court or 

on appeal. 

Appellate Case: 09-6268 Document: 01018481269 Date Filed: 08/20/2010 Page: 3