No. 96-5095, Roberts v. Glanz

Attachment (Recommendation of U.S. Magistrate Judge) not available electronically.*This order and judgment is not binding precedent except under the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.

UNITED STATES COURT OF APPEALS Filed 12/31/96 TENTH CIRCUIT

_____________________ LEONARD RENAL ROBERTS, Plaintiff-Appellant,
v. STANLEY GLANZ, Defendant-Appellee. No. 96-5095 (D.C. No. CV-92-497-H) (N.D. Oklahoma)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and HENRY , 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.
Mr. Roberts, a prisoner proceeding pro se, brought suit against Tulsa-3-

County Sheriff Stanley Glanz claiming several const itutional violations pursuant to 42 U.S.C. § 1983. 42 U.S.C. § 1983 (1994). The United States District Court for the Northern District of Oklahoma granted Mr. G lanz's motion for summary judgment on all claims. Mr. Roberts now appeals th e district court's decisions regarding his constitutional right of access to the courts and inadequate medical treatment claims. We affirm.
We review motions for summary judgment de novo. Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgm ent is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. "When applying this standard, we examine the factual record and reasonable inferences theref rom in the light most favorable to the [non-moving] party." Id.

Mr. Roberts first claims Mr. Glanz violated his con stitutional right of access to the courts. "[T]he ... constitutional ri ght of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate l aw libraries or adequate assistance from persons trained in the law." Bounds v. Smith , 430 U.S. 817, 828 (1977). However, Bounds did not create an abstract, free-standing right to a law-4-

library or legal assistance. Lewis v. Casey , 116 S. Ct. 2174, 2180 (1996). To establish a constitutional violation, a prisoner mu st demonstrate restricted access to legal materials hindered efforts to pursue a leg al claim; in other words, the prisoner must be able to show he was actually injur ed. Id. The Supreme Court has provided examples of what constitutes actual in jury in a right of court access claim: [A prisoner] might show, for example, that a compla int he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's lega l assistance facilities, he could not have known. Or that he ha d suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint. Id.

Mr. Roberts claims Mr. Glanz violated his constitut ional right of access to the courts because the jail failed to mail a habeas corpus writ, and because the jail delayed or neglected several of Mr. Roberts' reques ts for law books. Prior to Mr. Roberts' criminal trial, Mr. Roberts attempted to f ile two habeas corpus writs. The jail properly mailed the first writ, and it was filed with the district court. Mr. Roberts then attempted to file a second writ with t he Oklahoma criminal appeals court challenging the sufficiency of the State's ev idence against him, but the jail failed to mail the writ. Mr. Roberts claims "[h]ad appellant been able to get his-5-

petitions before the Criminal Court of Appeals prio r to trial, there would never have been a trial." However, the merits of Mr. Rob erts' assertions raised in his pre-trial habeas corpus writ would have been addres sed during Mr. Roberts' direct appeal of his criminal conviction and not prior to his criminal trial. Mr. Roberts has not shown the jail's failure to mail the writ o f habeas corpus resulted in a missed court deadline or resulted in the court fail ing to hear his claims. As a result, even assuming the truth of Mr. Roberts' cla ims, as we must, Mr. Roberts fails to establish actual injury under Lewis , 116 S. Ct. at 2180.

Mr. Roberts also claims Mr. Glanz violated his cons titutional right of access to the courts because some of his law-book r equests went unheeded. However, Mr. Roberts fails to establish actual inju ry as a result of the jail delaying or neglecting Mr. Roberts' requests for le gal materials. Mr. Roberts has failed to show actual injury by showing, for exampl e, that his limited access to legal materials led to a claim's dismissal or led t o his inability to file a claim. Consequently, Mr. Roberts has failed to show he has suffered an acutal injury under Lewis due to restricted access to legal materials. Id.
Furthermore, to sustain a claim against an individu al defendant under § 1983, a plaintiff must establish that defendant's p ersonal responsibility for the-6-

plaintiff's inability to access the courts. Ruark v. Solano , 928 F.2d 947, 950 (10th Cir. 1991). While such personal responsibility maybe established through the defendant's failure to supervise his or her employe es, the plaintiff must be able to show the supervisory defendant "expressly or otherw ise, authorized, supervised, or participated in conduct which caused the constitutional deprivation." Snell v. Tunnell , 920 F.2d 673, 700 (10th Cir. 1990), cert. denied, 499 U.S. 976 (1991). As support for his claim that Mr. Glanz supervised conduct resulting in a constitutional deprivation, Mr. Roberts references a letter Mr. Glanz wrote to Mr. Roberts referring Mr. Roberts to a discontinued leg al assistance program. Nevertheless, this letter does not establish Mr. Gl anz in any way authorized or participated either in the jail's failure to mail t he habeas corpus writ, or in the jail's failure to timely fill Mr. Robert's law-bookrequests. Consequently, Mr. Roberts has failed to show Mr. Glanz's personal res ponsibility for any violations of Mr. Roberts' constitutional rights. Accordingly , we affirm the district court's grant of summary judgment in favor of defendants onthe legal access claim.

Mr. Roberts also claims Mr. Glanz unconstitutionall y denied him medical treatment. Mr. Roberts' constitutional claim is ba sed on his assertions that after complaining of stomach pain, Mr. Roberts saw only n urses rather than a doctor and received improper medication for his ulcer. Th e district court held because-7-

Mr. Roberts failed to show "deliberate indifference " to his medical needs as required under Estelle v. Gamble , 429 U.S. 97, 104 (1976), he failed to establish a constitutional violation. Upon careful review of the record, we affirm the district court's grant of summary judgment in favor of Mr. G lanz for substantially the same reasons set forth in the magistrate judge's re commendation, a copy being attached. To the extent Mr. Roberts attempts to ap peal the remaining decisions of the district court regarding denial of exercise pri vileges and unsanitary kitchen procedures, upon careful review, we affirm for subs tantially the same reasons set forth in the magistrate judge's recommendation.

Entered for the Court: WADE BRORBY United States Circuit Judge