FILED

United States Court of Appeals

Tenth Circuit

August 25, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GERALD DAVID SHUPE, JR.,

Plaintiff-Appellant,

and

RANDY DEAN MORGANFLASH,

Plaintiff,

v.

WYOMING DEPARTMENT OF

CORRECTIONS; PRISON HEALTH

SERVICES, INC.; ROBERT O.

LAMPERT, in his official capacity as

Wyoming Department of Corrections

Director and individually; SCOTT D.

ABBOTT, in his official capacity as

Wyoming Department of Corrections

State Penitentiary Former Warden and

individually; MICHAEL J. MURPHY,

in his official capacity as Wyoming

Department of Corrections State

Penitentiary Warden and individually;

JOHN COYLE, in his official capacity

as Prison Health Services, Inc.

Medical Director and individually;

KATHERINE MAHAFFEY, in her

official capacity as Prison Health

Services Mental Health Director and

individually; PAMELA NICHOLLS,

in her official capacity as Wyoming

Department of Corrections State

Penitentiary Former Education

Manager and individually; DESIREE

No. 07-8087

(D.C. No. 2:06-CV-00284-CAB)

(D. Wyo.)
* 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

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LOPEZ, in her official capacity as

Wyoming Department of Corrections

State Penitentiary Mail Room

Supervisor and individually;

MICHELLE BRANNAN, in her

official capacity as Wyoming

Department of Corrections State

Penitentiary Law Clerk and

individually; RODNEY PEACH, in his

official capacity as Wyoming

Department of Corrections State

Penitentiary Sergeant and individually;

TONI NICKELSON, in her official

capacity as Wyoming Department of

Corrections State Penitentiary

Corrections Officer and individually,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.

Gerald David Shupe Jr. appeals from an order of the district court

dismissing his prison civil-rights action for failure to state a claim. Mr. Shupe

and coplaintiff Randy Dean Morganflash (who is not pursuing an appeal) alleged
1 Mr. Shupe has moved to dismiss his appeal as it involves his claims

alleging discussion of personal information by prison staff, gender-based

discrimination, inadequate mental health care, inadequate medical care, and

excessive use of force. We grant the motion to dismiss. 

2 Defendants have moved to dismiss this appeal as a sanction for a technical

rules violation, noting that Mr. Shupe sought an extension to file his pro se brief

after the original time for filing the brief had expired. See Objection to

Appellant’s Request for Extension filed March 3, 2008. Because this court has

already granted the extension, see Order filed February 21, 2008, such a sanction

would be inappropriate. 

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eight claims for relief in their complaint, but Mr. Shupe now challenges the

dismissal only with respect to three: improper handling of inmate mail, denial of

access to the prison law library, and abuse of the prison’s “temporary restriction

order” policy.1

 We exercise de novo review, Teigen v. Renfrow, 511 F.3d 1072,

1078 (10th Cir. 2007), and affirm.2

 

Inmate Correspondence

All the specific factual allegations in the complaint about prison mail

involved correspondence between the two plaintiffs (and defendant Desiree

Lopez’s continuing to handle their mail after being identified as a defendant in a

suit concerning that activity). Inmate-to-inmate correspondence was, accordingly,

the focus of the district court, which held that the constraints imposed were

constitutionally permissible under Turner v. Safley, 482 U.S. 78 (1987).

Mr. Shupe does not challenge the district court’s reasoning in this respect, but

argues that the court erred by ignoring a distinct First Amendment claim raised
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regarding the prison’s handling of inmate correspondence with the media. The

complaint refers to media mail in one conclusory allegation:

Mail to and from reporters is to be treated much the same way as

legal mail. Media mail is privileged pursuant to Taylor v. Sterrett,

532 F.2d 462 (5th Circuit 1976) and must not be opened unless done

so in the presence of the sending/receiving inmate. The Wyoming

State Penitentiary does not treat media mail as privileged [and,] thus,

censors it.

R. Vol. 1 doc. 1 at 5. It is true that the district court did not explicitly consider

this allegation. But, as our review is de novo, we may still affirm if we

independently conclude that the complaint fails to state a claim for censorship of

Mr. Shupe’s media mail. See Deephaven Private Placement Trading, Ltd. v.

Grant Thornton & Co., 454 F.3d 1168, 1172 (10th Cir. 2006). 

In assessing the legal sufficiency of a complaint, we look to the “well

pleaded facts, as distinguished from conclusory allegations.” Shero v. City of

Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). In civil-rights actions

against individual government actors, the factual allegations should “make clear

exactly who is alleged to have done what to whom, to provide each individual

with fair notice as to the basis of the claims against him or her, as distinguished

from collective allegations against the state.” Robbins v. Oklahoma, 519 F.3d

1242, 1250 (10th Cir. 2008). No such facts are provided here. The complaint

does not specify what the alleged “censorship” entailed, who engaged in it, or

whether it even involved any of Mr. Shupe’s mail. Consequently, the district
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court’s failure to address the media aspect of the First Amendment claim does not

alter our conclusion that the claim was properly dismissed. 

Access to Law Library

The district court rejected Mr. Shupe’s claim regarding denial of access to

the law library, because he had not alleged that his ability to litigate any specific

legal claim had been impaired, as required by Lewis v. Casey, 518 U.S. 343, 351

(1996). Mr. Shupe now argues that the requisite injury is shown by the

termination of his parental rights in a state adoption proceeding while he was

incarcerated. Defendants object that this is a new allegation absent from the

complaint and the prison grievances attached to it. Although the matter is not

quite as clear-cut as defendants suggest, we agree that the complaint fails to state

a claim under Lewis. 

The complaint alleges that Mr. Shupe was acting pro se in a list of cases,

one of which was “Laramie County, Wyoming District Court CASE NO.

Unknown–adoption proceedings.” R. Vol. 1 doc. 1 at 7. But there is no

allegation that his parental rights were at stake in that proceeding. Further, the

complaint does not state what legal materials Mr. Shupe needed, but could not

access, to engage in that litigation—facts essential to a Lewis claim in a

prison-law-library case. See Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.

2006). All Mr. Shupe provided was the broad, vague, and conclusory assertion

that access to the library was “crucial to his cases.” R. Vol. 1 doc. 1 at 7. This
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court has made it clear that conclusory allegations will not support a Lewis claim.

See Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999). 

In any event, a prison’s affirmative duty to assist inmates’ access to courts

(by, for example, creating and providing access to law libraries) is implicated

only by challenges to conviction and matters relating to confinement; as for other

legal matters, prison officials need only avoid obstructing inmates’ own efforts to

access the courts. See Simkins v. Bruce, 406 F.3d 1239, 1242 (10th Cir. 2005);

Carper v. DeLand, 54 F.3d 613, 616-17 (10th Cir. 1995). The adoption

proceedings alluded to in the complaint fall into the latter category, and

Mr. Shupe’s allegations—that the prison law library did not provide him with

materials he wanted—do not state a claim for denial of the limited rights

applicable to that category. 

Abuse of Temporary Restriction Order (TRO) Policy

Mr. Shupe contends that in retaliation for filing grievances and lawsuits, he

was placed on a TRO that (1) violated his due process rights, in that prescribed

procedures were not followed, and (2) violated his Eighth Amendment rights, in

that the TRO was improperly used for a punitive purpose rather than its intended

administrative purpose. The district court rejected both claims. It held that due

process concerns were not implicated, because Mr. Shupe “fail[ed] to allege any

sort of atypical and significant hardship [necessary to trigger due process

protections under Sandin v. Conner, 515 U.S. 472, 484 (1995),] as a result of [his]
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placement on a TRO.” R. Vol. 2 doc. 59 at 13. It held that Eighth Amendment

concerns were not implicated, because Mr. Shupe failed to allege the objective

and subjective elements for such a claim based on conditions of

confinement—namely, an extreme deprivation “denying the minimal civilized

measure of life’s necessities,” Hudson v. McMillian, 503 U.S. 1, 9 (1992)

(internal quotation marks omitted), and deliberate indifference by the prison

official involved, Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). 

We first address the due-process claim. The complaint focused solely on

the alleged procedural omissions and did not address the substantive prerequisite

that would make such omissions potentially actionable: there was no allegation

that the TRO imposed a significant and atypical hardship; indeed, there were no

allegations to indicate what the restrictions were under the TRO. On appeal Mr.

Shupe belatedly attempts to fill the gap in his pleadings, setting out several

restrictions imposed by the TRO and asserting that they satisfy the Sandin

standard. “We need not consider ‘allegations newly made by [plaintiffs] on

appeal, [however], since it is only the sufficiency of the complaint which is being

reviewed.’” Harris v. Champion, 51 F.3d 901, 908 (10th Cir. 1995) (quoting

Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566 (10th Cir. 1993)). Doing so here

would be particularly inappropriate. Mr. Shupe had ample opportunity to address

the Sandin issue after defendants specifically raised it in a motion filed three

months before the district court dismissed the case. And it is not at all clear that
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the conditions referred to on appeal (without citation to any record source) would

satisfy Sandin, given that Mr. Shupe does not claim that there was any effect on

the length of his confinement, that he concedes that the TRO lasted less than three

weeks, and that (according to defendants’ record-supported explanation) the TRO

was imposed for legitimate safety reasons based on personal threats to Mr. Shupe.

See Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir.

2007) (discussing factors relevant to Sandin analysis of conditions imposed in

connection with administrative segregation). 

As for the Eighth Amendment claim, Mr. Shupe never alleged that the

conditions of the TRO caused an extreme deprivation sufficient to implicate

constitutional strictures. Rather, he complained that the TRO policy, which he

acknowledged had “good uses” administratively, had been “[mis]used as a

punitive tool” in his case. R. Vol. 1 doc. 1 at 9-10. This mistakes what the

Eighth Amendment requires. Its application does not turn on a characterization of

conditions as administrative or punitive, but on whether those conditions deprive

an inmate of the “minimal civilized measure of life’s necessities.” Hudson, 503

U.S. at 9. Whatever other impropriety may be alleged as to the use of the TRO,

absent such a deprivation there can be no Eighth Amendment claim. 

On appeal Mr. Shupe argues that the TRO violated his Eighth Amendment

rights because he suffers from depression and prison officials intentionally failed

to perform required wellness checks while he was confined under the TRO. 
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Again, we need not consider this belated allegation, see Harris, 51 F.3d at 908,

and there is good reason for not doing so. Mr. Shupe had months to shore up his

Eighth Amendment claim after it was challenged by defendants, but he never

sought to amend his pleadings, much less to add the entirely new and distinct

claim for denial of medical care that he now seeks to interject into the case. And

that claim still lacks any allegation regarding the requisite “substantial harm”

caused by the lack of care during the short term of the TRO. See Kikumura v.

Osagie, 461 F.3d 1269, 1292 (10th Cir. 2006) (delay in medical care constitutes

Eighth Amendment violation only if it resulted in substantial harm, such as

consequent injury or pain), abrogated on other grounds as explained in Robbins

v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir. 2008). 

The judgment of the district court is AFFIRMED. As explained above,

Mr. Supe’s motion to dismiss the appeal in part is GRANTED, and defendants’

motion to dismiss the appeal in its entirety is DENIED. Mr. Shupe’s motion for

leave to proceed in forma pauperis is GRANTED and he is reminded that he must

continue making partial payments until the filing fee is fully paid. 

Entered for the Court

Harris L Hartz

Circuit Judge