We liberally construe pro se pleadings and appellate briefs. Ledbetter v. 1

City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

F I LED

United States Court of Appeals

Tenth Circuit

July 27, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARRY WATSON,

Plaintiff - Appellant,

No. 06-6350

v. W.D. Okla.

HAROLD MAURICE JAMES; KEVIN

MCCRAY; RAY C. ELLIOTT;

NATHAN DILLS; ROBERT BYBEE;

MIKE SPEEGLE; JERAL SCOTT

DUPY; ALLEN J. WELCH; JEFFREY

BYERS; JENNIFER RICHARD;

CAROLYN L. MERRITT,

Defendants - Appellees.

(D.C. No. 06-CV-462-R)

ORDER DISMISSING APPLICATION AS FRIVOLOUS

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Barry Watson, pro se, appeals from the district court’s dismissal of his 1
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42 U.S.C. § 1983 complaint on statute of limitations grounds. We dismiss his

frivolous appeal. 

Background

In his complaint, Watson related this series of events. Watson was arrested

on April 16, 1998. On November 6, 2000, he proceeded to trial in state court and

was represented by a state public defender. On November 29, 2000, he was

sentenced after being found guilty of charges arising from the April 1998

incident. Carolyn Merritt, a staff lawyer at the state public defender’s office who

did not serve as trial counsel, represented Watson on direct appeal. She did not

raise assignments of error based on ineffective assistance of trial counsel or trial

counsel’s alleged conflict of interest. On October 18, 2001, the Oklahoma Court

of Criminal Appeals affirmed Watson’s conviction and sentence.

More than four years later, on April 25, 2006, Watson filed a civil rights

complaint in federal court against his appellate counsel, his trial counsel, the

officers involved in his April 1998 arrest, and his trial judge. He alleged Merritt

conspired with “co-workers, a state official or state officials,” acting under color

of state law, to deny his rights to 1) direct appeal; 2) conflict-free and effective

assistance of counsel; 3) due process; and 4) equal protection. He also claimed he

was denied equal protection of the law during his direct appeal because of his

poverty and race. He sought 1) a jury trial; 2) declaratory and injunctive relief
 When a prisoner is granted leave to proceed ifp in the district court that 2

right continues on appeal unless the district court certifies the appeal is not taken

in good faith. Fed. R. App. P. 24(a)(3). Watson’s continuing ifp status does not

relieve him of his obligation to pay filing fees, it merely permits the fees to be

paid in installments. Accordingly, he must continue to make payments until the

filing fee is paid in full. Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001)

(dismissal of an appeal does not relieve appellant of obligation to pay appellate

filing fee in full).

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against his trial judge; and 3) monetary damages against the remaining defendants.

The magistrate judge concluded Watson’s claims were filed well after the

two-year statute of statute of limitations had run and recommended dismissing

Watson’s complaint. Over Watson’s objections, the district court adopted the

magistrate judge’s report and recommendation and dismissed Watson’s complaint

as untimely. The court left its previous grant of leave to proceed ifp intact but

imposed a strike under 28 U.S.C. § 1915(g). Watson has filed a motion for leave

to file ifp in this Court even though it is unnecessary to do so. See Fed. R. App. 2

P. 24(a)(5).

Under 28 U.S.C. § 1915(e)(2)(B)(i), this Court must dismiss frivolous

appeals. Watson’s brief fails to present any legal theory or refer to specific facts

that could conceivably refute the district court’s thoroughly reasoned disposition. 
 This dismissal counts as a strike under § 1915(g). Thus, Watson has 3

accumulated two strikes, one in the district court and one here. See 28 U.S.C. §

1915(g); Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780

(10th Cir. 1999).

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DISMISSED.

3

ENTERED FOR THE COURT

Terrence L. O’Brien

Circuit Judge