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

### OCT 18 2002 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID ANDREW WOODRUFF, Plaintiff - Appellant,

v. (NFN) PAULSON, in his/her official capacity as Corrections Officer, Wyoming Department of Corrections State Penitentiary; (NFN) PHILLIPS, Officer, in his/her official capacity as Corrections Officer, Wyoming Department of Corrections State Penitentiary; (NFN) WILLIAMSON, in his/her official capacity as Officer at the Wyoming State Penitentiary; VANCE EVERETT, Warden, in his official capacity at the Wyoming Department of Corrections State Penitentiary; JUDY UPHOFF, in her official capacity as Director of the Wyoming Department of Corrections; Sergeant (NFN) SILWEL, in his/her official capacity as Corrections Officer at the Wyoming Department of Corrections State Penitentiary, Defendants - Appellees. No. 02-8027 D.C. No. 02-CV-024-B (D. Wyoming)* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. -2- 

### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

Mr. David Woodruff, a prisoner at the Wyoming State Penitentiary, brought various complaints, based on both state and federal law, against the Wyoming Department of Corrections and various officers at t he penitentiary. He asserted violations of his constitutional rights including a ccess to the courts, due process, and equal protection, based on his allegation that he has been provided with insufficient paper for legal work and the pens prov ided are too difficult to use. He further alleged he is subjected to cruel and unu sual punishment in violation of the 8th Amendment, both because the guards wake himduring the night, causing pain, ringing in his ears, stress, insomnia, and an gry outbursts, and because the lights in his cell are too bright, causing his eyes to become red and irritated, making it difficult for him to watch television whi le lying on his bed, and rendering him unable to conduct his legal work. Th e district court dismissed the-3-

complaint in its entirety for failure to state a cl aim and for being frivolous. When the district court dismisses a claim as frivol ous under the Prison Litigation Reform Act (“PLRA”) § 1915(e)(2)(B)(i), we review for abuse of discretion. See Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). When the district court dismisses under the PLRA § 1915( e)(2)(B)(ii) for failure to state a claim, we review the decision de novo

. See Perkins v. Kansas Dep’t of
Corrections , 165 F.3d 803, 806 (10th Cir. 1999). The districtcourt did not delineate precisely which claims it dismissed underwhich sections, and as the outcome on all of the claims would be the same unde r either standard of review, we will review all of Mr. Woodruff’s claims de novo

. A claim is legally frivolous if the plaintiff asserts the violation of a legal interest that does not exist, or asserts facts thatdo not support an arguable claim. Neitzke v. Williams , 490 U.S. 319, 324-25 (1989). Because Mr. Woodruf f is proceeding pro se, we construe his complaint libera lly. Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (1991). However, even construing the complaint liberally, we agree w ith the district court that Mr. Woodruff has failed to provide any facts on the bas is of which we might find a constitutional violation. On his claim of denial of access to the courts, Mr. Woodruff has not demonstrated that failure of prison staff to provid e him with his requested thirty-4-

sheets per day of paper has hindered him in pursuin g any non-frivolous legal claims or caused him any other prejudice. See Lewis v. Casey , 518 U.S. 343, 350- 53 (1996). On his claim for equal protection violations, he has failed to allege that he has been treated differently from others. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp. , 429 U.S. 252, 265-66 (1997) (requiring allegation of disparate treatment in equal protecti on cases). Mr. Woodruff has also failed to allege facts suffic ient to support his claim of cruel and unusual punishment. Cruel and unusual punishment is defined as punishment that “although not physically barbarous, involves the unnecessary and wanton infliction of pain.” Clemmons v. Bohannon , 956 F.2d 1523, 1525 (10th Cir. 1992) (quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981)). A prisoner claiming that he has suffered such punishment must show officials’ deliberate indifference to the sufficiently egregious conditio ns of confinement. Mitchell v. Maynard, 80 F.3d 1433, 1441-42 (10th Cir. 1996) (citing Wilson v. Seiter , 501 U.S. 294 (1991)). Thus, a court considering a cond itions of confinement claim must ask both whether the officials acted with a su fficiently culpable state of mind, and whether the alleged wrongdoing was object ively harmful enough to rise to the level of a constitutional violation. Id. at 1442 (citing Hudson v. McMillian , 503 U.S. 1, 8 (1992)). Here we agree with the dist rict court that Mr. Woodruff has failed to allege facts showing either that the officers’ conduct towards him1 We deny the motions Mr. Woodruff filed while this appeal was pending.

He has not met the standards for mandamus. And with respect to his multiple motions for a temporary restraining order and preli minary injunction, we do not consider motions based on new facts or new events a sserted on appeal that were not before the district court. -5- was objectively harmful enough to constitute a viol ation of the 8th Amendment or that prison officials acted with deliberate indiffe rence towards him. We deny Mr. Woodruff’s motion to proceed without pr epayment of fees, remind him he owes the unpaid balance of the filing fee, and DISMISS the appeal. 1 When a civil action is dismissed as frivolous, itis counted as a “strike” pursuant to 28 U.S.C. § 1915(g). Mr. Woodruff is r eminded that he will be prohibited from bringing civil actions or filing ap peals if on three or more prior occasions he has brought an action or an appeal that was dismissed as frivolous or for failure to state a claim. Id. Based on the present action filed in the district court and this appeal, Mr. Woodruff now has two str ikes against him.

ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge