Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court KENNETH D. LEEK,
Plaintiff - Appellant,
v. No. 21-3165 (D.C. No. 5:21-CV-03100-SAC) KATHRYN A. ANDROSKI; MISTI (D. Kan.) KROEKER; IC SOLUTIONS; DAN SCHNURR; JAMES SKIDMORE; JOHN P. STIFFIN; SHANNON L. MEYER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________
Kenneth Leek, proceeding pro se, 1 appeals the district court’s dismissal of his
access-to-courts claims under 42 U.S.C. § 1983 and his supplemental breach-of-
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 Because Leek proceeds pro se, “we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). “[B]ut we do not act as his advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 2
contract claim under Kansas law. For the reasons explained below, we affirm in part,
reverse in part, and remand.
Background
Because this case comes to us from the dismissal of Leek’s second amended
complaint, we take these facts from that complaint. See Young v. Davis, 554 F.3d
1254, 1256 (10th Cir. 2009) (noting that in appeal from dismissal, we accept
allegations in complaint as true). We also take judicial notice of court filings in
Leek’s separate but related district-court case. See Gee v. Pacheco, 627 F.3d 1178,
1191 (10th Cir. 2010) (explaining that we may take judicial notice of records from
underlying court proceedings). Broadly, Leek alleges that he was prevented from
effectively conducting legal research at two Kansas state prisons—the Hutchinson
Correctional Facility and the Lansing Correctional Facility.
I. Leek’s Time at Hutchinson
At Hutchinson, Leek and another prisoner wanted to conduct legal research
together regarding their respective habeas petitions that raised similar issues. The two
wanted to “find a way to meet the exception criteria and file out[-]of[-]time”
petitions, but the head librarian did not permit them to collaborate. R. 224. Some
months later, in November 2020, Leek and the other prisoner were placed in long-
term administrative segregation and were never able to file their petitions.
Leek describes an arduous process for a prisoner housed in administrative
segregation to obtain materials from the Hutchinson law library. Such a prisoner must
submit a form on which he or she can request up to six cases by noting each case’s
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exact legal citation. Those cases are then delivered to the prisoner’s segregation
cellhouse. But if a prisoner submits a case citation lacking certain identifying
information, the case will not be provided. Once the cases are delivered, a prisoner
has four days to digest them before they must be returned. If borrowed cases are not
returned (or returned but not correctly processed by the facility), the prisoner is
prevented from borrowing new cases. Hutchinson prisoners in segregation can also
order certain books and “legal files,” which are “packets of information made up by
various clerks over the years.” Id. These are frequently out of date and, if relied on,
“could cause [Leek] to lose his [law]suit.” 2 Id.
Here, Leek alleges that before being placed in segregation, he had filed
separate lawsuits in state and federal court. While Leek was housed in segregation,
the defendants in his federal lawsuit—Leek v. Scoggin, No. 20-cv-03051 (D. Kan.
2020)—moved to dismiss his complaint. Leek then submitted a form requesting
research on certain legal topics, but prison staff responded that they are not allowed
to conduct research for prisoners. Unable to conduct research that would permit him
to respond to the defendants’ allegations, Leek moved for the appointment of
counsel. Despite acknowledging Leek’s argument that he was housed in long-term
segregation without proper access to a law library, the district court denied that
2 For instance, one book, the Prisoner’s Self-Help Litigation Manual, is an edition printed before the enactment of the Prison Litigation Reform Act (PLRA) of 1995. 3 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 4
motion. Shortly after, the district court held the Scoggin defendants’ motion to
dismiss in abeyance, explaining that it would first screen Leek’s complaint.
Similarly, with respect to his state-court lawsuit, now pending before the
Kansas Court of Appeals, Leek was required to submit an appellate brief. But at
Hutchinson, Leek contends, he “had no way to research or write” his brief “due to his
lack of access to law[-]library resources.” Id. at 228.
II. Leek’s Time at Lansing
On April 28, 2021, Leek was transferred to Lansing and immediately placed in
the facility’s long-term restrictive-housing unit. Leek told Lindsey Wildermuth, a
Lansing employee, that he had multiple pending lawsuits and asked her to describe
the law-library process for prisoners in restrictive housing. Wildermuth advised Leek
that there was no law library in the unit but that he could submit a form requesting
specific cases by providing their exact citations. She further explained that no law
books would be delivered to the unit.
Leek complied and submitted multiple forms requesting cases. About a week
later, Wildermuth came to Leek’s cell with one of his forms and several cases stapled
to it. John Stiffin, the head librarian at Lansing, wrote on the form: “[O]nly three
cases at a time. Please return in one week.” Id. at 230. Forms Leek had submitted
requesting additional cases were returned to him, unprocessed, with similar
instructions from Stiffin. When Leek again attempted to request more cases, Stiffin
told Leek he would not receive them until he returned the prior cases.
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After arriving at Lansing, Leek and other restrictive-housing unit prisoners
“realized how many constitutional violations” were occurring and determined that “it
was clear” litigation would be “necessary to correct their conditions of confinement.”
Id. at 233. Leek submitted a form requesting that he and another prisoner be given
time to “mutually assist one another” so that they could “seek to change [their]
conditions of confinement.” Id. Wildermuth denied that request.
Around that time, Leek received a notification from the Kansas Court of
Appeals reminding him that his brief was due soon. Leek submitted a prison form
requesting research assistance, but it was never answered. Leek also moved to have
counsel appointed for his state-court appeal. The docket in that case shows his
motion has since been granted.
After Leek’s transfer to Lansing, the federal district court in Scoggin ordered
Leek to show cause why his complaint should not be dismissed for failure to state a
claim. Due to deficiencies in the law library, Leek was forced to draft what he
viewed as a suboptimal response “with only the few cases, notes, and books he had”
as personal property. Id. at 231. The federal district court found Leek’s response to
its show-cause order unpersuasive and dismissed his complaint for failure to state a
claim. It denied as moot the Scoggin defendants’ earlier motion to dismiss, which had
been held in abeyance.
III. The Proceedings Below
On April 13, 2021, just over two weeks before his transfer to Lansing, Leek
initiated this action. The district court screened the complaint under 28 U.S.C.
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§ 1915A and ordered Leek to file an amended complaint, finding Leek had failed to
comply with the procedural joinder requirements of Federal Rules of Civil Procedure
18 and 20. After Leek amended his complaint, he moved to supplement it with
additional allegations. The district court granted that motion and construed the
supplemented pleading as Leek’s second amended complaint.
Leek’s second amended complaint alleged access-to-court claims under § 1983
against several Hutchison and Lansing employees. It also asserted a breach-of-
contract claim under state law against Misti Kroeker, a “contract monitor” at
Hutchinson, as well as IC Solutions, Inc., a company alleged to have contracted with
the Kansas Department of Corrections to provide prisoners with tablets to conduct
free legal research. R. 217.
The district court screened Leek’s second amended complaint under § 1915A.
This time, the district court reached the merits and dismissed it for failing to state a
claim. The district court gave Leek just over a month “to show cause why th[e] case
should not be dismissed or to file another amended complaint” that states a federal
claim; the district court cautioned Leek that failing to do so could result in dismissal
of his case. 3 Id. at 214. Two days after the deadline had passed, Leek had done
3 Leek contends in his appellate brief that, given the constraints under which he was operating, responding to the district court’s order within 30 days “was an impossibility” and that it took him the full 30 days to obtain all the cases cited in the district court’s dismissal order because he is litigating this appeal under the exact- citation system described above. Aplt. Br. 6. 6 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 7
neither, so the district court dismissed the case without prejudice under
§ 1915A(b)(1). 4 Leek appeals.
Analysis
We review de novo the district court’s dismissal for failure to state a claim
under § 1915A(b)(1). Young, 554 F.3d at 1256. “We must accept all the well-pleaded
allegations of the complaint as true” and “construe them in the light most favorable to
the plaintiff.” Id. (quoting Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th
Cir. 2007)). We review the complaint “to determine whether [it] includes enough
facts to state a claim to relief that is plausible on its face.” Id. (quoting KT & G Corp.
v. Att’y Gen. of Okla., 535 F.3d 1114, 1134 (10th Cir. 2008)). In addition to the
complaint itself, we may refer to documents referenced in the complaint if they are
central to the plaintiff’s claims. See Gee, 627 F.3d at 1186; Reed v. Heimgartner, 579
F. App’x 624, 625 (10th Cir. 2014) (unpublished) (stating this principle in context of
§ 1915A dismissal). 5 We may also take judicial notice of court records in underlying
judicial proceedings. Gee, 627 F.3d at 1191.
4 The district court’s initial order did not indicate whether the case was dismissed with or without prejudice. Accordingly, the district court filed an application with this court for leave to correct its order under Federal Rule of Procedure 60(a). We granted the application, abated the appeal, and remanded the case for the district court to correct its order and judgment. After the district court did so, we lifted the abatement. 5 We cite this unpublished case only for its persuasive value. See 10th Cir. R. 32.1(A). 7 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 8
I. Access-to-Courts Claims
Leek argues that he has sufficiently alleged access-to-courts claims. Prisoners
do not have a “freestanding right to a law library or legal assistance.” Lewis v. Casey,
518 U.S. 343, 351 (1996). Thus, to state an access-to-courts claim, the plaintiff must
satisfy a “threshold determination” that he or she has “standing to assert” such a
claim by alleging actual injury. Simkins v. Bruce, 406 F.3d 1239, 1244 n.5 (10th Cir.
2005). To establish actual injury, the plaintiff “must show that any denial or delay of
access to the court prejudiced him [or her] in pursuing litigation.” Trujillo v.
Williams, 465 F.3d 1210, 1226 (10th Cir. 2006) (quoting Treff v. Galetka, 74 F.3d
191, 194 (10th Cir. 1996)). A plaintiff, therefore, “cannot establish relevant actual
injury simply by establishing that his [or her] prison’s law library or legal[-
]assistance program is subpar in some theoretical sense.” Lewis, 518 U.S. at 351.
Rather, the plaintiff “must go one step further and demonstrate that the alleged
shortcomings in the library or legal[-]assistance program hindered his [or her] efforts
to pursue a legal claim.” Id. The plaintiff “need not show,” however, that he or she
would have prevailed on the interfered-with claim, “only that it was not frivolous.”
Simkins, 406 F.3d at 1244. To be nonfrivolous, the plaintiff’s underlying claim must
be “described well enough . . . to show that the ‘arguable’ nature of the underlying
claim is more than hope.” Christopher v. Harbury, 536 U.S. 403, 416 (2002).
In his appellate brief and second amended complaint, Leek identifies four
instances of alleged prejudice:
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1. At Hutchinson, he and another prisoner were prohibited from working together
to file an untimely habeas petition;
2. At Lansing, Leek was not permitted to conduct research with another prisoner
to challenge the conditions of confinement in the restrictive-housing unit;
3. At both facilities, Leek could not draft his appellate brief in compliance with
his deadline in the Kansas Court of Appeals; and
4. At Lansing, Leek could not adequately respond to the district court’s order to
show cause in Scoggin, his now-dismissed federal case alleging
unconstitutional conditions of confinement at Hutchinson.
The district court concluded that all of Leek’s allegations of prejudice were
“merely general assertions that fail to show that he has been unable to present his
cases and claims.” R. 213. For all but the last instance listed above, we agree that
Leek fails to allege a nonfrivolous claim. See Simkins, 406 F.3d at 1244.
First, Leek fails to explain how his potential habeas petition, which he admits
would be filed “out of time,” would not be frivolous. R. 225. Second, regarding his
conditions-of-confinement claim in Lansing’s restrictive-housing unit, Leek’s
complaint says nothing about the nature of the alleged unconstitutional conditions of
confinement, much less describes them “well enough . . . to show that the ‘arguable’
nature of the underlying claim[s] is more than hope.” Christopher, 536 U.S. at 416.
Third, our review of the Kansas state-court appellate docket shows that Leek’s
motion for appointment of counsel has been granted and his opening brief has been
filed. And as we have recognized, “[i]t is well established that providing legal
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counsel is a constitutionally acceptable alternative to a prisoner’s demand to access a
law library.” United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999).
