*The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not

binding precedent, except under the doctrines of law of the case, res judicata, and

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

FEB 9 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOE T. BELL,

Plaintiff - Appellant,

v.

JOHN WHETSEL; SGT. WADE,

Defendants - Appellees.

No. 98-6050

(D.C. No. 97-CV-795)

(Western District of Oklahoma)

ORDER AND JUDGMENT*

Before ANDERSON, McKAY and LUCERO, Circuit Judges.

Joe Thomas Bell appeals the district court’s dismissal of his 42 U.S.C. §

1983 claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

In 1996 appellant Bell, an inmate at the Oklahoma Detention Center, filed a

suit under 42 U.S.C. § 1983, complaining about prison conditions. The district

court dismissed the suit because of Bell’s failure to pay the initial filing fee. Bell

claimed that appellees negligently caused the dismissal of his suit by failing to pay
1

 Appellees argue that this court is without jurisdiction because Bell appeals a

magistrate’s recommendation, which they assert is not a final decision of a district court

under 28 U.S.C. § 1291. However, under our rule of liberal construction of pro se

pleadings, we conclude that Bell’s docketing statement was the “functional equivalent” of

a notice of appeal, challenging the district court’s adoption of the magistrate’s

recommendation and denial of Bell’s motion to vacate. Smith v. Barry, 502 U.S. 244,

248-49 (1992).

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the required fee with funds from his prison account. He thus filed another suit

under § 1983, asserting a violation of rights protected by the First, Eighth, and

Fourteenth Amendments. The magistrate judge recommended a dismissal of 

Bell’s complaint, finding that to the extent his suit was founded on a negligence

theory, he had failed to state a claim upon which relief could be granted. The

magistrate also concluded that Bell suffered no prejudice as a result of appellees’

alleged negligence because this court had ordered a reinstatement of his earlier

suit. See Bell v. Whetsel, 1997 WL 639319 at *1 (10th Cir. Oct. 14, 1997); see R.

doc. 31 at 1-4. Bell filed an untimely motion objecting to the magistrate’s

recommendation. The court denied the motion, construing it as an order to vacate

its adoption of the magistrate’s recommendation.1 See R. doc. 37.

We review de novo a district court’s dismissal of a civil rights suit for

failure to state a claim upon which relief can be granted. See Lucero v. Gunter, 52

F.3d 874, 877 (10th Cir. 1995). Proof that a prison official “acted intentionally or

with deliberate indifference” is necessary to sustain a suit under 42 U.S.C. § 1983. 

Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996).
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Assuming Bell can overcome his failure to file a timely objection to the

magistrate’s recommendation, he fails to state a cognizable cause of action.

Bell’s complaint did not allege that appellees acted intentionally or with deliberate

indifference. He claimed they were grossly negligent. However, “[m]erely

characterizing the negligence as ‘gross’ does not change its essential character. . . . 

Neither simple nor gross negligence implies an intentional and deliberate violation

of constitutional rights, and consequently neither form of negligence satisfies the

scienter requirement of § 1983.” Woodward v. City of Worland, 977 F.2d 1392,

1399 n.11 (10th Cir. 1992).

Even if Bell’s complaint is liberally construed as alleging deliberate

indifference, he fails to allege how appellees’ conduct could have caused the

dismissal of his suit. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986)

(“causation is an essential element of a section 1983 cause of action”). The

district court ordered Bell to pay an initial five dollar filing fee by January 11,

1997, or show good cause for the failure to pay. According to Bell, it was not

until or immediately after January 11, 1997 that he requested appellees to pay the

filing fee. See Appellant’s Br. at 1. Therefore, appellees’ delay in paying the fee 
2

 To the extent Bell asserts an access to courts claim, he also fails to show how he

was prejudiced by appellees’ conduct. See Galetka, 74 F.3d at 194.

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could not have caused Bell to miss the January 11, 1997 deadline.2

AFFIRMED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge