* This order and judgment is not binding precedent, e xcept under the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

### AUG 11 2003 

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

GEORGE E. RAINEY,

Plaintiff-Appellant,

v. L. E. BRUCE, Warden, Hutchinson Correctional Facility; C. SIMMONS, Secretary of Corrections; W. CUMMINGS, Designated Secretary of Corrections; ROBERT HANNIGAN, Former Warden, Hutchinson Correctional Facility; ROBERT W. GARWOOD, Unit Team, East Unit Hutchinson Correctional Facility; (NFN) O’SHEA, Chaplain, Hutchinson Correctional Facility; C. RUDICOL, Unit Team, Hutchinson Correctional Facility, all sued in civil and state capacities,

Defendants-Appellees. No. 02-3003 (D.C. No. 00-CV-3287-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.-2-

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. George E. Rainey, a Kansas state inmate, filed a 42 U.S.C. § 1983 civil rights complaint against individual prison official s. The district court dismissed his complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) f or failure to state a claim upon which relief may be granted. He appeals that dismi ssal. Since he is pro se, we liberally construe his filings, see Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam); Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998). Our jurisdiction arises under 28 U.S.C. § 1291. This appeal is frivolous and we dismiss it. 28 U.S.C. § 1915(e)(2)(B)(i). The district court permitted Mr. Rainey to proceed in forma pauperis (IFP). 28 U.S.C. § 1915(a)(1). The court is required, as it did, to dismiss an IFP case if it determines the action fails to state a claim upo n which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). We review de novo. See Perkins v. Kan. Dep’t of
Corr. , 165 F.3d 803, 806 (10th Cir. 1999). In short, bu t comprehensive orders, with which we agree but do not repeat, the districtcourt systematically and correctly evaluated Mr. Rainey’s claims.-3-

In his district court filings, Mr. Rainey argued th at he missed a single towel exchange because he was using his wood-working mate rials; he was not provided toilet tissue on one occasion; his wood-working mat erials were seized pursuant to an investigation of the arts and crafts items he ha d made; he was terminated from a work assignment and subjected to false charges mo re than two years before he filed his complaint; and he was subjected to verbal abuse on one occasion. Finally, he argued he was denied his religious diet(1) in 1998, but it was reinstated after he completed a religious accommodation form; (2) on February 9, 1999, for one meal, when a corrections officer brie fly retained his identification card which was marked to show his dietary requireme nts; and (3) on May 23, 1999, for which he failed to show exhaustion of adm inistrative remedies. The district court decided the religious diet claim, wh ich showed at most a de minimis intrusion, failed to state a claim for relief; the verbal abuse claim also failed to state a claim for relief; the towel exchange and to ilet tissue claims were frivolous; the seizure of wood-working materials claim should be dismissed without prejudice for failure to exhaust administrative rem edies; and the work termination and false disciplinary charges claim was time-barre d. Mr. Rainey suggested throughout his district court pleadings that he suffered from discrimination, harassment and retali ation, a conspiracy and on-going violations of his constitutional rights. To the extent Mr. Rainey made1 The district court’s dismissal for failure to state a claim and our dismissal

of this frivolous appeal both count as strikes unde r 28 U.S.C. § 1915(g). Thus, Mr. Rainey has accumulated two strikes in this matter. See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999). -4- these arguments, he did so in a vague, conclusory a nd unsupported fashion, which was insufficient to state a claim for relief. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (“conclusory allegations with out supporting factual averments are insufficient to state a claim upon wh ich relief can be based”). Contrary to Mr. Rainey’s argument, the district cou rt did rule on the motions he filed in that court. See R., doc. 18 at 2-4; id. doc. 35 at 4. The district court issued cogent, well-reasoned ord ers addressing and deciding Mr. Rainey's claims and explaining why. I nstead of detailing, in a reasoned way, supported by authority, how the dis trict court erred, Mr. Rainey simply repeats his district court arguments and all egations and employs the same strategy - a jumble of rambling, incoherent rants p resented in an undifferentiated and conclusory fashion. We conclude his appeal is frivolous and, accordingly, it is DISMISSED. 28 U.S.C. § 1915(e)(2)(B)(i). 1 Mr. Rainey’s motion for temporary restraining order s and a preliminary injunction, motion for partial summary judgment, mo tion for modification of judgment, emergency motion for injunctive relief an d further relief/modification-5-

of judgments, motion to compel discovery, and any o ther outstanding motions
are DENIED as moot. After its decision the district court did not alterMr. Rainey's IFP status. Thus, he was permitted to make his payments in inst allments. He remains obligated to continue making payments until the ent ire filing fee is paid.
See Fed. R. App. P. 24(a)(3); 28 U.S.C. § 1915(b)(2). The mandate shall issue forthwith. Entered for the Court

Terrence L. O’Brien Circuit Judge