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Smith v. Bruce, 10th Cir. (2004)
Smith v. Bruce, 10th Cir. (2004)
FEB 5 2004
PATRICK FISHER
Clerk
No. 03-3191
(D.C. No. 03-CV-3116-GTV)
(D. Kan.)
Defendants-Appellees.
ORDER AND JUDGMENT
Before BRISCOE and McKAY , Circuit Judges, and
Judge.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
806 (10th Cir. 1999). We also construe the allegations in a pro se complaint
liberally, and [d]ismissal of a pro se complaint for failure to state a claim is
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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.
Applying these standards, we agree with the district court that plaintiff has failed
to state a claim on which relief may be granted. We also conclude that it would
be futile to give plaintiff an opportunity to file an amended complaint.
In Lewis v. Casey , 518 U.S. 343, 349-53 (1996), the Supreme Court
explained that a prisoner claiming he was denied access to the courts must
ultimately prove he suffered an actual injury by showing that the prison officials
acts hindered his ability to pursue a nonfrivolous legal claim. As a result,
plaintiff does not have an abstract, freestanding right to a law library or legal
assistance, and he cannot establish relevant actual injury simply by establishing
that his prisons law library or legal assistance program is subpar in some
theoretical sense.
Id. at 351.
Although plaintiff also referred to three federal district court cases in his
complaint, and alleged that defendants had prevented him from complying with
(continued...)
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Id.
at 5-6. The district court also noted that it appears plaintiff was represented by
an attorney during at least a portion of the relevant time, and . . . plaintiff had the
(...continued)
certain deadlines in one of the cases, plaintiff has made no reference to the
federal cases in his appellate brief. Plaintiff has therefore waived any claims with
respect to the federal cases. See Garcia v. Shanks , 351 F.3d 468, 473 n.2 (10th
Cir. 2003).
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option of having cases copied by the law schools located in Topeka and
Lawrence, Kansas.
Id. at 6.
Although we agree with the district court that plaintiff has failed to state a
claim for denial of access to the courts, we arrive at this conclusion based on a
different analysis. To begin with, as noted by plaintiff in his opening brief, the
two state appellate court orders attached to plaintiffs complaint were related to a
separate appeal filed by plaintiff that does not concern the motion he filed to
correct his sentence. Consequently, the orders are not relevant to the issue of
whether plaintiff needed access to the prison law library to appeal the denial of
the motion to correct his sentence.
Nonetheless, we conclude that, even if plaintiffs claim that defendants
deprived him of the use of the prison law library during the thirty-day period
under Florida law for filing an appeal is true, this fact did not prevent plaintiff
from filing a timely appeal regarding the denial of the motion to correct his
sentence. First, under the Florida Rules of Appellate Procedure, plaintiff was
required only to file a notice of appeal within thirty days from the rendition of the
trial courts order.
So. 2d 1164 (Fla. Dist. Ct. App. 2003). Plaintiff did not need access to a law
library to prepare a notice of appeal, as it only had to contain very general
information regarding the trial court proceedings.
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Second, plaintiff has not alleged that he was unaware of the thirty-day deadline
for filing a notice of appeal because he was denied access to the prison law
library. Thus, we conclude that plaintiff has failed to allege an actual injury
under Lewis , and we see no basis for giving him an opportunity to amend his
complaint.
Finally, we agree with the district court that plaintiff has failed to state a
retaliation claim. Although plaintiff claims that defendants terminated him from
his position as a law clerk in retaliation for his use of the prisons administrative
grievance process, the documents attached to plaintiffs complaint show that he
requested that he be relieved from his position as a law clerk so that he could
work on his pending legal actions. In addition, we agree with the district court
that plaintiff had no protected right to return to his former work assignment, and
the fact that he did not immediately obtain a new work assignment when he
completed his legal work does not reasonably suggest that there was retaliatory
conduct or discrimination. R., Doc. 9 at 7-8.
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