UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN KENT BLOOM,

Plaintiff-Appellant,

v.

CHARLES E. ANDREWS, JR., in his individual capacity and in his official capacity as Judge of Division IX, Third Judicial District, Shawnee County, KS; JOYCE D. REEVES, in her official capacity as Clerk of the Third Judicial District, Shawnee County, KS; THEODORE D. ENSLEY, in his official capacity as Senior Member of the Shawnee, County Commission; SHAWNEE COUNTY, KANSAS; ALLEN MORGAN, in his individual capacity and in his official capacity as Classification Administrator of the Topeka Correctional Facility, R.D.U., Kansas Department of Corrections; DEBORAH McGEE, in her individual capacity and in her official capacity as Reception and Diagnostic Specialist of the Kansas D.O.C.; CHARLES E. SIMMONS, in his official capacity as Secretary of Corrections of the Kansas D.O.C.; The KANSAS DEPARTMENT OF CORRECTIONS; STATE OF KANSAS,

Defendants-Appellees.

No. 02-3366

(Kansas)

(D.Ct. No. 02-CV-3043)

ORDER AND JUDGMENT*

Before SEYMOUR, 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 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.

Pursuant to the screening provisions of the Prison Litigation Reform Act, 28 U.S.C. §1915A, the district court dismissed sua sponte prisoner Steven K. Bloom's 42 U.S.C. § 1983 complaint filed against various Shawnee County officials, a state judge, and others within the Kansas Department of Corrections, claiming a violation of his constitutional rights. Mr. Bloom, a state prisoner, appeals the dismissal pro se.1 Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

Mr. Bloom's complaint, as well as his brief on appeal, are nearly incomprehensible. The district court charitably construed his complaint as seeking declaratory judgment and damages for alleged violations of his civil rights under the Eighth Amendment and the Due Process Clause. The district court screened Mr. Bloom's allegations in accord with 28 U.S.C. §1915A,2 attempting to identify any cognizable claim for relief. Finding none, the district court dismissed the complaint, articulating its reasons as follows.

First, to the extent Mr. Bloom seeks correction of his sentence, his civil rights complaint is inappropriate; habeas corpus is the correct vehicle. Second, the state court judge named as a Defendant enjoys absolute immunity from judicial actions. Third, no comprehensible claim for relief was stated with regard to Mr. Bloom's contention that an intentional, clerical error was made when his sentence was documented. Fourth, no viable claim emerged from Mr. Bloom's accusations that his records were intentionally falsified, a psychiatrist's recommendation was ignored, and his medical needs were met with deliberate indifference.3 The district court stated, and we agree, "the resulting conditions to which plaintiff claims he was subjected do not suggest that defendants were deliberately indifferent to a serious medical need of plaintiff . . . and are not the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." (Bloom v. Shawnee County, No. 02-3043, District Court Order at 4 (Sept. 5, 2002) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976); Sandin v. Conner, 515 U.S. 472 (1995)). After parsing the complaint for any possible cause of action, and finding none, the district court concluded Mr. Bloom could not state a factual or legal basis for his damage claim against Shawnee County or its officials.

Dismissal pursuant to § 1915A for failure to state a claim upon which relief can be granted is reviewed de novo. McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).4 "'The procedure required by § 1915A is by its terms a screening process, to be applied sua sponte and as early as possible in the litigation.'" Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000) (quoting Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999)). Our review of the record substantiates the district court's disposition of this case as one that presents no cognizable claim upon which relief can be granted. To the extent Mr. Bloom's appellate brief could be interpreted to present new ideas as to how his civil rights were violated, we will not consider a new theory mounted for the first time on appeal. Tele-
Communications, Inc. v. Comm'r Int'l Revenue, 104 F.3d 1229, 1233 (10th Cir. 1997).

Accordingly, we AFFIRM the district court's 28 U.S.C. §1915A dismissal. This appeal is frivolous and is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Dismissal of Mr. Bloom's frivolous appeal counts as a strike pursuant to 28 U.S.C. § 1915(g). Likewise, the district court's dismissal of his complaint for failure to state a claim also counts as a strike. While Mr. Bloom has paid his filing fee, he is reminded that he now has two strikes. If he accrues three strikes, he will be denied in forma pauperis status in any civil action filed in a federal court unless he is in imminent danger of physical injury. 28 U.S.C. § 1915(g).

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge