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

### MAR 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DERRICK R. PARKHURST, DONALD GEE and PATRICK JOHN MCATEE, Plaintiffs - Appellants, v. JUDITH UPHOFF, in her official capacity as Director of State Penitentiary Wyoming Department of Corrections; DUANE SHILLINGER, in his official capacity as Warden of State Penitentiary Wyoming Department of Corrections; RONALD G. RUETTGERS, in his official capacity as Maximum Security Unit Manager, State Penitentiary Wyoming Department of Corrections; CAPTAIN STAN JAMES, in his official capacity as Security Manager, State Penitentiary Wyoming Department of Corrections; DAWNA ERICKSON, in her official capacity as Education Department Director, State Penitentiary Wyoming Department of Corrections; CANDACE HAWK, in her official capacity as Education Department employee, State Penitentiary Wyoming Department of Corrections; JERRY STEELE, in his official capacity as Medium Security No. 95-8003 (D.C. No. 93-CV-115) (District of Wyoming)*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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. -2- Unit Manager, State Penitentiary Wyoming Department of Corrections; BILL HETTGAR, in his official capacity as Minimum Security Unit Manager, State Penitentiary Wyoming Department of Corrections; GARY STARBUCK, in his official capacity as Honor Farm Superintendent, Wyoming Department of Corrections; JACK J. SEXTON, in his official capacity as Honor Conservation Camp Superintendent, Wyoming Department of Corrections, Defendants - Appellees.

ORDER AND JUDGMENT *

Before ANDERSON , LUCERO and MURPHY , Circuit Judges.

Prisoners bringing 42 U.S.C. § 1983 claims must exh aust available administrative remedies, pursuant to 42 U.S.C. § 19 97e. We are asked to decide whether § 1997e requires prisoners to exhaust those remedies with “good faith.” The district court held that § 1997e requires a goo d faith effort to resolve-3-

grievances. The district court looked to the statu te’s purpose as expressed in the legislative history, which was to reduce prisoner c ases and facilitate improved relations between prisoners and prison officials. Finding that plaintiffs had not “made a good faith effort to resolve their dispute in the grievance process,” the district court dismissed their § 1983 suit with pre judice. We affirm the dismissal on other grounds, but reverse the “with prejudice” part of the dismissal. Plaintiffs’ complaint alleges inadequate access to court. Specifically, they complain of denial of access to an adequate law lib rary, adequate research materials, and trained legal assistants. Raising e ach of these complaints, plaintiffs perfunctorily filed administrative griev ances and appeals, thereby technically exhausting all available administrative remedies. On appeal, plaintiffs protest the district court’s requirement of good faith, which, as they put it, requires exhaustion “with a smile.” We do not decide whether § 1997e requires a good faith effort on pla intiffs’ part because plaintiffs lack standing to bring an access-to-court claim. A recent Supreme Court case, Lewis v. Casey , 116 S. Ct. 2174, 2180 (1996), holds that to have standing to raise an acc ess-to-court violation, a prisoner must demonstrate actual injury. A prisoner “cannotestablish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is sub-par in some theoretical sense.” Id. Rather, the prisoner “must go-4-

one step further and demonstrate that the alleged s hortcomings in the library or legal assistance program hindered his efforts to pu rsue a legal claim.” Id. ; see also Treff v. Galetka , 74 F.3d 191, 194 (10th Cir. 1996) (requiring pris oner to “show that any denial or delay of access to the cou rt prejudiced him in pursuing litigation”). Plaintiffs’ only allegation of injury appears in th eir amended complaint: “The violations of plaintiffs’ rights to access to the courts and to petition for redress of grievances, detailed above [regarding de layed access to legal materials and disastrous advice from legal assistants], has [ sic] prejudiced numerous of the plaintiffs--both named plaintiffs and unnamed membe rs of the plaintiff class--in various court actions, both criminal and civil.” R . 82 at 17. This sweeping allegation of injury is too conclusory to demonstrate that the denial of legal materials has actually hindered plaintiffs’ efforts to pursue any nonfrivolous claim. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (although pr o se pleadings are liberally construed, conclusory al legations will not suffice). Because plaintiffs have not alleged sufficient inju ry from the allegedly inadequate access to court, they lack standing to bring an acc ess-to-court claim, and we conclude their complaint was properly dismissed. However, because we base dismissal on lack of stand ing rather than failure to exhaust remedies, the dismissal should be withou t prejudice. See Korvettes,-5-

Inc. v. Brous , 617 F.2d 1021, 1024 (3d Cir. 1980) (a dismissal o n jurisdictional grounds is not a dismissal on the merits and shouldordinarily be without prejudice). We AFFIRM the dismissal, but REVERSE insofar as the dismissal was “with prejudice.” We REMAND with instructions to dismiss without prejudice. Appellee’s motion to strike the appendi x is DENIED as moot. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge