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

### FEB 3 1998 

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

KENNETH B. JOHNSON,

Plaintiff-Appellant,

v. JUDY UPHOFF, individually, and in her official capacity as Wyoming Department of Corrections Director; JAMES FERGUSON, individually, and in his official capacity as Wyoming Department of Corrections State Penitentiary Warden; WILLIAM HETTGAR, individually, and in his official capacity as Wyoming Department of Corrections State Penitentiary Assistant Warden; BILLY KLINE, individually, and in his official capacity as Wyoming Department of Corrections State Penitentiary Security Manager; JERRY STEELE, individually, and in his official capacity as Wyoming Department of Corrections State Penitentiary Medium Security Unit Manager; RONALD G. RUETTGERS, individually, and in his official capacity as Wyoming Department of Corrections State Penitentiary Compliance/Audit Officer; DAVID EBELL, individually, and in his official capacity as Corrections Officer, Wyoming Department of No. 97-8007 (D.C. No. 96-CV-164) (D. Wyo.)* This order and judgment is not binding precedent, e xcept under the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- Corrections State Penitentiary; MIKE PACHECO, individually, and in his official capacity as Corrections Officer, Wyoming Department of Corrections State Penitentiary; JANELL THAYER, individually, and in her official capacity as Wyoming Department of Corrections State Penitentiary Counselor,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is 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 c ase is therefore ordered submitted without oral argument. Plaintiff appeals the district court’s dismissal of his civil rights complaint, filed pursuant to 42 U.S.C. § 1983. The district c ourt dismissed the complaint-3-

as frivolous and for failure to state a claim upon which relief can be granted. We review the dismissal for an abuse of discretion, see McWilliams v. Colorado , 121 F.3d 573, 574-75 (10th Cir. 1997), and we affirm. Plaintiff was charged with introduction of contraba nd in a prison disciplinary proceeding. The disciplinary committe e held a hearing and found plaintiff guilty of the offense. Plaintiff appeale d, and the Warden upheld the committee’s decision. Plaintiff then filed this § 1983 action, arguing that his due process rights were violated in the disciplinary pr oceeding in several regards. The district court thoroughly analyzed plaintiff’s claims and dismissed them as frivolous and for failing to state a claim. We have reviewed the record, and we AFFIRM the district court’s Order Dismissing Civil Rights Complaint for substantiallythe same reasons set forth therein. This appeal is frivolous and counts as a “prior occasion” for purposes of 28 U.S.C. § 1915(g). The mandate shall issue fo rthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge