F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         APR 20 2005
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                   PATRICK FISHER
                                                                             Clerk


 WAYNE THOMAS JOHNSON,

          Plaintiff - Appellant,
                                                        No. 04-6263
 v.                                               (D.C. No. 04-CV-647-C)
                                                        (W.D. Okla.)
 SMIRNOFF DISTILLERY; ATF,

          Defendants - Appellees.


                             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


      *
        This order and judgment is not binding precedent, except under the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.
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,

, 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




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