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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT



FRANCISCO SOSA,

Plaintiff-Appellant,

v.

CARLA STOVALL, Attorney General of Kansas; KANSAS BUREAU OF INVESTIGATION,

Defendants-Appellees.

No. 01-3122

(District of Kansas)

(D.C. No. 01-CV-3040-GTV)

ORDER AND JUDGMENT(*)

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

After examining appellant's brief and the appellate record, this court 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.

Appellant, Francisco Sosa, appeals the district court's dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. In his complaint, Sosa alleged that defendants violated his Fourth and Fourteenth Amendment rights by requiring him to provide blood and saliva samples after his conviction. See Kan. Stat. Ann. § 21-2511. The district court concluded that Sosa's claim was foreclosed by Tenth Circuit precedent, see Schlicher v. (NFN) Peters, I & I, 103 F.3d 940, 943 (10th Cir. 1996), and dismissed the complaint for failure to state a claim for which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

Sosa attempts to amend his complaint to add additional claims. Any proposed amendment of the complaint would not cure its substantive deficiencies and would be futile. The district court, therefore, properly dismissed Sosa's complaint. See McKinney v. Okla. Dep't of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991).

Upon review of Sosa's complaint and appellate brief, and de novo review of the district court's order and the entire record on appeal, this court affirms the district court's dismissal of Sosa's complaint for substantially those reasons set forth in the district court's order dated April 9, 2001.(1) Sosa is reminded that he remains obligated to continue making partial payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b). Sosa's Motion to Appear in Propria Persona is construed as a request for oral argument and is denied.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

FOOTNOTES
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*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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.This court notes that the district court's dismissal of Sosa's complaint on the ground that it failed to state a claim constitutes a strike for purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (1999).

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