* This order and judgment is not binding precedent, e xcept under the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

## 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.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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 Patrick C. Lynn was convicted in a Kansas state court in November 1996 of a variety of charges, including ag gravated kidnaping and rape, and is currently incarcerated in a Kansas state pri son. He brought this action seeking damages and injunctive relief under 42 U.S. C. § 1983 and various state tort theories. The district court summarily dismis sed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We revie w 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 defe nse counsel, all from the state court criminal trial; Johnson County, Kansas, where he was incarcerated following his convictions; and three officers at th e Johnson County jail. He alleged that his constitutional rights were violate d 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.-3-

The district court concluded that plaintiff’s alleg ation 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] i ntentionally allowed herself to be “used as a pawn” by the Distr ict 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 tr ial court. It is evident that the trial court acted swiftly to curta il 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 orderat 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 restri ctions on the amount of postage he could purchase while in the jail did not deny hi m access to the courts. It also held that his claims for injunctive relief concerni ng his conditions of confinement at the jail were moot because he had been transferr ed to another facility. On appeal, plaintiff contends that his complaint st ated a colorable claim for conspiracy and that his claim regarding the conditi ons 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-4-

and affirm the district court’s dismissal of the co mplaint for substantially the same reasons as stated in the district court’s Nove mber 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 prioroccasion for purposes of § 1915(g). The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry Circuit Judge