* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors citation of orders and judgment s; nevertheless, an order and judgment may be cited under the terms and condition s of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this panel has determined unanimously to honor the parties requestfor a decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore orde red submitted without oral argument. 

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

### JUL 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
ROBERT DALE STRALEY, Plaintiff-Appellant,

v. No. 99-4084 HANK GALETKA; COLLEEN (D.C. No. 98-CV-552-G) GABBITIES; TIM PARKER; JANENE (D. Utah) HUANG; H.L. PETE HAUN; JACK FORD; JIM LABOUNTY; SCOTT CARVER; NOLA PHILLIPS; RON SANCHEZ; DALE WRIGHT; SPENCER ROBINSON; CRAIG BALLS; BILLIE CASPER; ANTHONY JOHNSON; WES CHURCH; DAN TINGEY, Individually and in their official capacities, Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK and HENRY , Circuit Judges. **1 On July 26, 1999, Plaintiff filed two documents s tyled “Supplement to

Appellant’s Brief” and “Additional and Final Supple ment to Appellant’s Brief.” Plaintiff filed no motion for additional briefing. We liberally construe Plaintiff’s additional submission’s as motions for additional b riefing and grant those Plaintiff Robert Dale Straley filed this 42 U.S.C. § 1983 claim alleging twenty-one instances where prison officials violate d his constitutional rights. The district court referred the case to a magistrate ju dge. The magistrate judge prepared a report and recommendation recommending that the cause be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) because: (1) Plaintiff’s request for a temporary injunction lacked merit; (2) Plaintiff fa iled to exhaust his administrative remedies as to some claims; (3) Plai ntiff voluntarily dismissed several additional claims; and (4) Plaintiff’s rema ining claims failed to state a claim upon which relief may be granted. The distri ct court disagreed that Plaintiff failed to exhaust his administrative reme dies. However, the district court denied those claims on other grounds. As to the rest of the claims, the district court agreed with the magistrate judge and adopted the report and recommendation. Accordingly, the district court di smissed Plaintiff’s lawsuit. On appeal, Plaintiff contends that all twenty-one i ssues raised in the district court amount to constitutional violations. As relief, Pl aintiff asks us to reverse the district court’s judgment and remand for a trial onthe merits. We have carefully reviewed Plaintiff’s brief, Plain tiff’s supplemental briefs and attachments 1 , the district court’s order, the magistrate judge’ s report and1 (...continued)

motions. recommendation and the entire record before us. We affirm substantially for the reasons contained in the district court’s order andthe magistrate’s report and recommendation. Plaintiff’s motion to proceed in f orma pauperis is granted. This decision shall count as a prior occasion under28 U.S.C. § 1915(g). Plaintiff is reminded that he now has two “prior occasions” u nder § 1915(g). Should he file another lawsuit which is dismissed pursuant to § 1915 as malicious, frivolous, or for failing to state a claim upon which relief m ay be granted, § 1915's filing restrictions will prevent him from filing further l awsuits unless he is in imminent danger of serious physical injury.
AFFIRMED. Entered for the Court

Bobby R. Baldock United States Circuit Judge