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* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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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, this 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 case 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 court dismissed the complaint
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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 contraband in a prison

disciplinary proceeding. The disciplinary committee held a hearing and found

plaintiff guilty of the offense. Plaintiff appealed, 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 proceeding 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 substantially the 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 forthwith.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge