* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### JUN 24 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN MOORE, Plaintiff-Appellant,

v. DONICE NEAL; LYNN ERICKSON; ARISTEDES W. ZAVARAS; LINDA MCCALL, Defendant-Appellees. No. 97-1420 (D.C. No. 97-D-1024) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , 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 ause is therefore ordered submitted without oral argument.1 Mr. Moore also alleged an Eighth Amendment violati on based on the

prison’s policy of requiring inmates to use dental piks instead of dental floss. In his Reply Brief on appeal, Mr. Moore concedes the d enial of dental floss, by itself, does not constitute an Eighth Amendment vio lation. Reply Brief at 11. -2- Stephen Moore, a pro se state prisoner, brought thi s action under 42 U.S.C. § 1983 alleging that various prison officials subje cted him to unconstitutional cruel and unusual punishment and impaired his rightof access to the courts by enforcing a prison security policy limiting him to only one pair of eye glasses at a time. 1 The district court ordered a report under Martine z v. Aaron , 570 F.2d 317 (10th Cir. 1978). After Mr. Moore responded to the report, the district court dismissed the action under 28 U.S.C. § 1915(e)(2)(B ) as legally frivolous and for failure to state a claim upon which relief may be g ranted. Mr. Moore appeals and we affirm. We first address defendants’ argument that we lack jurisdiction over this appeal because Mr. Moore’s notice of appeal was fil ed more than thirty days after entry of the district court’s order. See Fed. R. App. P. 4(a). Defendants point out that Mr. Moore failed to obtain leave to file a lat e appeal. However, defendants overlook Fed. R. App. P. 4(c), under which an inmat e’s notice of appeal is deemed timely if he places it in the prison’s inter nal mail system on or before the last day for filing. See also Swoboda v. Dubach , 992 F.2d 286, 288-89 (10th Cir. 1993) (“a pro se prisoner’s notice of appeal is fil ed with the court ‘at the time-3-

petitioner delivered it to the prison authorities’” ) (quoting Houston v. Lack , 487 U.S. 266, 276 (1988)). The record here contains un disputed evidence showing Mr. Moore delivered his notice of appeal to prison officials within the applicable thirty-day period. His appeal is therefore timely. Mr. Moore asserts the district court erred in dismi ssing his suit after he had paid the filing fee without allowing him leave to a mend his complaint. Section 1915(e)(2) provides that “[n]otwithstanding any fil ing fee . . . that may have been paid ,” the court shall dismiss the case at any time if the court determines that the action is frivolous or fails to state a claim for r elief. 28 U.S.C. § 1915(e)(2) (emphasis added). Mr. Moore’s assertion that the c ourt erred in dismissing without granting him leave to amend is incorrect. The district court stated in its order that it had considered the material submittedby Mr. Moore in his motion for leave to amend before dismissing the suit, and acco rdingly dismissed Mr. Moore’s request to amend as moot. We see nothing procedura lly improper in the manner in which the court issued its order. Mr. Moore also contends the court erred in dismissi ng his Eighth Amendment claim, asserting defendants subjected himto cruel and unusual punishment by refusing his request for two pairs of glasses, one for distance vision and one for reading. Mr. Moore was seen by prison medical personnel who recommended that Mr. Moore use bifocals, which woul d correct both his distance2The record reflects that Mr. Moore destroyed his b ifocals shortly after

beginning to use them. -4- and close vision in compliance with the prison’s on e-pair rule. When Mr. Moore complained he was unable to use the bifocals becaus e they gave him headaches, 2 the medical personnel determined that Mr. Moore cou ld read either without glasses or with the glasses that corrected his dist ance vision, or that he could read with his reading glasses and do without his distanc e vision glasses. Prison officials violate the Eighth Amendment when they are deliberately indifferent to the serious medical needs of prisone rs in their custody. Estelle v. Gamble , 429 U.S. 97, 104-06 (1976). We find no evidence of acts or omissions sufficiently harmful to constitute deliberate indif ference to Mr. Moore’s vision problems. Id. at 106. A prisoner who merely disagrees with a di agnosis or a prescribed course of treatment does not state a con stitutional violation. See id. at 107; Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993); Johnson v. St ephan , 6 F.3d 691, 692 (10th Cir. 1993). The district courtdid not err in dismissing the Eighth Amendment claim. Finally, Mr. Moore contends defendants violated his right of access to the courts, arguing that the failure to provide him with glasses to correct his reading vision prevented him from doing necessary legal work. The right of access to the courts prohibits prison officials from “actively interfering with inmates’ attempts3 We grant Mr. Moore’s motion to supplement the reco rd. In view of our

disposition of this appeal, however, we deny his mo tion for court-ordered discovery and his motion for a temporary restrainin g order and for preliminary injunctive relief. -5- to prepare legal documents, or file them.” Lewis v . Casey , 116 S. Ct. 2174, 2179 (1996) (citation omitted). An inmate alleging sucha violation must show actual prejudice by demonstrating that the challenged pris on action in fact interfered with his ability to challenge the conditions of his confinement. Id. at 2180-82. The voluminous handwritten material filed by Mr. Mo ore both in the district court and on appeal, in which Mr. Moore cites pertinent l egal authority and discusses the record in detail, undercuts any argument that t he prison’s policy limiting him to one pair of glasses actually interfered with his ability to challenge that policy. The court did not err in dismissing this claim. 3 The order of the district court dismissing this act ion under 28 U.S.C. § 1915(e)(2)(B) is AFFIRMED

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge