This order and judgment is not binding precedent, except under the *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

United States Court of Appeals

Tenth Circuit

October 24, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHANE BURDEN, 

Plaintiff - Appellant, No. 06-1175

v. (D.C. No. 06-CV-51-ZLW)

DRDC WARDEN, Under Color of

State Law, Official Capacity;

ATTORNEY GENERAL, Under Color

of State Law, Official Capacity,

(D. Colo.)

Defendants - Appellees.

 

ORDER AND JUDGMENT

*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

After examining Appellant’s brief and the record on appeal, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument.

This is a pro se state prisoner § 1983 appeal. Appellant filed a complaint

alleging violations of his constitutional rights in connection with the loss of his

manila folders, notes, and blank legal forms. The district court dismissed the
-2-

complaint as legally frivolous and denied Appellant’s “Objection of Order of

Judgement of Dismissal,” which it construed as a Motion to Reconsider. 

The district court held that Appellant’s due process rights were not violated

by the alleged theft of his folders because he could have used the prison grievance

procedure to obtain restoration or restitution of his personal property. Order and

Judgment of Dismissal, Doc. 10 at 2. Appellant had asserted that he filed a kite

to his case manager, but received no response. Complaint, Doc. 3 at 7. Appellant

also asserted that the kite he filed was stolen, preventing him from obtaining a

grievance form to proceed with the formal grievance procedure. Objection of

Order of Judgement of Dismissal, Doc. 11 at 1. Appellant did not assert that he

took any further actions to file a grievance, such as questioning the disappearance

of the kite or attempting a second time to obtain a grievance form. Thus, the

district court held that because Appellant could have used the prison grievance

procedure to obtain a remedy, his due process rights were not violated. Order and

Judgment of Dismissal, Doc. 10 at 2 (citing Hudson v. Palmer, 468 U.S. 517, 533

(1984)); see also D.O.C. Admin. Reg. 850-04, Grievance Procedure at IV.D.1.d

(“In the event the time limit concerning any step of the [grievance] process

expires without a response, the [inmate] may proceed to the next step within five

calendar days of the date the response was due.”).

The district court further held that to the extent Appellant intended to assert

a claim of denial of access to the courts, he failed to allege an actual injury. 
-3-

Order and Judgment of Dismissal, Doc. 10 at 3. Appellant must show that the

alleged theft of his legal materials hindered his efforts to pursue a nonfrivolous

legal claim that either attacked his sentence or challenged the conditions of his

confinement, see Casey v. Lewis, 518 U.S. 343, 355 (1996), and he must describe

the underlying legal claim “by allegations in the complaint sufficient to give fair

notice to a defendant,” see Christopher v. Harbury, 536 U.S. 403, 416 (2002). In

his complaint, Appellant asserted that the stolen notes related to “vares [sic]

lawsuite [sic] and differen [sic] issues and my case I’m in prison for.” 

Complaint, Doc. 3 at 8. Appellant also stated that his folders included “some

case law I might not ever find again that will help me fight this 24 year sentence.” 

Objection of Order of Judgement of Dismissal, Doc. 11 at 1. However, Appellant

provided no explanation regarding how these materials would assist his case or

what legal claims he was hindered in pursuing by the loss of his forms and

research. We also note that Appellant did not explain how Appellees were

responsible for the alleged loss of his legal materials. Rather, he simply alleged

without elaboration that his folders were taken by “a person,” “this

astabbulishment [sic],” and “someone at DRDC.” Complaint, Doc. 3 at 4-6. 

After a thorough review of Appellant’s brief and the record on appeal, we

agree with the district court that none of Appellant’s claims are cognizable under

§ 1983. For substantially the same reasons set forth by the district court in its

orders, we AFFIRM the district court’s dismissal of Appellant’s claims. We do,
-4-

however, GRANT Appellant’s motion for leave to proceed on appeal without

prepayment of costs or fees, and we remind Appellant of his obligation to make

the payments until the entire fee has been paid.

Entered for the Court

Monroe G. McKay

Circuit Judge