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

### SEP 4 1997 

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

JOHN L. HAWKES, JR.,

Plaintiff-Appellant,

v. WYOMING DEPARTMENT OF CORRECTIONS HONOR CONSERVATION CAMP, CAPTAIN OF SECURITY, aka Ron Munoz, in his official capacity; WYOMING DEPARTMENT OF CORRECTIONS HONOR CONSERVATION CAMP SUPERINTENDENT, aka Barry Peterson, in his official capacity as Acting Superintendent; WYOMING DEPARTMENT OF CORRECTIONS STATE PENITENTIARY WARDEN, aka James Ferguson, in his official capacity; WYOMING DEPARTMENT OF CORRECTIONS DIRECTOR, in her official capacity aka JUDY UPHOFF; RON MUNOZ, individually; BARRY PETERSON, individually; JAMES FERGUSON, individually; JUDY UPHOFF, individually, Defendants-Appellees. No. 97-8006 (D.C. No. 96-CV-129) (D. Wyo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

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. Plaintiff John L. Hawkes, Jr. appeals from an orderof the district court dismissing his complaint under Fed. R. Civ. P. 12(b )(6) prior to service on defendants. We dismiss the appeal pursuant to 28 U .S.C. § 1915(e)(2)(B)(i),(ii). In this 42 U.S.C. § 1983 action, Mr. Hawkes allegedhe was denied his constitutional right of access to the courts as he was denied access to an adequate law library. He also alleged he was subjected to c ruel and unusual punishment in violation of the Eighth Amendment. He further cont ended he was denied due process and equal protection because his disciplinary hearing was held less than twenty-four hours after he was served with charges and the hearing officer and-3-

disciplinary committee chairman were the same perso n in violation of prison regulations. We review a district court’s order dismissing a complaint for failure to state a claim de novo. See Roman v. Cessna Aircraft Co. , 55 F.3d 542, 543 (10th Cir. 1995). We will uphold the dismissal only when it appears that the plaintiff can prove n o set of facts in support of the claims that would entitle the plaint iff to relief. In making this determination, we must accept all th e well-pleaded allegations of the complaint as true and must const rue them in the light most favorable to the plaintiff. Id. (quotations omitted). Mr. Hawkes alleged he was denied his constitutional right of access to the courts because the honor camp where he was imprison ed had an inadequate law library. He stated that as a result of the inadequ ate law facility he lost custody of his minor child. The right of access to the courts and the concomita nt right to an adequate law library or legal assistance, as set forth in Bo unds v. Smith , 430 U.S. 817, 821, 828 (1977), does not guarantee inmates the wherewithal to trans form themselves into litigating engines capable of filing everythin g from shareholder derivative actions to slip-and-fall claims. The to ols it requires to be provided are those that the inmates need in order t o attack their sentences, directly or collaterally, and in order t o challenge the conditions of their confinement. Impairment of any otherlitigating-4-

capacity is simply one of the incidental (and perfe ctly constitutional) consequences of conviction and incarceration. Lewis v. Casey , 116 S. Ct. 2174, 2182 (1996). Mr. Hawkes suffered no constitutional deprivation b ecause he was unable to prepare adequately for his child custody hearing . Mr. Hawkes’ argument that the right of access to the court must include more than just the right to challenge his sentence and conditions of confinement is unava iling. Mr. Hawkes also alleged he was placed in a cold, un heated detention cell for five days in January. In his complaint, Mr. Hawkes acknowledged that the heat was fixed two days after he filed a grievance. See R. tab. 1 at 2(f). An inmate must meet two prerequisites before the co nditions of his confinement implicate the Eighth Amendment. See Farmer v. Brennan , 511 U.S. 825, 834 (1994). First he must show that the condi tion he complains of was objectively serious enough to demonstrate that he w as deprived of the “‘minimal civilized measure of life's necessities.’” Id. (quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981)). Secondly, the inmate must s how that the named prison official acted with deliberate indifference to his health or safety. See id. (citing Wilson v. Seiter , 501 U.S. 294, 302-03 (1991)). Thus, while an allegation of inadequate heating may state an Eighth Amendment violation, see, e.g. , Ramos v. Lamm , 639 F.2d 559, 568 (10th Cir. 1980), cold temperatures for a short period of time do not alone necessarily result1 The waiver is part of the materials submitted by de fendants in response to

the court’s order. See Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978). While a court cannot resolve material disputes of f act by accepting a Martinez report’s factual findings when they conflict with t he pleadings, see Hall v. (continued...) -5- in a constitutional violation. Mr. Hawkes’ general comments with respect to the cold temperature, in and of themselves, are not suf ficient to establish an objectively serious threat to his life or health. Furthermore, Mr. Hawkes does not allege that he was not given adequate bedding, blankets, etc. to help him deal with the c old. Also, he acknowledged that two days after he filed a grievance and five d ays after he had been placed in the cell, the heating problem was fixed. Additiona lly, quite apart from his failure to state a condition sufficiently serious to show a n objective deprivation to meet the first prong, his complaint fails completely to state a culpable state of mind on the part of prison officials. Mr. Hawkes states no constitutional claim on this issue. Lastly, Mr. Hawkes asserts he was denied due proces s and equal protection because his disciplinary hearing was held less thantwenty-four hours after he was served with charges and the hearing officer and com mittee chairman were the same person in violation of prison regulations. Th e record contains Mr. Hawkes’ signed waiver of the mandatory seventy-two hour wai ting period. See R. tab. 13: “Waiver of 72 Hour Notice.” 1 Mr. Hawkes’ waiver of the waiting period negates1 (...continued)

Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991), the court m ay accept additional facts contained in the report which clarify a plain tiff’s complaint, see Taylor v. Wallace , 931 F.2d 698, 700 n.3 (10th Cir. 1991). Here, th e waiver confirms Mr. Hawkes’ allegation that his disciplinary hearing wa s held prior to the time set forth in the prison regulations, but clarifies thatthat situation occurred because Mr. Hawkes agreed to it. -6- his claim. The waiver contains no restriction indi cating Mr. Hawkes was demanding a minimum of twenty-four hours before the hearing be held. Mr. Hawkes’ complaint that prison officials’ failur e to follow prison procedures, is likewise not actionable. “Process i s not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wa kinekona , 461 U.S. 238, 250 (1983), cf. Sandin v. Conner , 515 U.S. 472, ___, 115 S. Ct. 2293, 2298-2300 (1995)(rejecting concept that prison regulations ar e more than procedural guidelines which confer protectable due process andliberty rights on inmates; rather these rights are limited to freedom from res traint which “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”). Mr. Hawkes has failed to allege any violation to any of his substantive interests which he had a legitimate cla im of entitlement.-7-

This appeal is frivolous or fails to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) or (ii) for purposes of counting “prior occasions” under 28U.S.C. § 1015(g). The appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge