* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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

SEP 18 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DARRYL WAYNE MANCO,

Plaintiff-Appellant,

v.

DAVID R. MCKUNE, Warden;

DOUGLAS FRIESZ, Major; ROBERT B.

PAYNE, SR., Captain; and JOHN W.

RUTLEDGE, Unit Team,

Defendants-Appellees.

No. 96-3312

(D.C. No. 94-CV-3378)

(District of Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument. 
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This is an appeal from the dismissal of a pro se prisoner’s action filed under 42

U.S.C. § 1983. The original complaint filed by plaintiff Manco asserted three separate

claims, but, on appeal, he attacks only the dismissal of his Eighth Amendment claim that

he was deprived of shoes and forced to walk in snow and ice for six and a half days. The

district court granted summary judgment to the defendants because its review of the

papers filed by them in support of their motion for summary judgment as well as Manco’s

responding documents disclosed no facts that would support the complaint. 

Defendants’ Martinez report disclosed that as Manco claimed upon his release

from segregation he was without shoes, but he was told to report to “Admissions and

Discharge” [A&D] with a copy of his property inventory to obtain new shoes. Manco

arrived at A&D without the inventory and was advised he could not obtain new shoes

without the document. Although Manco became upset by that refusal, he was issued and

accepted used boots. This same transaction, with the same results, was repeated days

later. Manco was also twice placed on “call out” to obtain new boots, but he did not

respond. Ultimately, he received new boots.

Although the Martinez report is supported by documentation, Manco’s response

contains only his unsupported statements. Even so, Manco does not deny he received two

pairs of used boots or that he was told all he had to do to obtain new boots was to bring to

A&D a copy of his property inventory. Although he asserts he was not called out to
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receive the boots, copies of the call out sheet unequivocally show his name appears twice

for A&D.

In short, then, the uncontroverted facts clearly demonstrate that contrary to his

claim, Manco was not deprived of adequate footwear. Indeed, the most his proof

indicates is that the prison authorities demanded he comply with procedure and that he

failed to do so. As the district court noted, this evidence falls far short of showing he was

subjected to unnecessary and wanton infliction of pain of a sort prohibited by the Eighth

Amendment.

It is clear the district court did not err in its disposition. Furthermore, we conclude

this appeal is frivolous within the meaning of 28 U.S.C. § 1915(e)(2)(B)(i) and DISMISS

it. This dismissal counts as a “prior occasion” under 28 U.S.C. § 1915(g).

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge