*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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. 

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

### APR 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID L. DAVIS, Plaintiff-Appellant,

v. GENE HILL, Montrose County Sheriff; BRIAN BLACK, Montrose County Undersheriff; RICK ROWAN, Montrose County Deputy Sheriff; JIM MARTINEZ, Montrose County Deputy Sheriff; SUSAN SHOTTELL, Montrose County Deputy Sheriff; JOHN DOE #1, Montrose County Deputy Sheriff; ROBERT BRETHOUWER, Montrose County Jail Doctor; GARWEN S.J. JACKSON, Clerk of the Court, County of Montrose; BECKY WOLFORD, Deputy Clerk; VALERIE INDA, Deputy Clerk; CINDY BOWEN, Montrose County Commissioner; DAVID GAAN, Montrose County Commissioner; MEL STAATS, Montrose County Commissioner; DENNIS FRIEDRICH, District Court Magistrate, Defendants-Appellees. No. 97-1229 (D.C. No. 97-S-520) (D. Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.1 Mr. Davis’ complaint also asserted a 42 U.S.C. § 1985 claim which the

trial court dismissed as legally frivolous. Mr. Davis apparently does not appeal this action.

-2- 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.

Mr. David Davis, a state inmate and pro se litigant, appeals in forma pauperis the trial court's dismissal of one cause of actioncontained in his civil rights claims. 1 We conclude this appeal is frivolous and should b e dismissed. We also hold this appeal constitutes a "prior occasion " under the Prison Litigation Reform Act. See 28 U.S.C. § 1915(g).

Mr. Davis filed his 42 U.S.C. § 1983 complaint agai nst numerous defendants, including the sheriff, undersheriff, fo ur deputy sheriffs, the clerk of the state court, the deputy clerk of court, a state magistrate judge, and a physician. A fair reading of this complaint shows Mr. Davis se t forth essentially three causes of action. The first is an assertion defendants de nied him his constitutionally protected right of access to the courts. He claims he was denied access to a law-3-

library outside the jail "to work on the divorce ca se and other civil matters." The second claim involved an assertion that Mr. Davis w as improperly denied medical treatment. The third claim asserted a deputy used excessive force against Mr. Davis.

The trial court dismissed the denial of access clai m by concluding it was legally frivolous under 28 U.S.C. §1915(e)(2)(B)(i) , and failed to state a claim upon which relief could be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). The basis of the trial court's ruling is found in Lewis v. Casey , 116 S. Ct. 2174, 2181- 82 (1996), where the Supreme Court held the right o f access to the courts extends only as far as protecting an inmate's ability to pr epare initial pleadings in a civil rights action regarding his current confinement or an application for a writ of habeas corpus. See also Carper v. DeLand , 54 F.3d 613, 617, 616-17 (10th Cir. 1995). The trial court ordered Mr. Davis' claims c oncerning denial of medical treatment and excessive force to proceed.

Mr. Davis filed his notice of appeal on the right o f access claim. After learning of a jurisdictional problem, Mr. Davis suc ceeded in obtaining a Fed. R. Civ. P. 54(b) certification from the trial court. We therefore have jurisdiction under 28 U.S.C. § 1291.2Although the district court ruled Mr. Davis' acti on failed to state a claim,

the district court's decision and discussion appear ed to center on whether the complaint was frivolous. Because our ruling today rests on the frivolous nature of Mr. Davis' claim, we need not conduct a de novo review of the Fed. R. Civ. P. 12(b)(6) dismissal.

-4- Mr. Davis' brief to this court is essentially a res tatement of his complaint. The underlying basis of Mr. Davis' arguments is sho wing he was allegedly denied access to the courts. He asserts the trial court e rred in failing to consider Mr. Davis was a pre-trial detainee. He also offers, fo r the first time, an affidavit of a cellmate, alleging the state judge on Mr. Davis' ca se was angry Mr. Davis had not been transferred from the county jail to the Department of Corrections, and a letter from Mr. Davis to the county judge claiming it was his intention to file a civil action against a Montrose County Sheriff.

We review the trial court's determination the denia l of access claim is frivolous for abuse of discretion. 2 Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). Section 1915(e)(2)(B)(i) of Title 28 authorizes a district court to dismiss a claim if the court finds "the action is f rivolous or malicious." A complaint is "frivolous" where it lacks an arguable basis, either in fact or law. Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995).-5-

The Supreme Court, in Lewis , instructed Bounds v. Smith , 430 U.S. 817 (1977) "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything fro m shareholder derivative actions to slip-and-fall claims." Lewis , 116 S. Ct. at 2182. Rather, "[t]he tools it requ ires to be provided are those that inmates need in orderto attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement." Id. In Mr. Davis' complaint, he alleged he wished to p ursue "civil matters" including litigation relating to his divor ce, but he did not refer to civil matters concerning his condition of confinement or attack his sentence. Consequently the Supreme Court has spoken directly to the case at hand. Mr. Davis' right of access to courts does not extend to the litigation he sought to pursue. The fact Mr. Davis was a pre-trial detaine e when he wished access to legal materials is immaterial. See Love v. Summit County , 776 F.2d 908, 912 (10th Cir. 1985) (recognizing pre-trial detainees have th e same constitutional access rights to vindicate fundamental constitutional rights), cert. denied , 479 U.S. 814 (1986). Further, we ordinarily do not consider evi dence offered for the first time on appeal. John Hancock Mut. Life Ins. Co. v. Weisman , 27 F.3d 500, 506 (10th Cir. 1994) (stating the court will not consider evi dence not presented to the district court); Nulf v. International Paper Co. , 656 F.2d 553, 558 (10th Cir. 1981) (ruling matters not in the record will not be considered by this Court.). It is-6-

clear Mr. Davis' claim lacks an arguable basis, eit her in fact or law. The decision of the district court is correct and is therefore AFFIRMED.

As Mr. Davis' appeal is meritless and frivolous, itis a "prior occasion" under the Prison Litigation Reform Act. 28 U.S.C. § 1915(g) (limiting a prisoner's invocation of 28 U.S.C. § 1915 ( in forma pauperis ) to three or more prior occasions of actions or appeals dismissed as frivolous or which failed to state a claim).

Entered for the Court

WADE BRORBY United States Circuit Judge