But when it comes to Leek’s allegations about his attempt to litigate Scoggin
while at Lansing, we disagree with the district court. Leek alleged that when he
arrived at Lansing, he was immediately placed in segregation in the restrictive-
housing unit where there is no law library. Leek was informed that to obtain cases, he
had to submit forms “requesting specific cases by cit[ation]” and that “no law books
would be delivered” to the restrictive-housing unit. R. 230. When Leek submitted
forms requesting cases from the library, he received some cases but was informed
that he could only request “three cases at a time” and had to return them within one
week. Id. Some forms Leek submitted went unprocessed. And when Leek requested
additional cases, prison officials would not provide any until he returned the ones he
had previously requested. Consequently, Leek was consigned to respond to the
district court’s show-cause order in Scoggin “with only the few cases, notes, and
books he had in his personal property.” Id. at 231. Since then, the district court in
that case (the same district judge who presided over this one) has dismissed the case
for failure to state a claim. 6
6 We note that neither the district court’s dismissal order in Scoggin nor the subsequent judgment in that case specifies whether that dismissal was with or without prejudice. We have previously explained that when a district court fails to specify whether its dismissal was with or without prejudice, we treat the decision as a dismissal was with prejudice. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir. 2007); see also Holden v. GEO Grp. Priv. Prison Contractors, 767 F. App’x 692, 696 (10th Cir. 2019) (unpublished) (applying that principle to § 1915A dismissal). 10 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 11
We conclude that the district court should not have dismissed Leek’s access-
to-courts claim stemming from the impediments he faced in litigating Scoggin while
at Lansing. 7 The facts here resemble those in Trujillo. There, we reversed the district
court’s dismissal after the pro se plaintiff complained about an “exact[-]cite system”
much like the one Leek describes here—the prisoner in Trujillo alleged that he was
“expected to know exactly what [legal materials] he need[ed] without any knowledge
of what materials might be available to him.” 465 F.3d at 1226. We observed that the
allegations relating to the exact-citation system “may state a viable claim of denial of
access to courts.” Id.; see also Clayton v. Tansy, 26 F.3d 980, 982 (10th Cir. 1993)
(remanding for district court to consider whether “exact[-]cite paging system for
access to the law library” amounted to violation of prisoner’s constitutional rights);
Corgain v. Miller, 708 F.2d 1241, 1244, 1250 (7th Cir. 1983) (noting that prison’s
library system had not satisfied constitutional demands because “the inmate could
obtain state[-]law materials only by providing precise citations[] and could obtain
precise citations only if he could refer to state[-]law materials”); Griffin v. Grijalva,
773 F. App’x 1003 (9th Cir. 2019) (unpublished) (reversing and remanding dismissal
where prisoner alleged he was “required to use a paging system in order to obtain
access to legal materials” and “that his requests through the paging system were
7 We also conclude, however, that Leek was not prejudiced by any such impediments at Hutchinson: Because the district court held the Scoggin defendants’ motion to dismiss in abeyance while the show-cause order was pending, Leek was never required to respond to that motion. He therefore experienced no actual injury to his ability to litigate Scoggin during his time at Hutchinson. 11 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 12
denied”). Here, as in Trujillo, Leek specifically alleges that he was seeking “legal
materials relevant” to his underlying federal case, Scoggin, but that the restrictive-
housing unit’s “exact[-]cite system left him with inadequate materials to pursue such
litigation.” 465 F.3d at 1227.
To be sure, on its face, Leek’s second amended complaint does not
“specifically explain” how his now-dismissed federal case “was nonfrivolous.” Id.
But Leek does allege that he was prevented from effectively responding to the district
court’s show-cause order in an already-filed conditions-of-confinement case. See
Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (explaining that “‘actual
injury’” requirement can be satisfied by showing plaintiff was “hindered [in his or
her] efforts to pursue a nonfrivolous claim” (quoting Lewis, 518 U.S. at 356)). And in
so doing, he references his underlying Scoggin complaint, his response to the district
court’s show-cause order drafted while in the restrictive-housing unit at Lansing, and
the district court’s dismissal order. Because Leek references those documents in his
complaint and they are central to his claim, we may—and do—consider them to
determine whether he has plausibly alleged that he was hindered in pursuing a
nonfrivolous claim. See Gee, 627 F.3d at 1186 (explaining that extrinsic documents
may be considered at dismissal stage when they are central to plaintiff’s claim). In
addition, we take judicial notice of the documents in Leek’s underlying proceedings.
Id. at 1191.
Looking at those documents reveals that in Scoggin, Leek alleged (among
other claims) that his Eighth Amendment rights were violated after Linda Scoggin, a
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supervisor in the prison’s kitchen, told other prisoners that Leek was a snitch after
Leek reported her to a superior for making rude comments. Leek further alleged that
Scoggin had worked in the prison for over ten years and so understood the
consequences that can follow from labeling a prisoner a snitch. He also alleged that,
after Scoggin labeled him a snitch, he was stressed and concerned about being
assaulted. The district court dismissed Leek’s Eighth Amendment claim because he
did not allege that he faced any repercussions, that he suffered any physical injury, or
that Scoggin intended other prisoners to injure Leek.
We express no ultimate opinion on the merits of the district court’s dismissal
in Scoggin. We note, however, that this court—and our sibling circuits—have
repeatedly held that labeling a prisoner a snitch can rise to the level of deliberate
indifference to a substantial risk of serious harm, in violation of the Eighth
Amendment. 8 See Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001)
(collecting cases from this circuit and sibling circuits); Northington v. Marin, 102
F.3d 1564, 1567–68 (10th Cir. 1996) (explaining that “telling inmates [plaintiff] was
a snitch” was “not inconsistent with a knowing disregard of a substantial risk to
[plaintiff’s] safety”). We have also held that the PLRA’s physical-injury requirement
under 42 U.S.C. § 1997e(e)—one of the district court’s grounds for dismissing
Leek’s Eighth Amendment claim—does not restrict recovery of punitive damages
8 Because we conclude Leek’s Eighth Amendment claim is nonfrivolous, we need not address Leek’s other Scoggin claims. That is, the nonfrivolous nature of one claim in Scoggin is sufficient to support our conclusion in this case that Leek has adequately alleged prejudice for purposes of his access-to-court claim. 13 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 14
when a prisoner establishes a constitutional violation. See Searles v. Van Bebber, 251
F.3d 869, 881 (10th Cir. 2001) (explaining that jury verdict finding constitutional
violation without any physical injury entitles plaintiff to award of nominal damages
and observing that physical-injury requirement does not preclude punitive damages).
And Leek’s prayer for relief in Scoggin requests punitive damages.
But for purposes of assessing Leek’s access-to-courts claim at issue in this
litigation, we need not determine that his Eighth Amendment claim in the underlying
Scoggin action would or should have succeeded if Leek had been allowed greater
access to the law library. See Simkins, 406 F.3d at 1244. Instead, the actual-injury
requirement for Leek’s access-to-courts claim requires “only that [the underlying
claim] was not frivolous.” Id. We think Leek has cleared that bar and, for screening
purposes under § 1915A, hold that the district court erred when it concluded Leek did
not plausibly allege interference in pursuing a nonfrivolous claim in the Scoggin
litigation.
Accordingly, we reverse the district court’s dismissal of Leek’s access-to-court
claim against the Lansing defendants stemming from the alleged hinderances he
faced in attempting to litigate Scoggin while housed in Lansing’s restrictive-housing
unit and remand for further proceedings. But we affirm the dismissal of his access-to-
court claims against the Hutchinson defendants because those claims are too
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speculative and fail to allege any nonfrivolous claims that Leek was prevented from
or hindered in pursuing. 9
II. Supplemental State-Law Claim
As a final matter, Leek argues that if we reinstate any of his federal claims, his
supplemental breach-of-contract claim under Kansas law against IC Solutions and
Kroeker should be reinstated. We agree. Since we partially reinstate Leek’s access-
to-court claim, “the district court should reconsider,” at the proper procedural
juncture, whether “to decline supplemental jurisdiction over [Leek’s] state-law
claim[].” Baca v. Sklar, 398 F.3d 1210, 1222 n.4 (10th Cir. 2005).
As to the specifics of Leek’s state-law claim, we observe that the district court,
in declining to exercise supplemental jurisdiction, noted that “none of the individual
defendants are alleged to be parties to the contract with IC Solutions and therefore
are not liable for breach of contract.” R. 214. Yet Leek’s second amended complaint
alleges that he is a third-party beneficiary to the contract between IC Solutions and
the Kansas Department of Corrections. And when “a plaintiff and defendant lack
privity, Kansas law allows a qualified third-party beneficiary plaintiff to enforce a
contract expressly made for his or her benefit even though he or she was not a party
to the transaction.” Kansas ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 1230–
31 (Kan. 2005). So although we express no opinion as to the overall merit of Leek’s
state-law claim, we urge the district court, when reconsidering whether to exercise
9 Given this conclusion, we need not decide whether Leek’s claims for declaratory and injunctive relief against the Hutchinson defendants are moot. 15 Appellate Case: 21-3165 Document: 010110672389 Date Filed: 04/18/2022 Page: 16
supplemental jurisdiction over that claim, not to overlook whether Leek has plausibly
alleged a breach-of-contract claim under a third-party-beneficiary theory.
Conclusion
We reverse the district court’s dismissal of Leek’s access-to-courts claim
against the Lansing defendants relating to his attempts to litigate Scoggin. We also
reinstate Leek’s state-law claim for breach of contract against IC Solutions and
Kroeker and instruct the district court to reconsider whether to exercise supplemental
jurisdiction over that claim at the appropriate procedural juncture. We affirm the
district court’s dismissal of all other claims against all other defendants and remand
for further proceedings consistent with this opinion.
Entered for the Court
Nancy L. Moritz Circuit Judge