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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
DAVID ANDREW WOODRUFF,
Plaintiff - Appellant, v.
(NFN) PAULSON,
in his/her official capacity as
Corrections Officer,
Wyoming Department of Corrections State, et al.,
Defendants - Appellees.
No. 02-8027
51 Fed. Appx. 822
October 18, 2002, Filed
NOTICE: RULES OF THE TENTH
CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE
REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Before SEYMOUR , HENRY, and
BRISCOE, Circuit Judges.
Mr. David
Woodruff, a prisoner at the Wyoming State Penitentiary, brought various
complaints, based on both state and federal law, against the Wyoming Department
of Corrections and various officers at the penitentiary. He asserted violations
of his constitutional rights including access to the courts, due process, and
equal protection, based on his allegation that he has been provided with
insufficient paper for legal work and the pens provided are too difficult to
use. He further alleged he is subjected to cruel and unusual punishment in
violation of the 8th Amendment, both because the guards wake him during the
night, causing pain, ringing in his ears, stress, insomnia, and angry
outbursts, and because the lights in his cell are too bright, causing his eyes
to become red and irritated, making it difficult for him to watch television
while lying on his bed, and rendering him unable to conduct his legal work. The
district court dismissed the complaint in its entirety for failure to state a
claim and for being frivolous.
When the
district court dismisses a claim as frivolous under the Prison Litigation Reform
Act ("PLRA") § 1915(e)(2)(B)(i),
we review for abuse of discretion. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). When
the [*824] district court dismisses under the PLRA § 1915(e)(2)(B)(ii) for
failure to state a claim, we review the decision de novo. See Perkins v. Kansas Dep't of Corrections,
165 F.3d 803, 806 (10th Cir. 1999). The district court did not delineate
precisely which claims it dismissed under which sections, and as the outcome on
all of the claims would be the same under either standard of review, we will
review all of Mr. Woodruff's claims de novo.
A claim is
legally frivolous if the plaintiff asserts the violation of a legal interest
that does not exist, or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324-25,
104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). Because Mr. Woodruff is proceeding
pro se, we construe his complaint liberally. Haines v. Kerner, 404 U.S. 519,
520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (1991). However, even construing the complaint liberally, we agree with
the district court that Mr. Woodruff has failed to provide any facts on the
basis of which we might find a constitutional violation.
On his claim of denial of
access to the courts, Mr. Woodruff has not demonstrated that failure of prison
staff to provide him with his requested thirty sheets per day of paper has
hindered him in pursuing any non-frivolous legal claims or caused him any other
prejudice. See Lewis v. Casey, 518
U.S. 343, 350- 53, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996). On his claim for
equal protection violations, he has failed to allege that he has been treated
differently from others. See Village
of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66,
50 L. Ed. 2d 450, 97 S. Ct. 555 (1997) (requiring allegation of disparate
treatment in equal protection cases).
Mr.
Woodruff has also failed to allege facts sufficient to support his claim of
cruel and unusual punishment. Cruel and unusual punishment is defined as
punishment that "although not physically barbarous, involves the
unnecessary and wanton infliction of pain." Clemmons v. Bohannon,
956 F.2d 1523, 1525 (10th Cir. 1992) (quoting Rhodes v. Chapman, 452 U.S. 337,
347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981)). A prisoner claiming that he has
suffered such punishment must show officials' deliberate indifference to the
sufficiently egregious conditions of confinement. Mitchell v. Maynard, 80 F.3d 1433,
1441-42 (10th Cir. 1996) (citing Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d
271, 111 S. Ct. 2321 (1991)). Thus, a court considering a conditions of
confinement claim must ask both whether the officials acted with a sufficiently
culpable state of mind, and whether the alleged wrongdoing was objectively
harmful enough to rise to the level of a constitutional violation. Mitchell, 80
F.3d at 1442 (citing Hudson v. McMillian, 503 U.S. 1, 8, 117 L. Ed. 2d 156, 112
S. Ct. 995 (1992)). Here
we agree with the district court that Mr. Woodruff has failed to allege facts
showing either that the officers' conduct towards him was objectively harmful
enough to constitute a violation of the 8th Amendment or that prison officials
acted with deliberate indifference towards him.
We deny Mr. Woodruff's motion to proceed without prepayment of
fees, remind him he owes the unpaid balance of the filing fee, and DISMISS the
appeal. n1 When a civil action is dismissed as frivolous, it is counted as a
"strike" pursuant to 28 U.S.C. § 1915(g). Mr. Woodruff is
reminded [*825] [*826]
that he will be prohibited from bringing civil actions or filing appeals
if on three or more prior occasions he has brought an action or an appeal that
was dismissed as frivolous or for failure to state a claim. Id. Based on the
present action filed in the district court and this appeal, Mr. Woodruff now
has two strikes against him.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
* After
examining appellant's brief and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata,
or 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.
n1 We deny the motions Mr. Woodruff filed
while this appeal was pending. He has not met the standards for mandamus. And
with respect to his multiple motions for a temporary restraining order and
preliminary injunction, we do not consider motions based on new facts or new
events asserted on appeal that were not before the district court.