UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN DALE DUBUC,

Plaintiff - Appellant,

v.

STATE OF OKLAHOMA; OKLAHOMA DEPARTMENT OF CORRECTIONS, Medical Services; CORRECTIONS CORPORATION OF AMERICA; JOHN DOE, insuring agent of Corrections Corporation of America; EZELL, individually and in his official capacity as Deputy Warden; DENNIS JOHNSON, individually and in his official capacity as Chief of Security of Davis Correctional Facility; KATHY MILLER, individually and in her official capacity as Medical Administrator of Davis Correctional Facility; HEATH, individually and in his official capacity as Doctor/Physicians Assistant of Corrections Corporation of America; JOE CROW, individually and in his official capacity as Canteen Owner/Operator; VIVIAN DAVIS, individually and in her official capacity as Nurse; MARK SPARGO, individually and in his official capacity as Correctional

No. 02-6082

(Western District of Oklahoma)

(D.C. No. CIV-01-1735-F)

Officer; OFFICER STORY, OFFICER WARNELL, SENIOR DAVIS and SENIOR YANDELL, in their individual and official capacity; SHANE T. FINDLEY, individually and in his official capacity as Senior Officer; RONDA SMITH ROBINSON, individually and in her official capacity as Acting Designee Grievance Officer,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before KELLY, McKAY, 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 Brian Dale Dubuc, an Oklahoma state prisoner, appeals the district court's dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. §§ 1983 and 1985(3). The district court denied Dubuc's motion to proceed in forma pauperis (ifp), concluding that Dubuc was barred from proceeding ifp because he has previously filed three or more civil actions ifp which were dismissed as frivolous, malicious, or for failure to state a valid claim. See 28 U.S.C. § 1915(g). The court addressed and rejected Dubuc's arguments that 28 U.S.C. § 1915(g) is unconstitutional and that he is in "imminent danger of serious physical injury." 28 U.S.C. § 1915(g) (providing an exception to the § 1915(g) bar). The court then dismissed Dubuc's complaint without prejudice for failure to pay the filing fee. Dubuc brought this appeal.

Dubuc has filed a motion to proceed ifp on appeal together with an appellate brief. In his brief, Dubuc does not contest the district court's conclusion that he has three strikes but, instead, renews his argument that 28 U.S.C. § 1915(g) is unconstitutional and also argues that the district court erred when it concluded that he had not demonstrated that he is under imminent danger of serious physical injury. After a review of Dubuc's appellate brief, the appellate record, and the applicable law, we agree with the district court's conclusion that Dubuc's challenge to the constitutionality of 28 U.S.C. § 1915(g) is foreclosed by Tenth Circuit precedent. See White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998); see also Kinnell v. Graves, 265 F.3d 1125, 1127-28 (10th Cir. 2001). We also agree that Dubuc has failed to identify any facts suggesting that he is in "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Accordingly, because Dubuc does not contest the district court's conclusion that he has three prior strikes, Dubuc's motion to proceed ifp on appeal is denied and this appeal is dismissed for failure to pay the appellate filing fee.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge