## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DAVID LESLIE. BROWN, JR.,

Plaintiff-Appellant,

v. CHERIE MILLER SALES; BEN LEHEW, Defendants-Appellees.

DAVID LESLIE BROWN, JR.,

Plaintiff-Appellant,

v. LARRY FIELDS,

Defendant-Appellee.

DAVID LESLIE BROWN, JR.,

Plaintiff-Appellant,

v. KATHY WATERS,

Defendant-Appellee. No. 97-6118 (D.C. No. 95-CV-1782) (W.D. Okla.)

No. 97-6119 (D.C. No. 96-CV-61) (W.D. Okla.)

No. 97-6130 (D.C. No. CIV-96-145-L) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the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. -2- ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate records, t his panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. These cases are therefore ordered submitted without oral argument. Plaintiff David Leslie Brown, Jr., appeals the district court’s grant of summary judgment to defendants in these three civil rights actions brought pursuant to 42 U.S.C. § 1983. In all three actions , plaintiff asserts violations of his constitutional rights in connection with the de lay of prison officials in providing him with his personal property and legal materials following his transfer from Lawton Community Correctional Center (LCCC) to another facility on or about June 1, 1995. We conclude that the gra nt of summary judgment to defendants in all three cases was correct, and we a ffirm.1 Plaintiff has brought three prior appeals also rais ing issues going to his

belief that he was denied court access. See Brown v. Sales , No. 97-6097, 1997 WL 687727 (10th Cir. Oct. 31, 1997) (unpublished or der and judgment); Brown v. Sales , No. 96-6014, 1997 WL 606853 (10th Cir. Oct. 2, 19 97) (unpublished order and judgment); Brown v. Sales , No. 96-6068, 1997 WL 375347 (10th Cir. July 8, 1997) (unpublished order and judgment). -3- I. Background On June 1, 1995, plaintiff was transferred from LCC C to another institution. It appears that his personal property , including a large amount of legal materials, was not transported with him at th at time. The record indicates, and plaintiff admitted, that he received all of his legal material except for one witness statement and two court orders on or about September 5, 1995, and had received all of his personal property by April 1996

. In his various complaints regarding the events surr ounding his transfer, plaintiff asserted that he was denied access to the courts, due process, and equal protection, that he was discriminated against basedon race, and that he was retaliated against because he filed numerous grievances and lawsuits. 1 The district court adopted the respective reports and r ecommendations of the magistrate judge, recommending the grant of summaryjudgment to defendants in each case. Although there is considerable overlap in plaintiff’s claims, for the sake of clarity, we will address the issues raised in each case separately.-4- II. Discussion
A. Standard of Review Because plaintiff appears before us on appeal pro s e, we construe his pleadings liberally. See Shabazz v. Askins , 14 F.3d 533, 535 (10th Cir. 1994). We review a grant of summary judgment de novo, appl ying the same standard as that applied by the district court. See id. Summary judgment is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Although the court considers all evidence in a light most favorable to the nonmoving party, the nonmoving party may not rely on unsupported, conclu sory allegations, see Shabazz , 14 F.3d at 535.
B. No. 97-6118 Plaintiff filed this suit against defendants Cherie Miller Sales and Ben Lehew, correctional officers at LCCC, claiming thatdefendants unconstitutionally deprived him of his personal property and legal mat erials because of his race and in retaliation for his various lawsuits and grievan ces. The district court granted summary judgment to defendants. On appeal, plainti ff asserts that (1) the magistrate judge and the district court applied imp roper legal standards; (2) the magistrate judge ignored applicable law; (3) the ev idence in the case establishes-5-

that plaintiff was entitled to summary judgment; an d (4) the district court erred in refusing to file plaintiff’s amended complaint. It is undisputed that prisoners have a constitution al right to access to the
courts. See Bounds v. Smith , 430 U.S. 817, 821 (1977); Smith v. Maschner , 899 F.2d 940, 947 (10th Cir. 1990). Moreover, prison o fficials may not affirmatively impede a prisoner’s efforts to access the courts. See Green v. Johnson , 977 F.2d 1383, 1389 (10th Cir. 1992). It is also well estab lished that prison officials may not retaliate against an inmate because of the inmate’s exercise of his constitutional right of access to the courts. See Smith , 899 F.2d at 947. In granting summary judgment, the magistrate judge concluded that plaintiff had failed to establish that any delay in receipt of his legal materials prejudiced any pending or anticipated legal proceed ings. See Lewis v. Casey , 116 S. Ct. 2174, 2179-80 (1996) (holding that to establ ish a claim of denial of access to the courts, an inmate must show an actual injuryto present or pending litigation); accordTreff v. Galetka , 74 F.3d 191, 194 (10th Cir. 1996). Plaintiff’s allegations that he was denied access to the court are entirely conclusory. Although he identifies certain litigation in his ap pellate brief, he does not identify any lost documents with particularity, establish ho w any missing document relates to the litigation, assert that any action has been dismissed or any filing disallowed as untimely, or claim any specific prejudice to any litigation due to missing-6-

documents. Thus, we agree with the magistrate judg e that plaintiff has failed to establish the existence of a genuine issue of mater ial fact with respect to his right of access to the court claim. The magistrate judge further found that plaintiff f ailed to establish any intent on the part of prison officials to discrimin ate against him based on his race. The Equal Protection Clause of the Fourteenth Amend ment protects inmates from invidious racial discrimination. See Wolff v. McDonnell , 418 U.S. 539, 556 (1974). Plaintiff must show, however that the defe ndants intentionally discriminated against him because of his race. See Copeland v. Machulis , 57 F.3d 476, 480 (6th Cir. 1995). Here, plaintiff’s subjec tive belief that defendants’ actions were discriminatory is insufficient to with stand summary judgment on his equal protection claim. See Aramburu v. The Boeing Co. , 112 F.3d 1398, 1408 n.7 (10th Cir. 1997) (noting that a subjective beli ef in discrimination does not preclude summary judgment on a claim of employment discrimination). Next, the court held that plaintiff failed to alleg e any personal participation by the defendants in any alleged discrimination aga inst plaintiff or in any alleged unconstitutional deprivation of his property. We h ave held that “[i]ndividual liability under § 1983 must be based on personal in volvement in the alleged constitutional violation.” Foote v. Spiegel , 118 F.3d 1416, 1423 (10th Cir. 1997). Here, plaintiff failed to establish that either def endant participated in an act which2 The records in these cases indicate that in all thr ee instances, the court

ordered defendants to submit a special report pursu ant to Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978) (per curiam), which they filed simultaneously with their respective motions for summary judgment. -7- violated his constitutional rights. Moreover, the special report submitted to the district court 2 indicates that the handling of plaintiff’s property was accomplished according to DOC procedures, and plaintiff does notrefute this assertion. To withstand a motion for summary judgment on a cla im of retaliation, an inmate must submit evidence showing that a jury cou ld reasonably find that a motivating factor behind defendants’ actions was re taliation for his prior or current litigation. See Smith , 899 F.2d at 948 n.4, 949. A “causal connection may be demonstrated by evidence of circumstances th at justify an inference of retaliatory motive, such as protected conduct close ly followed by adverse action.” Conner v. Schnuck Markets, Inc. , 121 F.3d 1390, 1395 (10th Cir. 1997) (quotation omitted). Where, as here, a plaintiff h as undertaken a plethora of grievances and lawsuits, proximity is established s imply because any action taken by a prison official could be seen as retaliation f or one of the legal filings. Under these circumstances, proof of proximity is less per suasive than might otherwise be the case. “[I]t is imperative that plaintiff’s pleading be fa ctual and not conclusory. . . . [P]laintiffs must . . . allege s pecific facts showing retaliation-8-

because of the exercise of the prisoner’s constitut ional rights.” Frazier v. DuBois , 922 F.2d 560, 562 n.1 (10th Cir. 1990). In this case, plaintiff sets forth no facts establishing that prison officials wrongfu lly withheld his possessions for retaliatory motives. See Johnson v. Rodriguez , 110 F.3d 299, 310 (5th Cir.) (holding that the relevant showing in retaliation c ases “must be more than the prisoner’s personal belief that he is the victim of retaliation”) (further quotation omitted), cert. denied , 118 S. Ct. 559 (1997). Moreover, plaintiff did n ot refute defendants’ legitimate and nonretaliatory reasons f or the manner in which plaintiff’s property was handled. Therefore, summary judgment for defendants
was proper. Plaintiff also asserts that the district court’s re fusal to allow him to amend his complaint was erroneous. Plaintiff did not see k to amend his complaint, however, until after the magistrate judge had issue d a report and recommendation in this case. Therefore, the district court conclu ded that plaintiff’s amended complaint, which sought to add two additional parti es and additional allegations, was untimely, see Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365-66 (10th Cir. 1993) (holding that untimeliness is sufficient reason to deny amendment), and would prejudice the defense, see Foman v. Davis , 371 U.S. 178, 182 (1962) (undue prejudice to opposing party is sufficient reason to deny request to amend). Moreover, the court held that because the amended c omplaint did not cure the-9-

deficiencies found by the magistrate judge, to allo w amendment would be futile.
See id. (request to amend can be denied as futile). Plaintiff has offered no reason for his delay in se eking amendment. Moreover, upon review of plaintiff’s amended compla int, we determine that it is a reiteration of the claims brought in his original c omplaint, and therefore, the court was correct in its alternative holding, that to all ow plaintiff to file his amended complaint would be futile. On appeal, plaintiff continues to proffer conclusory, accusatory allegations, liberally laced with rebuking statements directed at prison officials and the judiciary involved. He makes no cogent argument, h owever, challenging the findings and conclusions of the magistrate judge. Therefore, upon careful consideration of the briefs of the parties and the relevant record, we conclude that summary judgment was appropriate.

C. No. 97-6119 This case arises out of the same set of facts as th ose underlying the preceding discussion. Here, plaintiff brought a § 1983 suit against defendant Larry Fields, director of the DOC, in his individua l capacity, alleging that he intentionally allowed prison officials unconstituti onally to retain his personal property thereby denying him access to the courts and equal protection of the law.3 The district court’s decision to dismiss this case, a § 1983 action alleging

an unconstitutional deprivation of a typewriter, wa s affirmed by this court on October 2, 1997. See Brown v. Sales , No. 96-6014, 1997 WL 606853 (10th Cir. Oct. 2, 1997) (unpublished order and judgment). -10- As discussed in the previous case, plaintiff conced ed that he received all of his legal materials, except for a few items, on or about September 5, 1995. In his complaint, plaintiff alleged that the delay in tran sporting these materials prevented him from filing a petition for writ of ce rtiorari in the Supreme Court and caused the magistrate judge to recommend a dism issal in another case, Brown v. Sales , No. CIV-95-284-L. 3 Plaintiff also alleges that the magistrate judge ignored the evidence presented supporting his conte ntion that the delay in providing him with his personal property and legal materials after his transfer was motivated by invidious discrimination or retaliatio n. In granting summary judgment, the magistrate judge found that plaintiff received all of his legal materials approximately twenty-three days before his pleading was due in the Supreme Court, affording hi m ample time to file his writ or to request an extension of time. Moreover, as t o plaintiff’s allegations of detriment in Brown v. Sales , the magistrate judge looked to the court’s own records to find that plaintiff filed numerous plead ings between June 1, 1995, the date of his transfer, and December 4, 1995, when ju dgment for the defendants was entered. Contrary to plaintiff’s contention that B rown v. Sales was dismissed-11-

because he failed to file a responsive pleading, th e case was actually dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a cognizable claim. See Brown v. Sales , No. 96-6014, 1997 WL 606853, at **1 (10th Cir. Oc t. 2, 1997) (unpublished order and judgment). As was previously discussed, the establishment of aclaim of denial of access to the courts must include a showing that any pending or contemplated litigation was adversely affected by the actions orinactions of the prison officials.
See Lewis , 116 S. Ct. at 2179-80. Here, plaintiff has made only general and conclusory allegations that the missing legal mater ials prevented him from pursuing any of his legal claims. Consequently, as was correctly determined by the magistrate judge, plaintiff has failed to show that under Lewis he suffered an actual injury due to the delay in receipt of his le gal materials. Moreover, plaintiff brought his claims against defe ndant only in his individual capacity, and, as was true in the case d iscussed above, “[a] claim seeking personal liability in a civil rights suit m ust be predicated on the defendant actor’s personal involvement; there must be an affi rmative link to causally connect the actor with the alleged violation.” Gat es v. Unified Sch. Dist. No.
449 , 996 F.2d 1035, 1042 (10th Cir. 1993). While plai ntiff may be able to establish personal responsibility by showing that d efendant failed to supervise his employees, the plaintiff must allege and prove thatthe supervisor “actually knew-12-

