This order and judgment is not binding precedent, except under the doctrines of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

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

### MAR 6 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WILLIAM EARL TUCKER and WILLIAM FRANK SCHLICHER,

Plaintiffs-Appellants,

v. GOVERNOR BILL GRAVES,

Defendant-Appellee. No. 96-3015 (D.C. No. 95-CV-3527) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The district court denied plaintiffs’ motion to pro ceed in forma pauperis on

appeal, certifying that the appeal was legally friv olous and not taken in good faith. Plaintiffs then filed a motion to proceed i n forma pauperis on appeal in this court. Because plaintiffs filed their notice of appeal on January 5, 1996, before the enactment of the Prison Litigation Reform Act ( PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), the amended standar d for granting in forma pauperis status under 28 U.S.C. § 1915 does not app ly. See White v. Gregory , 87 F.3d 429, 430 (10th Cir.), cert. denied , 117 S. Ct. 528 (1996). We therefore determine plaintiffs’ motion to proceed in forma pa uperis on appeal under the old standard; that is, based on whether they have raise d “‘a reasoned, nonfrivolous argument on the law and facts in support of the iss ues raised on appeal.’” Id. (quoting DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991)). Under this standard, we grant plaintiffs’ motion to proce ed in forma pauperis on appeal.

-2- Plaintiffs William Earl Tucker and William Frank Sc hlicher, appearing pro se and in forma pauperis, 1 appeal from the district court’s dismissal of thei r civil rights action filed under 42 U.S.C. § 1983. We hav e jurisdiction under 28 U.S.C. § 1291, and affirm. Plaintiffs are Kansas state inmates housed in diffe rent facilities. They challenge a prison policy, effective January 1, 199 6, that prohibits interinstitutional mail except between immediate fa mily members. Plaintiffs allege in a conclusory fashion that they are co-pla intiffs in one or more lawsuits pending in other courts and have a need to correspo nd with each other to advance-3-

this other litigation. They seek, among other reli ef, declaratory and injunctive relief, and the convening of a three-judge panel. The district court read the complaint as asserting a general right among prison inmates, wherever housed, to assist each oth er in litigation. Because it has already been decided that states may impose reasona ble restrictions on the giving and receiving of legal assistance between inmates, see Johnson v. Avery , 393 U.S. 483, 490 (1969); Wilkerson v. Warden of U.S. Reform atory , 465 F.2d 956, 957 (10th Cir. 1972); McCarty v. Woodson , 465 F.2d 822, 825 (10th Cir. 1972), the district court, sua sponte and before service of th e complaint, dismissed plaintiffs’ complaint on the basis that it failed to state a cl aim. We review a dismissal under Fed. R. Civ. P. 12(b)(6 ) de novo, applying the same standard as the district court. See National Commodity & Barter Ass’n v. Gibbs , 886 F.2d 1240, 1243-44 (10th Cir. 1989). Under this standard, the dismissal of plaintiffs’ complaint was proper if, t aking all well-pleaded allegations as true and construing them in the light most favorable to plaintiffs, it is clear that they can prove no set of facts entitl ing them to relief. See id. at 1244. Although we read the complaint as raising a more sp ecific access to the courts issue than did the district court, we affirmthe district court’s dismissal with prejudice. Whether a state prison system’s ban on mail between inmates2 The Supreme Court held in Lewis v. Caseythat the doctrine of standing

establishes, as a prerequisite to an access to the courts claim, that an inmate must demonstrate an actual injury to pending or contempl ated litigation attacking his sentence or challenging the conditions of his confi nement. See 116 S. Ct. at 2179-82. Therefore, Ruark v. Solano , 928 F.2d 947 (10th Cir. 1991), in which this court held that some access to the courts clai ms are “not conditioned on a showing of need,” id. at 950, is effectively overruled on this point, as are subsequent cases that followed Ruarkon this point. See, e.g. , Beville v. Ednie , 74 F.3d 210, 212-13 (10th Cir. 1996); Housley v. Do dson , 41 F.3d 597, 598-99 (10th Cir. 1994). On the other hand, Lewis reaffirms our holdings in such cases as Treff v. Galetka , 74 F.3d 191, 194 (10th Cir. 1996), and Green v. J ohnson , 977 F.2d 1383, 1389-90 (10th Cir. 1992), that to mainta in an access to the courts claim, an inmate must show that denial or delay of access to the courts hindered his pursuit of nonfrivolous litigation.

3 In Mr. Tucker’s case, a reply brief three times the maximum page limit allowed by Fed. R. App. P. 28(g) without this court ’s permission. Since it is filed in violation of our rule, it is stricken. -4- housed in separate facilities who are co-plaintiffs to litigation and also pro se impinges the inmates’ right of access to the courts is an issue of first impression in this circuit--or, indeed, in any circuit, as faras we have been able to determine. Nevertheless, to make such a claim, plaintiffs mustdemonstrate an actual injury to pending or contemplated litigation resulting fro m the prison’s prohibition of such mail. See Lewis v. Casey , 116 S. Ct. 2174, 2179-82 (1996). 2 Plaintiffs have made only general and conclusory allegations of inj ury, even though they were put on notice of the deficiency by defendant’s resp onse brief, see Appellee’s Response Br. at 6-7, and both filed a reply brief. 3 “[C]onclusory allegations without supporting factual averments are insufficie nt to state a claim on which relief can be based.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). We-5-

therefore conclude that allowing plaintiffs an oppo rtunity to amend their complaint would be futile, and that their challenge to the district court’s dismissal of their access to the courts claim must fail. Plaintiffs’ separation of powers argument is without merit. Plaintiffs’ motion to proceed in forma pauperis on appeal is GRANTED. Plaintiff Tucker’s reply brief filed February 5, 19 97, is STRICKEN. The judgment of the United States District Court for th e District of Kansas is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge