FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

APR6 2005 

PATRICK FISHER 

Clerk 

MARVIN B. DAVIS, JR., 

Plaintiff-Appellant, 

V. 

LOUIS BRUCE, Warden, Hutchinson 

Correctional Facility; PAUL WILSON, 

CCI, Hutchinson Correctional Facility; 

KATHRYN FIELDS, East Unit 

Librarian, Hutchinson Correctional 

Facility; A. (NMI) PEREZ, Unit Team 

Manager, Hutchinson Correctional 

Facility; KEITH ANDERSON, CCI, 

Hutchinson Correctional Facility; 

CHARLES SIMMONS, Secretary of 

Corrections; B. BEACH, Central Unit 

Librarian, Hutchinson Correctional 

Facility; HUTCHINSON 

CORRECTIONAL FACILITY; 

JOHNNY DA VIS, Master Sergeant; 

WILLIAM E. CUMMINGS, Inmate 

and Staff Relations, 

Defendants-Appellees. 

No. 04-3057 

(D.C. No. 00-CV-3051-CM) 

(D. Kan.) 

ORDER AND JUDGMENT* 

• This order and judgment is not binding precedent, except under the 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 . 

Appellate Case: 04-3057 Document: 010110533914 Date Filed: 04/06/2005 Page: 1
Before LUCERO, McKAY, and PORFILIO, Circuit Judges. 

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.l(G). The case is 

therefore ordered submitted without oral argument. 

Marvin B. Davis, Jr., an inmate proceeding pro se, appeals the district 

court's grant of judgment to defendants on his 42 U.S.C. § 1983 claims alleging 

denial of access to the courts and retaliation for exercising his right to petition the 

courts. We affirm in part and reverse and remand in part. 

I 

At the times relevant to this action, Mr. Davis was an inmate at the 

Hutchinson Correctional Facility (HCF). In late 1999, Mr. Davis wished to seek 

review of his criminal conviction from the Supreme Court of the United States. 

Because he was unable to find an example of a petition for a writ of certiorari in 

HCF's law library or obtain one from legal services, Mr. Davis drafted a motion 

for an extension of time to file his petition. The mailing of his motion was 

apparently delayed, as it was postmarked three days after he submitted it to the 

prison's mail system, and the Supreme Court refused it as being untimely. 

Mr. Davis then filed this § 1983 action complaining about the adequacy of 

HCF's law library and certain actions of prison officials that allegedly caused him 

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to miss his filing deadline. He requested injunctive relief to improve the law 

library facilities at HCF, appointment of counsel for his legal matters, and 

damages. During the litigation, the district court joined two defendants who 

allegedly retaliated against Mr. Davis because he filed this action. 

On March 24, 2003, the district court granted judgment under Federal Rule 

of Civil Procedure 12(b)(6) to defendants HCF, Louis Bruce, Paul Wilson, A. 

Perez, and Keith Anderson (the 2003 Order) on the ground that defendants were 

immune from suit by virtue of the Eleventh Amendment and the doctrine of 

qualified immunity. The 2003 Order, however, did not explicitly address the 

claims against another five defendants (Kathryn Fields, B. Beach, Charles 

Simmons, William Cummings, and Johnny Davis). In October 2004, this court 

issued an order questioning whether there was an appeal able final judgment. On 

January 13, 2005, the district court granted judgment to the remaining defendants 

for the same reasons as articulated in the 2003 Order, and it dismissed the action 

in its entirety (the 2005 Order). 

II 

Eleventh Amendment Immunity 

"We review de novo the district court's decision to dismiss this case on 

Eleventh Amendment grounds and for failure to state a claim." Harris v. Owens, 

264 F.3d 1282, 1287 (10th Cir. 2001). 

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First, the district court held that HCF was immune to suit under the 

Eleventh Amendment and dismissed all claims against it. This determination was 

correct, as a state or a state agency is not a "person" subject to suit under § 1983 . 

See Will v. Mich. Dep 't of State Police, 491 U.S. 58, 71 (1989). 

The district court also applied the Eleventh Amendment to bar all claims 

against the individual defendants in their official capacities. Mr. Davis accurately 

argues on appeal that the Eleventh Amendment does not prevent suits against 

official-capacity defendants for injunctive relief. See id. at 71 n. l O ( citing 

Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985), and Ex Parle Young, 209 

U.S. 123, 159-60 (1908)). The district court, however, correctly found that 

Mr. Davis's requests for injunctive relief were moot in light of his transfer away 

from HCF. See McA/pine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) 

(stating that release from prison generally moots claims for injunctive relief); 

Love v. Summit County , 776 F.2d 908, 910 n.4 (10th Cir. 1985) (indicating that 

the general rule applies in the case of a transfer between prisons). Consequently, 

the only relief available to Mr. Davis with regard to these claims would be money 

damages, which the Eleventh Amendment bars him from seeking from defendants 

in their official capacities. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991). 

For these reasons, we affirm the district court's grant of judgment to HCF 

and to all individual defendants in their official capacities. 

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Qualified Immunity 

The district court held that defendants, in their individual capacities, were 

entitled to qualified immunity because Mr. Davis had failed to show that he was 

injured by the alleged inadequacies in the law library. Mr. Davis argues that the 

district court impermissibly resolved factual disputes in making its ruling. Like 

the Eleventh Amendment issues, we review de novo the district court's ruling on 

a Rule 12(b)(6) motion based on qualified immunity. Peterson v. Jensen, 371 

F.3d 1199, 1202 (10th Cir. 2004). 

Our review does not indicate that the district court impermissibly resolved 

factual disputes or assumed facts not in favor of Mr. Davis, or that it relied on 

materials outside of the pleadings. 1 The undisputed facts, viewed in the light 

most favorable to Mr. Davis, do not indicate that the Supreme Court's dismissal 

of Mr. Davis's motion resulted from the inadequacy of HCF's law library or legal 

resources or any actions or inactions of the defendants. Thus, we affirm the 

district court's grant of judgment to Mr. Bruce, Mr. Wilson, Mr. Anderson, 

Mr. Perez, Ms. Fields, Ms. Beach, and Mr. Simmons on all claims against them in 

their individual capacities. 

In any event, there would be no error even if the district court effectively 

converted the Rule 12(b )( 6) motion to a motion for summary judgment, as 

Mr. Davis was given the opportunity to submit his own additional materials, 

which he did. R. Docs. 104, 105 & Attachs. 

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Retaliation Claims 

Mr. Davis also complains that the district court did not rule on his claims of 

retaliation for exercising his constitutional right of access to the courts. By order 

dated June 28, 2001, the district court allowed Mr. Davis to serve William 

Cummings and Johnny Davis as defendants in this action, based on Mr. Davis's 

assertions that they had retaliated against him for petitioning the courts. R. Doc. 

64 at 3-4 (order allowing service); see R. Doc. 62 at 16-19 (Mr. Davis's 

allegations). 

Inmates have a constitutional right to access the courts. Bounds v. Smith, 

430 U.S. 817, 821 ( 1977). "Prison officials may not retaliate against or harass an 

inmate because of the inmate's exercise of his right of access to the courts." 

Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). "This principle applies 

even where the action taken in retaliation would be otherwise permissible." Id. at 

948. 

The 2005 Order grants judgment to Ms. Fields, Mr. Simmons, Ms. Beach, 

Mr. Cummings, and Master Sergeant Davis "for the same reasons that the court 

granted Bruce, Wilson, Anderson, and Perez's motion to dismiss on March 24, 

2003." 2005 Order at 5. Our review of the record, however, indicates that the 

2003 Order addresses only Mr. Davis's claims of denial of access to the courts; it 

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does not discuss his claims of retaliation. 2 Also, the 2003 Order grants judgment 

to the defendants in their individual capacities based on qualified immunity, a 

circumstances-specific inquiry. See Snell v. Tunnell, 920 F .2d 673, 696 (10th Cir. 

1990) (noting that qualified immunity is "fact-specific"). The qualified immunity 

analysis of the 2003 Order easily applies to Ms. Fields, Mr. Simmons, and 

Ms. Beach, as the allegations against them are the same denial of access 

allegations the district court addressed in the 2003 Order. It does not so easily 

apply to the retaliation allegations against Master Sergeant Davis and 

Mr. Cummings, which are based on different facts and legal theories. 

On the record before us, then, it appears that the district court has not yet 

considered Mr. Davis's claims of retaliation. Consequently, without taking a 

position on the merits of these retaliation claims, we remand Mr. Davis's claims 

for damages against Mr. Cummings and Master Sergeant Davis in their individual 

capacities to the district court for its consideration in the first instance. 

2 A claim of retaliation technically is itself a claim alleging denial of the 

right of access to the courts, because retaliation hampers an inmate's ability to 

exercise his right of access. See Smith, 899 F.2d at 947-48 (citing precedent from 

other circuit courts). For ease of reference, however, here we shall refer to the 

"retaliation" claims as distinct from the "denial of access" claims. 

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Remaining Issues 

We have reviewed all of Mr. Davis's remaining appellate issues. 3 We have 

found no abuses of discretion or other reversible error with regard to any of these 

issues, and the district court's decisions are affirmed. 

III 

Mr. Davis's motion to proceed in forma pauperis is GRANTED. He is 

reminded that he must continue making partial payments until the entire appellate 

filing fee has been paid. All other pending motions are DENIED. The judgment 

of the district court is AFFIRMED IN PART and REVERSED and REMANDED 

IN PART for further proceedings. The mandate shall issue forthwith. 

Entered for the Court 

John C. Porfilio 

Circuit Judge 

3 These claims challenge: the district court's denial of Mr. Davis's motions 

to supplement, his request for injunctive relief, and his request for default 

judgment; its grant of numerous extensions for defendants to file a Martinez 

report; its failure to allow Mr. Davis to correct any deficiencies in his pleadings 

before ruling against him; and its failure to certify this litigation as a class action. 

A purported twelfth issue, that defendants retaliated against Mr. Davis by 

"switch[ing] out affidavits, thus stealing them in violation of access to the 

courts," Aplt Br. at 10, is not further explained on appeal nor shown to have been 

presented in the district court. Thus, it is waived. See United States v. Hardwell, 

80 F.3d 1471, 1492 (10th Cir. 1996) (holding that argument is waived when 

appellant fails to make an argument or to cite any authority in support of a claim); 

In re Walker, 959 F.2d 894, 896 (10th Cir. 1992) (holding that this court generally 

will not consider an issue that was not before the trial court). 

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