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Plaintiff - Appellant,
No. 99-2275
(D.C. No. CIV-99-778-JP)
ROBERT PERRY, Secretary of Corrections, New Mexico Department of Corrections; JOHN SHANKS, Director of Adult Prisons, New Mexico Department of Corrections; JEFF SERNA, Interstate Compact Administrator, New Mexico Department of Corrections; and TIM LEMASTER, Warden, New Mexico State Penitentiary,
(D. New Mex.)
Defendants - Appellees.


Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining Appellant's brief and the 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This is a pro se civil rights appeal. Plaintiff was transferred from a New Mexico prison facility to one in Rhode Island. His complaint alleged a variety of abuses committed or encouraged by Rhode Island prison officials. These claims all relate to prison conditions in Rhode Island. He seeks damages and injunctive relief from the defendants in this action, all of whom are New Mexico prison officials. His theory is that they are liable because they transferred him to Rhode Island and refused to return him to New Mexico or remediate his problems after being notified of their existence.

The trial court dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim against the New Mexico defendants. We have reviewed the complaint, its attachments, the trial court's sua sponte order of dismissal, and the brief on appeal. We conclude that the trial court's order correctly characterized the plaintiff's allegations and correctly dismissed plaintiff's complaint. We therefore affirm for the reasons given by the trial court and dismiss plaintiff's appeal as frivolous.(1)


Entered for the Court

Monroe G. McKay

United States Circuit Judge

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

1.We are dismissing as frivolous the appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B). For purposes of § 1915(g), both dismissals count as strikes against plaintiff. See Jennings v. Natrona County Detention Ctr., 175 F.3d 775, 780 (10th Cir. 1999).

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