of and acquiesced in the [actor’s] behavior.” Jojo la v. Chavez , 55 F.3d 488, 490 (10th Cir. 1995); see also Snell v. Tunnell , 920 F.2d 673, 700 (10th Cir. 1990) (plaintiff must be able to show that the defendant “expressly or otherwise, authorized, supervised, or participated in conduct which caused the constitutional deprivation”). Here, plaintiff failed to allege any facts which would support a finding that defendant either personally participat ed in any unconstitutional act against plaintiff, or that he had the requisite kno wledge of his supervisees’ alleged participation. Plaintiff cannot establish defendant’s personal responsibility for any constitutional violation simply by asserting defendant’s supervisory capacity. Therefore, defendant was pro perly granted summary judgment on this issue. Finally, although plaintiff again claims that defen dant’s alleged denial of his access to the courts was motivated by invidious discrimination based on race and retaliation for his numerous grievances and law suits, he failed to establish any intent to discriminate, see Copeland , 57 F.3d at 480, or to present any evidence showing that the motivating factor behind defendant’s actions was retaliatory, see Smith , 899 F.2d at 948 n.4, 949. Moreover, defendant pr ovided legitimate and nonretaliatory reasons for the way p laintiff’s possessions were handled, and plaintiff fails to refute these reason s. Therefore, the district court’s-13-

adoption of the magistrate judge’s recommended grant of summary judgment to defendant was correct. In this case, plaintiff once again attempted to fil e an amended complaint after the magistrate judge issued a report and reco mmendation and after plaintiff had submitted objections to the magistrate judge’s findings. Giving deference to plaintiff’s pro se status, the court reviewed the amended complaint. Concluding that plaintiff’s amended complaint was a reiteratio n of the claims in his original complaint, with the addition that plaintiff had at that time been released from incarceration, the court ordered the amended compla int stricken. Upon our review of the amended complaint, we agree with the district court that to have allowed amendment would have been futile. See Foman , 371 U.S. at 182.

D. No. 97-6130 Once again, this case emanates from plaintiff’s cla im that LCCC prison officials unconstitutionally deprived him of his pe rsonal property and legal materials. Plaintiff’s claim that his property was illegally retained by prison officials is not at issue in this case, however. H ere, plaintiff’s only claim is brought against defendant Kathy Waters, Deputy Dire ctor of the DOC, alleging that she retaliated against him by placing him on o ffender grievance restriction.-14-

It appears that between July 20, 1995, and December20, 1995, plaintiff submitted eight grievances regarding his personal p roperty. Upon the filing of each grievance, he was advised that he failed to fo llow the DOC procedures for filing grievances, and was informed as to how he co uld correct the deficiencies. He was also advised that he could not file grievanc es as to matters which were currently being litigated. Ignoring these directio ns, plaintiff wrote two additional letters regarding his property, and subsequently wa s advised that because he had abused the DOC offender grievance process, he was r estricted from filing further grievances. The magistrate judge concluded that plaintiff’s all egations that he was restricted in retaliation for filing grievances wer e conclusory. The court determined that plaintiff had been legitimately res tricted pursuant to DOC policy because he abused the process and, therefore, his c laims were insufficient to defeat defendant’s motion for summary judgment. On appeal, plaintiff asserts, in a conclusory fashi on, that the action of LCCC officials in restricting him “was a pure bona fide act of retaliation.” Appellant’s Opening Br. at 6. He asserts that defe ndant “acted in an improper, immature, and idiotic manner.” Id , He further contends that defendant “would resemble one devoid of all intelligence in front of a jury,” id. at 8, and her actions were “ostensibly bias[ed], obstinate, and seeminglyincompetent,” id.-15-

Aside from these opinions of defendant and her moti vations, plaintiff offers no cognizable challenge to the findings and conclus ions of the magistrate judge. Because plaintiff failed to present any facts which would support a finding that his grievance restrictions were a result of retaliation, we conclude that the court was correct in finding that no material issue of fa ct remained for trial, and summary judgment for defendant was proper. The judgments of the United States District Court f or the Western District of Oklahoma in Nos. 97-6118, 97-6119, and 97-6130 are AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge