Simmons v. Suthers, (10th Cir. 2000)

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UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

LEO SIMMONS,

Plaintiff - Appellant,

vs.

JOHN SUTHERS,

Defendant - Appellee.

No. 99-1472

(D.C. No. 99-Z-921)

(D. Colo.)

ORDER AND JUDGMENT(*)

Before BRORBY, KELLY, and MURPHY, Circuit Judges.(**)

Leo Simmons, an inmate appearing pro se, appeals from the dismissal ofhis prisoner civil rights action. Mr. Simmons alleged numerous constitutionalviolations and sought relief under 42 U.S.C. § 1983 and the Americans withDisabilities Act (ADA). The magistrate judge determined that the allegations inthe complaint were "vague and conclusory" and ordered Mr. Simmons to file anamended complaint within 30 days. R. doc 17. Mr. Simmon's filed an amendedcomplaint which repeatedly said "See initial claim" in all relevant sections. Thereupon, the district court dismissed the complaint. R. doc. 22. Ourjurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Although the district court did not recite a particular legal basis for itsorder, we treat the dismissal as one under 28 U.S.C. § 1915(e)(2)(B)(ii) (districtcourt can dismiss action which "fails to state a claim on which relief may begranted."). Review is de novo, see Perkins v. Kansas Dept. of Corrections, 165F.3d 803, 806 (10th Cir. 1999), and because Mr. Simmons is appearing pro se, we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

A thorough review of the complaint demonstrates that the district court wascorrect in dismissing the action. Mr. Simmons vaguely asserts that he suffersfrom numerous medical problems for which he has been receiving inadequatetreatment from the Colorado Department of Corrections. He also claims thatfalse reports were filed relating to his failure to work because of his medicalproblems. Although various deficiencies were specifically pointed out in thecourt's August 13, 1999 order directing Mr. Simmons to amend the complaint,Mr. Simmons chose not to amend but directed the court to "see [the] initialclaim." There was no error in dismissing the complaint.

The motion to proceed in forma pauperis is DENIED and the appeal isDISMISSED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. This courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**. After examining the briefs and theappellate record, this three-judgepanel has determined unanimously that oral argument would not be of materialassistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10thCir. R. 34.1 (G). The cause is therefore ordered submitted without oralargument.

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