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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.(**)
Wayne Thomas Johnson, a state inmate appearing pro se, seeks to appeal
from the dismissal of his civil rights complaint, 42 U.S.C. § 1983, which sought
to hold Defendants Smirnoff Distillery and the Bureau of Alcohol, Tobacco and
Firearms liable for Mr. Johnson's various alcohol related problems based upon a
failure to warn theory (in the guise of constitutional claims). Performing its
screening function pursuant to 28 U.S.C. § 1915A(b), the district court, upon
recommendation of the magistrate judge, dismissed the action for failure to state
a claim, 28 U.S.C. § 1915(e)(2)(B)(ii), and concluded that the dismissal should
count as a "strike" pursuant to 28 U.S.C. § 1915(g). For substantially the reasons
given by the magistrate judge, we affirm as Mr. Johnson has not addressed any of
the defects identified below. Thus, the district court's dismissal counts as a
strike, as will this dismissal. Jennings v. Natrona County Det. Ctr. Med. Facility,
175 F.3d 775, 780 (10th Cir. 1999).
AFFIRMED. Mr. Johnson's motion to proceed IFP is DENIED, and he is
responsible for immediate payment of any unpaid filing fee.
Entered for the Court
Paul J. Kelly, Jr.
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 This order and judgment is not binding
precedent, except under the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. This 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.
**. After examining the briefs and the
appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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