*This order and judgment is not binding precedent except under the doctrines of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 judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### OCT 1 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HENRY RAYMOND TAFOYA, Plaintiff-Appellant,

v. D. McCALL, Property Officer at C.S.P.; J. NOLAN, Physician; J. STARK; B. BRUNELL, Defendants-Appellees. No. 03-1087 (D. Colo.) (D. Ct. No. 00-B-693 (MJW))

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, PORFILIO , Circuit Judge, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.1 Specifically, Mr. Tafoya claims that, although the correctional facility provided

him some nursing care, state officials failed to provide him a doctor during a five-day illness in which he was unable to keep his food and medication down, thereby violating his Eighth Amendment right to be free from cruel and unusual punishment, and also violating various Colorado laws and regulations. In addition, when Mr. Tafoya failed to make arrangements to send prohibited personal items elsewhere or pay for other ordered items, prison officials confiscated and destroyed those items, which he claims violated his Due Process, Equal Protection, Freedom of Religion and Eighth Amendment rights. Finally, he claims state prison officials did not follow certain administrative regulations at some of his discipline hearings, thereby violating his Due Process, Equal Protection and Eighth Amendment rights.

-2- Henry Ray Tafoya, a pro se litigant and inmate at a state correctional facility in Colorado, appeals the district court’s entry of summary judgment in favor of certain state prison officials on his 42 U .S.C. § 1983 claims. We exercise jurisdiction under 28 U.S.C. § 1291 and af firm.

Mr. Tafoya’s § 1983 action arises from his allegati ons certain state prison officials violated his constitutional rights when: 1) he received inadequate medical care during his incarceration; 2) they impr operly confiscated some of his personal possessions; and 3) they failed to follow certain regulations during some of his disciplinary hearings. 1 During the course of litigation, Mr. Tafoya moved for appointment of counsel, complaining, in part, a bout his limited access to the law library. The magistrate judge denied the motio n, and the district court, applying its discretion, affirmed. Following disco very, the state moved for2The district court previously dismissed three of the six claims in Mr. Tafoya’s

Second Amended Complaint. These issues are not the subject of the district court’s summary judgment decision on appeal, and are not considered here.

-3- summary judgment on Mr. Tafoya’s three claims. 2

The magistrate judge issued a comprehensive “Recomm endation on Defendants’ [unopposed] Motion for Summary Judgment ” (Recommendation), which carefully analyzed the material facts and app licable law. In short, he found the defendants did not violate Mr. Tafoya’s Eighth Amendment right to adequate medical care during his five-day illness because he suffered no injury as a result of being cared for by nursing staff, rather than a doctor or physician’s assistant. He also determined the prison officials did not vio late Mr. Tafoya’s Due Process, Equal Protection and Eighth Amendment rights when t hey destroyed unauthorized personal property, which he refused to ship elsewhe re, or returned merchandise for which he refused to pay. Noting prison officia ls gave Mr. Tafoya ample opportunity to make arrangements on the dispositionof his property, the magistrate judge explained a difference exists betw een the constitutional right of ownership of protected property and the right to po ssess such property in prison. Finally, he determined Colorado’s two-year statute of limitations barred Mr. Tafoya’s claim that prison officials failed to foll ow certain regulations during-4-

four disciplinary hearings held in 1997. As a resu lt, the magistrate judge recommended summary judgment in favor of the state defendants. Mr. Tafoya filed objections to the magistrate judge’s Recommen dation, which the district court considered before adopting the magistrate jud ge’s Recommendation and granting the state’s motion for summary judgment.

Mr. Tafoya appeals the summary judgment determinati on, raising the same issues disposed of by the magistrate judge and district court. In support thereof, he makes general and conclusory statements that the state prison officials violated a plethora of federal and state laws, rules, and re gulations. He also suggests the district court did not have sufficient evidence or information to make a summary judgment determination. In addition, Mr. Tafoya cl aims he: 1) received no hearing or oral argument on his Amended Complaint; 2) was inappropriately prohibited from responding to the state’s motion fo r summary judgment or filing his own cross-motion for summary judgment, after he failed to respond in a timely manner because he did not know he could file such p leadings; 3) should have been appointed a lawyer because of the complexity o f the issues, the number of administrative regulations involved, and his own la ck of knowledge about filing procedures; 4) did not have sufficient access to an adequate law library; and 5) should have been allowed to file a class action sui t. The state asks us to affirm-5-

the district court’s summary judgment decision.

We review a summary judgment order de novo , considering the evidence and all reasonable inferences drawn therefrom in th e light most favorable to the nonmoving party. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Summary judgment is proper only when there is “no g enuine issue as to any material fact and the moving party is entitled to ajudgment as a matter of law.” Fed. R. Civ. P. 56(c). On appeal, this court const rues pro se pleadings liberally, applying a less stringent standard than formal plea dings drafted by lawyers. See
Haines v. Kerner , 404 U.S. 519, 520 (1972).

We have reviewed the parties’ pleadings and briefs, the record on appeal, the magistrate judge’s Recommendation and the distr ict court’s decision, and considered them in light of the applicable law. Th e magistrate judge issued a comprehensive and well-reasoned Recommendation, whi ch the district court adopted after considering Mr. Tafoya’s objections t hereto. Given the thoroughness of the Recommendation, we cannot bette r articulate the facts, applicable law or reasoning for granting the summary judgment, and therefore, will not repeat them here. Accordingly, for substa ntially the same reasons articulated in the magistrate judge’s February 4, 2 003 Recommendation, we find-6-

Mr. Tafoya’s three claims, raised in his Second Ame nded Complaint and at issue here, lack merit.

While Mr. Tafoya claims the district court should h ave held a hearing and allowed him to file an out-of-time response to the summary judgment motion, he fails to explain how oral argument or the filing of additional pleadings would have changed the summary judgment result. Moreover , ignorance of the law by incarcerated pro se litigants does not excuse promp t filings. See March v. Soares , 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001). As a result, we cannot say the district court abused its discretion in denying Mr. Tafoya’s request to file an out-of-time pleading. See Essence, Inc. v. City of Federal Heights , 285 F.3d 1272, 1289 (10th Cir.), cert. denied, 537 U.S. 947 (2002).

Similarly, Mr. Tafoya suggests the district court d id not have sufficient evidence before it to make a summary judgment deter mination, but fails to identify what, if any, evidence the court should have considered. Although he generally cites a multitude of federal and state laws, rules, regulations and cases, he fails to explain how the district court erred in rendering summary judgment in favor of the state prison officials. Even construi ng Mr. Tafoya’s pro se pleadings-7-

in support of his appeal liberally, his general and conclusory claims of constitutional violations are insufficient to show there is a genuine issue of material fact or that the state prison officials ar e not entitled to summary judgment as a matter of law. See Durre v. Dempsey , 869 F.2d 543, 545 (10th Cir. 1989). Accordingly, we reject Mr. Tafoya’s claims the district court should have held a hearing and allowed him to file an out-of-ti me response.

We next address Mr. Tafoya’s argument that, in prep aring his pleadings, he should have had access to a better law library and been appointed an attorney. Mr. Tafoya alleges the lack of an attorney prohibit ed his response to the summary judgment motion.

It is well established the Due Process Clause of th e Fourteenth Amendment guarantees state inmates the right to access the co urts for civil claims – but not “an independent right of access to a law library orlegal assistance.” Penrod v.
Zavaras , 94 F.3d 1399, 1403 (10th Cir. 1996); see also Lewis v. Casey , 518 U.S. 343, 351 (1996). To prevail on such a claim, an in mate must “demonstrate that the alleged shortcomings in the library or leal ass istance program hindered his efforts to pursue a legal claim.” Penrod, 94 F.3d at 1403.-8-

Mr. Tafoya has not alleged, nor can he show, the la ck of legal assistance actually “hindered his efforts to pursue a legal cl aim.” Lewis , 518 U.S. at 351. Instead, it is clear Mr. Tafoya was able to pursue his legal claims by filing an Amended Second Complaint and a host of other pleadi ngs, and certainly enjoyed access to the federal courts for the purpose of pur suing those claims. Even though Mr. Tafoya claims an attorney would have kno wn about the procedure and time restraints in responding to the state’s motion for summary judgment, as stated previously, he has not explained how a respo nsive pleading would have changed the summary judgment result.

As to his library claim, he suggests his library is inaccessible and inadequate stating “the library ... here is nothing ! It takes up to ten days just to get there! and their [sic] is only pads and some P. 3d.” Despite Mr. Tafoya’s complaints about the inadequacy of the library, we note he filed numerous pleadings during this litigation, most of which cit e a plethora of federal and state statutes, rules, regulations, and cases. The conte nt of these pleadings demonstrates Mr. Tafoya had sufficient access to an adequate law library for the purpose of pursing his claims. Thus, his legal ass istance and inadequate law library claims lack merit.3 We also note Mr. Tafoya has a history of unsuccessful appeals to this court, and

remind him of his continuing obligation to make payments on his previous filing fees.

-9- Finally, Mr. Tafoya’s single, conclusory statement that “[t]his case should have been a class action suite [sic]” is insufficie nt for appellate review. We generally will not consider conclusory and unsupported § 1983 claims, see Durre , 869 F.2d at 545, or exercise jurisdiction on issues not raised or addressed below. See Singleton v. Wulff

, 428 U.S. 106, 120 (1976); Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).

Accordingly, we AFFIRM the district court’s summary judgment decision for substantially the same reasons articulated in t he magistrate judge’s February 4, 2003 Recommendation and the district court’s February 24, 2002 Order. We grant Mr. Tafoya’s motion to pay the filing fee in partial payments, and remind him of his obligation to continue making partial payments of the appellate filing fee pursuant to 28 U.S.C. § 1915(b) until the entir e fee is paid. 3 The mandate shall issue forthwith.

Entered by the Court: WADE BRORBY United States Circuit Judge