*This order and judgment is not binding precedent except under the doctrines of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

### MAY 20 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SYLVESTER DAVIS, Plaintiff-Appellant,

v. ARKANSAS VALLEY CORRECTIONAL FACILITY; MAJOR ARTLEY, Administrative head; RICK GARCIA; CROWLEY COUNTY CORRECTIONAL FACILITY; STEVE HARGETT; LEA MARTINEZ; GRACE NWEKE, Defendants-Appellees. No. 02-1486 (D. Colorado) (D.Ct. No. 01-M-237)

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O'BRIEN , Circuit Judges.

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. 34.1.9(G). The case is1 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. The operative pleading is Davis’ “Final Amended Prisoner’s Civil Rights Complaint.” (R., Docket Entry 17.) -2- therefore ordered submitted without oral argument. Sylvester Davis, a state prisoner, appeals the dist rict court’s dismissal of his 42 U.S.C. § 1983 complaint 1 for failure to state a claim upon which relief can be granted. See F ED
. R. C IV
. P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we agree Davis fails to state a claim and D ISMISS his appeal as frivolous. Davis was incarcerated at the Colorado Department o f Corrections’ Arkansas Valley Correctional Facility (AVCF) and later at its Crowley County Correctional Facility (Crowley). While incarcerate d at AVCF, he ran into disciplinary problems. He alleges as follows. On August 16, 2000, he was typing a paper in the General Library. Officer J. Halpin requested to see the paper. Davis did not comply. Instead, he removed the pape r from the typewriter and placed it in a pocket folder with other papers. Ha lpin confiscated the pocket2Davis claims the confiscated papers were legal materials in aid of seeking postconviction relief from his criminal conviction. Although the record is unclear as to the particulars of the materials, Davis complains specifically about two items: (1) a statement from one Tina King, and (2) an IOU from him to his co-defendant.

3 Davis was found not guilty of the possession charge because the paper with the other inmate’s name on it was legal notes rather than legal documentation. Davis was warned not to possess paperwork with another inmate’s name on it. -3- folder and also a manila envelope. 2 In the pocket folder, he found the sheet of paper on which Davis had been typing. It was legal work. The law librarian examined the pocket folder and manila envelope and found a handwritten sheet of paper with another inmate’s name on it. At a heari ng conducted on September 7, 2000, Davis was charged with disciplinary violation s for disobeying a lawful order (found guilty) and possession of unauthorizedlegal documents (found not guilty). 3 The following day, Davis sought return of the con fiscated legal materials on the basis he was found not guilty of p ossession of unauthorized legal documents. On September 13, Halpin informed Davis the seized papers were in the evidence locker in the Receiving/Discharge Depa rtment and he could contact that department concerning their retrieval. On Oct ober 5, in response to a Step I grievance Davis filed, Officer Steve Hartley inform ed him legal materials were not permitted in the General Library, and as a resu lt his confiscated paperwork was considered contraband and would be treated as s uch. He further warned Davis that he had ten days to “mail the items out o r have them destroyed.” (R. Docket Entry 75, Ex. B.) On October 30, Officer Ga rcia, responding to a Step II4 The record is unclear whether the papers were intentionally destroyed, negligently

destroyed or merely misplaced. We will assume, without finding, that the papers were intentionally destroyed as contraband pursuant to prison regulation.

5The pain medication prescribed by AVCF was for treatment of an allergy-related sinus condition. The medical staff at Crowley prescribed Chlor-Trimeton and directed Davis to obtain pain medication from the canteen. -4- grievance Davis filed, communicated essentially the same information: Davis’ confiscated papers were subject to disposition as c ontraband because legal work was to be done in the Law Library and not in the Ge neral Library. Furthermore, the papers contained material concerning another in mate’s case, which regulation prohibited. Davis did not elect to mail the items out of the facility or authorize their destruction. He claims Officers Hartley and Garcia authorized their destruction on October 30. 4 In response to a Step III grievance, again seekin g return of his materials, Davis was informed on Dece mber 29 that he was required to pursue his claim through an appeal of the discip linary action that led to the confiscation of his materials, not through the grie vance process. In February 2000, Davis was transferred to Crowley. According to his complaint, the medical staff at Crowley discontinue d pain medication previously prescribed for him free of charge at AVCF. 5 He claims he was required to purchase the medication over-the-counter at the Cro wley canteen at a cost he could not afford. He also complains that his $3.00 co-pay for medical visits should cover the cost of his pain medication.6Although Davis variously characterizes his claims against Hartley and Garcia as

violations of the Fifth Amendment (destruction of legal property, deprivation of access to court, retaliatory transfer), Fourteenth Amendment (confiscation and destruction of legal materials), and First and Sixth Amendments (deprivation of access to court), we construe his deprivation of access to court claim to be an alleged violation of the First and Fourteenth Amendments, and all of his remaining allegations to be subsumed in his Fourteenth Amendment claim. See Hudson v. Palmer, 468 U.S. 517, 523 (1984) (right of access to courts grounded in First Amendment); Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-30 (1982) (due process clause protects right of access to courts).

7Exhibits attached to a pleading are considered a part thereof. F ED
. R. C IV
. P. 10(c). -5- In his complaint, Davis alleges Hartley and Garcia violated his Fourteenth Amendment right to due process by confiscating and destroying his legal materials and by transferring him to Crowley in ret aliation for challenging the confiscation. He also claims they violated the Fir st Amendment by interfering with his right of access to the courts. 6 Additionally he alleges Steve Hargett, Warden of Crowley, violated his Eighth Amendment ri ght to reasonable medical care. He seeks $100,000.00 in damages. We review de novo the district court’s dismissal of a complaint unde r F ED
. R. C IV
. P. 12(b)(6) for failure to state a claim. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). “[A]ll well-pleaded factual allegations in the . . . complaint are accepted as true and viewed in the light most favor able to the nonmoving party. 7 A 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove n o set of facts in support of his claim which would entitle him to rel ief.” Id. (quotations and citation omitted). Although we co nstrue pro se pleadings-6-

liberally, Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), “[we] will not supply additional factual allegation s to round out a plaintiff's complaint or construct a legal theory on a plaintif f's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nor are w e “bound by conclusory allegations, unwarranted inferences, or legal conclusions.” Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994). As to Davis’ claims against Hartley and Garcia, Dav is has failed altogether to allege either of them was involved in the confis cation of his legal materials. Therefore, the confiscation portion of his claim fa ils. As to the destruction portion of his claim, he only alleges in conclusory fashion that either Hartley or Garcia was involved in the destruction of his mater ials. This is insufficient. The mere fact each may have signed a grievance response indicating the confiscated materials were subject to disposal as contraband ha rdly suffices to establish that either participated in or authorized the destructio n of the materials. For this reason, the destruction portion of his claim fails. Even if Davis adequately alleged that Hartley and Garcia intentionally destr oyed or authorized the destruction of his legal materials pursuant to pris on regulation ( see n.4), an act which concededly requires a pre-deprivation hearing in order to comply with due
process, Gillihan v. Shillinger, 872 F.2d 935, 939-40 (10th Cir. 1989), we conclude the pre-deprivation due process accorded t o Davis was sufficient. He8See Logan, 455 U.S. at 434 n.7 (due process not violated where claimant does not

avail himself of hearing procedure). -7- was informed through the grievance process he could preserve the confiscated materials by sending them out of the facility; othe rwise, they would be destroyed. In failing to arrange to send the materials out of the facility, he acceded to their destruction. Furthermore, he was informed he must appeal the underlying disciplinary action in order to contest the confisc ation. The record is devoid of any evidence he pursued an appeal. 8 Under these circumstances, due process is satisfied. Davis’ claim that Hartley and Garcia retaliated aga inst him by transferring him to Crowley is, like the confiscation claim, dev oid of specific factual allegations connecting either of them to his transf er. Consequently, Davis’ retaliation claim fails as well. Finally, while Da vis enjoys the fundamental right of access to the courts, Lewis v. Casey, 518 U.S. 343, 346 (1996), to state a claim for deprivation of this right he must demonstrate a n actual injury that “hindered his efforts to pursue a legal claim.” Id. at 351. He failed to demonstrate to the district court how the destruction of his legal mat erials hindered him in the petitioning for post-conviction relief. Turning to Davis’ claim against Hargett, while it i s true that “[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate9Dismissal of Davis’ appeal as frivolous counts as a strike against him. U.S.C. §

1915(g). Dismissal by the district court for failure to state a claim also counts as a strike. Id. Therefore, he accumulates two strikes as a result of this litigation. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”). -8- violates the Eighth Amendment[,]” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (quotation omitted), it is also true that “a superv isor is not liable under § 1983 for the actions of a subordinate unless an affirmative link exists between the constitutional deprivation and either the superviso r's personal participation or his failure to supervise . . . .” Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996) (quotation omitted). Davis has failed to dem onstrate this link. Copying Hargett with correspondence outlining his complaint s about medical care, without more, does not sufficiently implicate the warden un der § 1983. We conclude Davis’ appeal is frivolous under 28 U.S .C. § 1915(e)(2)(B)(i) and DISMISS it. 9 We also deny leave to appeal in forma pauperis and remind Davis of his obligation to pay in full the filing a nd docketing fees. Entered by the Court: Terrence L. O’Brien United States Circuit Judge