* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAY 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL M. FLANERY,

Plaintiff - Appellant, No. 98-3235

v. (D.C. No. 97-CV-3154) DANIELLE WAGNER, individually and in her official capacity as activities specialist, (D. Kan.)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs 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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Plaintiff-Appellant Michael M. Flanery, appearing p ro se, appeals the-2-

district court’s entry of summary judgment in favorof Defendant-Appellee Danielle Wagner. Plaintiff initiated this action p ursuant to 42 U.S.C. § 1983, alleging that Defendant and other prison officials violated his civil rights by discriminating against him on the basis of race, di splaying deliberate indifference to his safety, and promoting a “[r]iotous” atmosphe re between black and white inmates. R, Doc. 1 at 2. His claims seem to stem primarily from his allegation that Defendant started or spread a rumor among pris on inmates that Plaintiff was a white supremacist and that he had asked for a swa stika to use in his religious observances. Plaintiff claimed that by making this alleged statement Defendant violated prison rules and regulations and thereby v iolated his due process rights. Plaintiff further asserted that, as a result of Def endant’s alleged statement, his life is in danger, he has been subjected to threats and questioning by black inmates, and he has suffered adverse psychological effects. Plaintiff sought injunctive and declaratory relief as well as compensatory and puni tive damages. In addition to his complaint, Plaintiff submitted three motions fo r appointment of counsel to the district court. The magistrate judge denied these motions in an Order dated January 28, 1998. In an Order dated July 31, 1997, the district courtgranted Plaintiff leave to proceed in forma pauperis and dismissed all named defendants except for Defendant Wagner. Additionally, the court ordered prison officials at the Lansing-3-

Correctional Facility to undertake an investigation of the complaint and submit a written report regarding the matters alleged in Pla intiff’s complaint pursuant to Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978). Defendant subsequ ently submitted an answer to Plaintiff’s complaint along with a Martinez report. In response, Plaintiff submitted a pleading entitled “ Suggestions in Opposition to Defendant[’]s Answer,” R., Doc. 20, in which he add ressed the affirmative defenses asserted by Defendant. Defendant then fil ed a motion for summary judgment. Plaintiff submitted a response to the su mmary judgment motion which was accompanied by statements from various inmates with knowledge about his allegations. The district court granted Defendant’s motion for s ummary judgment on August 11, 1998. According to the court, Plaintiff’s claim for money damages was precluded by a provision of the Prison Litigati on Reform Act of 1995, which states: “No Federal civil action may be brought bya prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical inju ry.” 42 U.S.C. § 1997e(e). The court also held that Plaintiff was not entitled to declaratory or injunctive relief because he presented no evidence that he was likely to suffer future injury as a result of any rumors started or spread by Defe ndant. Plaintiff timely filed a notice of appeal and the district court granted him leave to proceed on appeal in-4-

forma pauperis

. On appeal, Plaintiff contends that the district cou rt failed to apply the law and dismissed his complaint on improper reasoning. He also reiterates his claims that Defendant violated his right to due process byacting in deliberate indifference to his safety. We review the district court's grant of summary jud gment de novo, applying the same legal standard used by the district court. See Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Summary ju dgment is appropriate when “the pleadings, depositions, answe rs to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). We view the evidence and the reasonable inferences therefrom in the light mo st favorable to the nonmoving party. See Byers , 150 F.3d at 1274. Due to his pro se status, we have construed Plainti ff’s complaint liberally.
See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). This action is subj ect to the Prison Litigation Reform Act because Plaintiff file d his complaint after its effective date. See Craig v. Eberly , 164 F.3d 490, 494 (10th Cir. 1998) (stating that section 1997e(e) applies to cases commenced af ter its enactment). Section 1997e(e) of the PLRA requires plaintiffs to make “aprior showing of physical-5-

injury” to maintain a civil action for any mental o r emotional injury suffered while in custody. 42 U.S.C. § 1997e(e). Because P laintiff has not shown that he suffered any physical injury as a result of Defenda nt’s alleged conduct, the district court properly entered summary judgment onhis claim for compensatory damages. Cf. Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 807 (10th Cir. 1999) (stating that suits seeking damages for mental and emotional distress “‘cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms’” (quoting Zehner v. Trig g , 133 F.3d 459, 461 (7th Cir. 1997)). Although Plaintiff also sought punitive damages aga inst Defendant, and although claims for such damages are not necessaril y barred by section 1997e(e),

see Perkins , 165 F.3d at 808 n.6, punitive damages are availab le under 42 U.S.C. § 1983 only for conduct which is “shown to be motiv ated by evil motive or intent[] or when it involves reckless or callous in difference to the federally protected rights of others.” Smith v. Wade , 461 U.S. 30, 56 (1983). Plaintiff has made no showing that Defendant’s alleged conduct ro se to that level in this case. Accordingly, summary judgment was proper in this re spect as well. Additionally, we agree with the district court thatPlaintiff is not entitled to declaratory or injunctive relief. Plaintiff presen ted no evidence that Defendant initiated any rumor. In fact, the statements of Pl aintiff’s fellow inmates on which1 In addition, we need not address the thorny issue o f whether allegations

that a defendant spread rumors that a prisoner is aracist would, standing alone, be sufficient to prove the likelihood of future injuryrequired to state a claim for declaratory or injunctive relief. In this case, Pl aintiff likely would not be entitled to such relief in any event due to his evident succ ess in convincing his fellow -6- he relies suggest that another inmate may have init iated the rumor. See R., Doc. 29, 12/10/97 Letter from Frank Bolin to Michael Fla nery at 1; 4/26/98 Affidavit of Ricky F. Gregg at 1-2. Further, although the ev idence suggests that Defendant may have confirmed that she had heard a rumor aboutPlaintiff in response to an inquiry by an inmate, see R., Doc. 32 at 2 n.1, there is nothing in the reco rd to suggest that she told anyone else about the rumors or otherwise spread the rumors among the inmate population. Because Plaintiff fai led to present any evidence supporting his claims, he has not established that Defendant engaged in any conduct for which declaratory or injunctive relief would be available. If Plaintiff had succeeded in demonstrating that De fendant engaged in conduct for which declaratory or injunctive relief were appropriate, he still would be required to demonstrate the existence of a “‘rea l and immediate threat that he would again’ suffer similar injury in the [relative ly near] future.” Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 211 (1995). However, in light of o ur conclusion that declaratory and injunctive relief a re inappropriate in this case, we need not reach the issue of whether Plaintiff has s ufficiently demonstrated the existence of a threat of future injury. 1inmates that he is not a white supremacist. See R., Doc. 29, 2/2/97 Statement by

Frank Bolin at 2; 12/10/97 Letter from Frank Bolin to Michael Flanery at 1. -7- The decision of the United States District Court fo r the District of Kansas is, therefore, AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge