* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 19 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PATRICK C. LYNN,

Plaintiff-Appellant,

v.

RUTH DUBOWSKI; PAUL

MORRISON; WILLIAM CLEAVER;

EDWARD BYRNE; JOHNSON

COUNTY, KANSAS, Municipality

of Johnson County; (NFN)

JOHNSTON; (NFN) LAWHEAD;

(NFN) PUNCH, in their individual

and official capacities,

Defendants-Appellees.

No. 97-3368

(D.C. No. 97-3213-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.
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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 Patrick C. Lynn was convicted in a Kansas state court in

November 1996 of a variety of charges, including aggravated kidnaping and rape,

and is currently incarcerated in a Kansas state prison. He brought this action

seeking damages and injunctive relief under 42 U.S.C. § 1983 and various state

tort theories. The district court summarily dismissed the complaint as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We review the district court’s decision

to dismiss the complaint as frivolous for an abuse of discretion, see Schlicher v.

Thomas , 111 F.3d 777, 779 (10th Cir. 1997), and affirm.

Plaintiff’s complaint named as defendants the wife of a juror, the

prosecuting attorney, the trial judge, and his defense counsel, all from the state

court criminal trial; Johnson County, Kansas, where he was incarcerated

following his convictions; and three officers at the Johnson County jail. He

alleged that his constitutional rights were violated by a conspiracy involving the

juror’s wife, prosecuting attorney, defense counsel and trial judge. He also

alleged that he was denied meaningful access to the courts during his stay at the

Johnson County jail. 
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The district court concluded that plaintiff’s allegation of a conspiracy were

malicious and unsupported and should be rejected sua sponte, see Neitzke v.

Williams , 490 U.S. 319, 324-25 (1989), stating in part that

Plaintiff’s allegations that the District Attorney was allowed to “run

amok”, that defendant Dubowski [the juror’s wife] intentionally

allowed herself to be “used as a pawn” by the District Attorney, and

that the trial judge adopted the statements of the District Attorney

knowing they were made falsely and maliciously are completely

without support. The court likewise finds no legal authority for the

plaintiff’s assertion that he was entitled to a hearing after jurors

reported his telephone contacts with them to the trial court. It is

evident that the trial court acted swiftly to curtail plaintiff’s improper

and unauthorized contacts with jurors and that the court’s order was

tailored to do no more than prevent plaintiff from intimidating jurors.

R. Doc. 4, District court’s November 18, 1997 order at 6. The court found that

because plaintiff was represented by counsel while in the Johnson County jail and

that he had telephone access to counsel, any restrictions on the amount of postage

he could purchase while in the jail did not deny him access to the courts. It also

held that his claims for injunctive relief concerning his conditions of confinement

at the jail were moot because he had been transferred to another facility.

On appeal, plaintiff contends that his complaint stated a colorable claim for

conspiracy and that his claim regarding the conditions of confinement at the

Johnson County jail is not moot because he might be incarcerated there again at

some point. We have considered plaintiff’s arguments and reviewed the record
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and affirm the district court’s dismissal of the complaint for substantially the

same reasons as stated in the district court’s November 18, 1997 order.

The judgment of the district court dismissing plaintiff’s complaint as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) is AFFIRMED. We conclude

that this appeal is frivolous and counts as a prior occasion for purposes of

§ 1915(g). The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry

Circuit Judge