FILED

United States Court of Appeals

Tenth Circuit

November 18, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT BARROCA,

Plaintiff - Appellant,

v.

CLAUDE MAYE; (FNU) JOHNSON;

MARY NOLAN; UNITED STATES

OF AMERICA,

Defendants - Appellees.

No. 16-3080

(D.C. No. 5:14-CV-03202-SAC-DJW)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MORITZ, Circuit Judges.**

Plaintiff-Appellant Robert Barroca, a federal inmate appearing pro se,

appeals from the district court’s dismissal of his Bivens1

 action pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b). Our jurisdiction arises

*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971).
under 28 U.S.C. § 1291, and we affirm.

In 1994, Mr. Barroca was convicted of several weapon and drug offenses in

the Northern District of California. 1 R. 7. He was transferred to USPLeavenworth on July 30, 2014. 1 R. 7. As a result of two pending cases he has

been involved in and two additional cases he is considering formally pursuing, he

has collected twenty-six boxes of legal materials over twenty-plus years. 1 R. 7;

Aplt. Br. at 6–7. When he arrived at USP-Leavenworth only two of his boxes

were at the prison. 1 R. 7. On August 20, Mr. Barroca formally complained

about his missing boxes and the prison’s policy of only allowing inmates to store

one box of legal materials in their cells. 1 R. 8. Other boxes are placed in a

storage room, to which inmates only have weekly access. R. 8. On the same day

he filed his complaint, a prison official went “directly to [Mr.] Barroca’s cell,

[and shook] it down.” 1 R. 8. Unbeknownst to Mr. Barroca, all twenty-six boxes

had arrived at the prison on August 14. 1 R. 9. He was given permission to

review his legal materials with an attorney from the Bureau of Prisons on

September 29. 1 R. 11–13.

Mr. Barroca sets forth two causes of action: (1) lack of access to the courts

and (2) retaliation. After reviewing Mr. Barroca’s response to an order to show

cause, the district court dismissed his complaint because he failed to demonstrate

an actual injury to contemplated or pending claims. R. 89–96. We review de

novo. Buchheit v. Green, 705 F.3d 1157, 1159 (10th Cir. 2012). 

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 Federal inmates “have a constitutional right of access to the courts.” 

Bounds v. Smith, 430 U.S. 817, 821 (1977). Like other constitutional rights, it

may be tempered to “preserv[e] internal order and discipline” in prisons. Bell v.

Wolfish, 441 U.S. 520, 546 (1979). For example, we have held that prisons may

limit the amount of legal materials inmates can store in their cells to maintain

security and safety. See Green v. Johnson, 977 F.2d 1383, 1390 (10th Cir. 1992). 

 To succeed on a denial-of-access claim, a plaintiff must allege an actual

injury to contemplated or pending litigation. Lewis v. Casey, 518 U.S. 343,

351–52 (1996). Mr. Barroca has not made such a showing. The court’s denial of

Mr. Barroca’s Rule 60(b) motion in his habeas petition, Barroca v. United States,

No. CR-94-0470 EMC, 2014 WL 5528063 (N.D. Cal. Oct. 31, 2014), was based

on the merits of that motion — allowing amendment of a prior § 2255 motion

would have been successive and was not warranted by existing law. Id. at *8. 

Mr. Barroca has similarly failed to demonstrate actual injury with respect to his

other pending action; the mere fact of delay is not sufficient.

Mr. Barroca has also not articulated how the one-box policy has caused

actual injury regarding his two contemplated lawsuits. The district court noted

that Mr. Barroca’s “filing of well drafted pleadings in the instant action clearly

demonstrates that he is fully capable of initiating a legal action notwithstanding

having limited or no access to his boxes of legal materials.” 1 R. 34–35. 

Mr. Barroca also claims that the prison official who shook down his cell

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retaliated against him for submitting a formal complaint. We disagree. To

successfully plead a claim of retaliation, Mr. Barroca must show “(1) that [he]

was engaged in constitutionally protected activity; (2) that the defendant’s actions

caused [him] to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in that activity; and (3) that the defendant’s adverse

action was substantially motivated as a response to [his] exercise of

constitutionally protected conduct.” Shero v. City of Grove, 510 F.3d 1196, 1203

(10th Cir. 2007). An isolated shakedown, a routine prison procedure, is not

sufficient to chill an inmate from filing additional complaints. 

AFFIRMED. 

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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