Friedman v. Kennard

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 25, 2007
• Docket: 07-4116
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 25, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

C HA RLES D . FR IED M A N ,

Plaintiff - Appellant, v.

AARON D. KENNARD, Sheriff, Salt Lake County, individually and in No. 07-4116 his official capacity; R OLLIN COOK, (D.C. No. 2:06-CV-538 TC) Chief Deputy, individually and in his (D. Utah) official capacity; PA M LO FG REEN, Lieutenant, individually and in her official capacity; R . EPPA RD , Sergeant, individually and in his official capacity,

Defendants - Appellees.

OR DER AND JUDGM ENT *

Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

Charles Friedman, proceeding pro se, brought suit against various Salt Lake

County Sheriff’s Office officials, alleging that they unconstitutionally deprived

* 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 ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. him of access to the courts during his pretrial detention, in violation of 42 U.S.C.

§ 1983. The district court dismissed this matter pursuant to 28 U.S.C.

§ 1915(e)(2)(B). W e affirm.

* * *

M r. Friedman, who was detained first at Cache County Jail and then

transferred to the Salt Lake County Jail, makes essentially five separate claims.

Count 1. M r. Friedman alleges that Cache County Jail officials denied him

kosher meals and the opportunity to observe the Sabbath. For this, he wished to

pursue a “Bivens action” in federal court and, while at the Salt Lake County Jail,

sought assistance from the defendants on M arch 30, 2006. Compl. ¶¶ 1-9.

According to M r. Friedman, the defendants freely agreed to provide him a legal

packet for civil rights actions from the federal court clerk’s office. Id. ¶ 9. But,

M r. Friedman complains, in the following weeks, he did not receive any form

discussing Bivens and thus filed this suit on June 2, 2006. At the same time,

however, M r. Friedman concedes that he did receive a legal packet during this

period describing how to file federal civil rights complaints. Id. ¶25.

Count 2. M r. Friedman alleges that, in addition to seeking relief in federal

court, he wished to pursue his complaints about the lack of a kosher diet in state

court, and on April 28, 2006 requested a legal packet for tort actions in Utah state

courts. Id. ¶ 24. M r. Friedman acknowledges that jail officials responded on

M ay 10, 2006 by stating that they had requested the appropriate state court forms

-2- for him and would deliver the materials as soon as they arrived. Id. ¶ 27. He

acknowledges as well that he was able to correspond directly with officials in the

Utah state court system and request a legal packet for himself, id. ¶ 28, though he

contends that he was told that forms were available only online. M r. Friedman

surmises from this response that the promise by jail officials to provide him with

paper forms was an intentional lie in an effort to deny him access to state courts.

Count 3. M r. Friedman alleges that he was charged $10 for certain medical

testing that should have been provided without charge, and that he sought to

pursue this matter in state court. Id. ¶¶ 35-37. In aid of this effort, M r. Friedman

alleges that he again, on M ay 12, 2006, sought a legal packet for a state court tort

action but did not receive one before filing this suit. Id. ¶¶ 38-39.

Count 4. M r. Friedman contends that his access to the courts was

unconstitutionally impaired because he was afforded only “golf pencils” to

prepare his complaints.

Count 5. M r. Friedman submits that, in response to his admittedly frequent

use of the internal grievance system and his follow-on law suits, jail officials

unconstitutionally retaliated by sending him to a higher security housing unit.

The district court concluded that all five counts of M r. Friedman’s

complaint failed to state a claim for relief under 42 U.S.C. § 1983 and that it

would be futile to allow him to amend his pleadings. Accordingly, on April 13,

-3- 2007, the district court dismissed the case pursuant to 28 U.S.C. § 1915(e)(2)(B)

for failure to state a claim upon which relief can be granted.

W e review de novo the district court’s dismissal of a case under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted.

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). “Dismissal of

a pro se complaint for failure to state a claim is proper only where it is obvious

that the plaintiff cannot prevail on the facts he has alleged and it would be futile

to give him an opportunity to amend.” Id. In determining whether dismissal is

proper, we accept the allegations of the complaint as true and construe them in

the light most favorable to the plaintiff. Id. at 806. Conclusory allegations

without supporting factual averments, however, are insufficient to state a claim,

and the court accepts as true only the plaintiff’s “well-pleaded factual

contentions, not his conclusory allegations.” Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991). W hen viewed against these standards, we believe

dismissal of M r. Friedman’s claims was appropriate.

Count 1. Pretrial detainees have a constitutional right to adequate,

effective, and meaningful access to the courts. Love v. Summit County, 776 F.2d

908, 912 (10th Cir. 1985). To assert a constitutional claim for violation of this

right, a confined plaintiff must allege facts indicating (1) a denial of legal

resources, and (2) that the denial of such resources hindered his or her efforts to

-4- pursue a nonfrivolous claim. Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.

1996) (citing Lewis v. Casey, 518 U.S. 343, 350 (1996)). To be clear, however,

the right of access to the courts does not entail a constitutional right to a law

library or professional legal assistance. Lewis, 518 U.S. at 350. Instead,

“meaningful access to the courts is the touchstone,” Bounds v. Smith, 430 U.S.

817, 823 (1977), and the Supreme Court has encouraged local experimentation in

various methods of assuring access to the courts, Lewis, 518 U.S. at 352. In fact,

the Court has specifically condoned programs that “replace libraries with some

minimal access to legal advice and a system of court-provided forms.” Id.

W e agree with the district court that the complaint, even liberally

construed, does not allege a constitutionally cognizable denial of legal resources

in Count 1. Although M r. Friedman contends that he requested a packet that

would help him pursue a Bivens action, he also concedes that jail officials

provided him, in response to his request, with a “federal civil rights ‘packet.’”

Compl. ¶ 25. He pleads no facts to suggest that his federal civil rights packet

differed from that commonly provided by the Utah federal district court, which

the district court took notice contains sufficient information to allow M r.

Friedman to file his suit. D. Ct. op. at 7-8. Thus, M r. Friedman’s own pleading

tends to defeat his claim. See Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.

1992) (disregarding internally contradictory allegations).

-5- Even if M r. Friedman had pled a cognizable denial of legal resources,

however, we would still hold that his complaint fails as a matter of law for the

independent reason that it contains no facts from which one might discern that he

was substantially hindered from pursuing a federal civil rights claim. Indeed, the

complaint itself suggests otherwise. M r. Friedman filed this federal civil rights

complaint from jail on June 2, 2006, within just weeks of his initial request for

legal assistance on M arch 30, 2006. It is 44 pages long and supported by

numerous exhibits. For these reasons, we agree with the district court that

“[p]laintiff clearly had no difficulty in filing this [federal civil rights] lawsuit, and

it appears he could have just as easily pursued his underlying [federal civil rights

lawsuit].” D . Ct. op. at 11. Indeed, as the district court further observed, M r.

Friedman has an extensive history of pro se litigation – including no fewer than

11 cases in the district court and 4 more in our own court in the last 8 years; the

district court noted that he filed at least one of these actions during the very time

period covered by this lawsuit.

Counts 2-3. These claims concern state tort actions rather than federal civil

rights claims but fail for many of the same reasons as Count 1. Far from denying

him the appropriate forms, M r. Friedman’s pleading reveals that jail officials

expressly agreed to provide him with a legal packet for pursuing state tort actions.

Compl. ¶ 27. To be sure, M r. Friedman questions the sincerity of this pledge on

the ground that he failed to obtain the forms himself, id. ¶ 28, but he offers no

-6- factual basis from which a rational fact finder might suppose that jail officials

could not have anticipated more success in obtaining court forms than M r.

Friedman experienced. Indeed, far from being completely rebuffed by state court

officials, M r. Friedman alleges that he was directed to the courts’ w ebsite, id.,

and it is entirely possible that jail officials, if they received the same response,

could have (for example) downloaded and printed appropriate materials from the

website for M r. Friedman’s use. Any possible inference of insincerity is further

diminished by the fact that M r. Friedman afforded jail officials little time to

fulfill their promise – just three weeks – before filing his instant complaint.

Finally, even if M r. Friedman could state a basis for inferring the denial of

constitutionally sufficient legal assistance, for reasons we have already explored

with respect to Count 1 and think equally applicable here, we would nonetheless

hold his claims barred for failure to plead facts from which we could infer that he

was meaningfully hindered in his efforts to access the courts.

Count 4. M r. Friedman complains that he is forced to employ “golf

pencils” in the drafting of his pleadings, may purchase only six such pencils per

week at the jail commissary, and has access to a pencil sharpener “every other

day.” Compl. ¶¶ 44-45. Even without discussing the penological interests that

may be at play in the jail’s decision to deny access to writing instruments that

may be more easily employed as weapons, or the question whether the use of

“golf pencils” constitutes a denial of constitutionally meaningful legal resources,

-7- M r. Friedman again fails to supply any facts from which we might infer that he

has been hindered in his efforts to pursue his legal relief. Indeed, the pencils

provided him were obviously sufficient to prepare this 44 page pleading, not to

mention apparently many others besides it in recent weeks and months.

Count 5. Prison officials may not retaliate against an inmate because of the

inmate’s exercise of his or her right of access to the courts. Smith v. M aschner,

899 F.2d 940, 947 (10th Cir. 1990). To withstand dismissal, however, a plaintiff

must plead specific facts showing retaliatory motive. Peterson v. Shanks, 149

F.3d 1140, 1144 (10th Cir. 1998). Standing alone and without supporting factual

allegations, temporal proximity between an alleged exercise of one’s right of

access to the courts and some form of jailhouse discipline does not constitute

sufficient circumstantial proof of retaliatory motive to state a claim. See, e.g.,

Weatherall v. Scherbarth, 208 F.3d 228, 2000 W L 223576, at *2 (10th Cir. Feb.

28, 2000); Wright v. M cCotter, 172 F.3d 880, 1999 W L 76904, at *1 (10th Cir.

Feb. 18, 1999).

In support of his retaliation claim, M r. Friedman alleges only that shortly

after his transfer to a higher security housing unit he received a letter from jail

officials restricting his access to the jail grievance system because of recent

abuse. He does not allege that his transfer w as disciplinary as opposed to

administrative in nature, or any other basis for inferring a linkage between his use

of grievances and his transfer. Compl. ¶ 70. Because M r. Friedman alleges no

-8- more than temporal proximity between his alleged exercise of rights and his

transfer, we must agree with the district court that he has failed to state a

cognizable claim for retaliation. Com pare Smith, 899 F.2d at 949 (stating a claim

by alleging various other “suspicious circumstances” in addition to the timing of a

transfer).

For the foregoing reasons, the district court’s dismissal of the complaint is

affirmed. W ith respect to M r. Friedman’s application to proceed in forma

pauperis on appeal, the district court granted the request but did not address the

various requirements for assessing partial payments under 28 U.S.C. § 1915.

Accordingly, we required M r. Friedman to submit an application for in forma

pauperis status that included his prison trust account statement. M r. Friedman

did so on August 23, 2007, and we entered an order assessing partial payments

the same day. Today, we reiterate that M r. Friedman is given leave to proceed in

form a pauperis in this court but remind him to continue making partial payments

pursuant to our A ugust 23, 2007 order until the filing fee is paid.

ENTERED FOR THE COURT

Neil M . Gorsuch Circuit Judge

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