Slaughter v. United States

36 F. App'x 391

Opinion

ORDER AND JUDGMENT

Footnotes

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TACHA, Chief Circuit Judge.

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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

On August 31, 2000, while incarcerated in a federal penitentiary, Mr. Slaughter pro se and in forma pauperis commenced this action against the United States. Mr. Slaughter brings suit under the Federal Tort Claims Act, 28 U.S.C. § 2674, in the amount of $34.20, alleging that prison officials negligently lost six pairs of his socks and six pairs of his underwear. A magistrate judge recommended dismissing the claim as frivolous. The district court agreed. Mr. Slaughter now brings this appeal.

We apply a deferential abuse of discretion standard when reviewing a district court’s decision to dismiss an in forma pauperis complaint under § 1915(d). Denton v. Hernandez, 504 U.S. 25, 33, 112 , 118 L.Ed.2d 340 (1992). We construe the filings here liberally, under the standards of Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The language of 28 U.S.C. § 1915 states that the court shall “dismiss a case filed in forma pauperis if, at any time, the Court determines that the case is frivolous or malicious, or fails to state a claim on which relief can be granted.” For substantially the reasons laid out by the magistrate judge and the district court, we agree that Mr. Slaughter’s case is frivolous. Because, however, we have not reached the actual merits of Slaughter’s claim, he will not be prejudiced by this dismissal. Accordingly, the motion to appear in forma pauperis is GRANTED, and we DISMISS the case WITHOUT PREJUDICE.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.