04-3264 -- Smith v. Simmons -- 02/10/2005

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE H. SMITH, JR.,

Plaintiff-Appellant,

CHARLES E. SIMMONS;

WILLIAM L. CUMMINGS; ROBERT SAPIEN; MARGARET ADAMSON; RONALD DOW,

Defendants,

and

(FNU) HARE, also known as (FNU) Bitler; DEBRA WHEAT; JOY FOGLE,

Defendants-Appellees.

No. 04-3264

(District of Kansas)

(D.C. No. 03-CV-3203-GTV)

ORDER AND JUDGMENT^(*)

Before EBEL, MURPHY, and McCONNELL, Circuit Judges.

After examining the briefs and 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.

George Smith appeals the district court's sua sponte dismissal, upon initial review pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), of his 42 U.S.C. § 1983 civil rights complaint. This court reviews de novo the district court's sua sponte dismissal of a complaint pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999). Upon consideration of the parties' briefs and contentions, the entire record on appeal, and de novo review of the district court's order, this court concludes that the district court did not err in dismissing Smith's complaint.

The district court is AFFIRMED for substantially those reasons set out in the district court's order dated August 27, 2003. Smith's Motion for Physical and Mental Examination 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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.

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