Gee v. Shillinger, 10th Cir. (1998)
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
JAN 27 1998
PATRICK FISHER
DONALD GEE,
Plaintiff-Appellant,
v.
DUANE SHILLINGER, Warden of
the Wyoming State Penitentiary;
JAMES FERGUSON,
No. 96-8124
(D.C. No. 90-CV-319-B)
(D. Wyo.)
Defendants-Appellees.
DONALD GEE,
Plaintiff-Appellant,
v.
WYOMING DEPARTMENT OF
CORRECTIONS STATE
PENITENTIARY MAXIMUM
SECURITY UNIT MANAGER, in
his official capacity, aka RONALD
G. RUETTGERS, individually, and
WYOMING DEPARTMENT OF
CORRECTIONS STATE
PENITENTIARY SECURITY
MANAGER, in his official capacity
aka CAPTAIN STAN JAMES,
individually,
Defendants-Appellees.
No. 97-8033
(D.C. No. 95-CV-143)
(D. Wyo.)
Clerk
ORDER AND JUDGMENT *
Before ANDERSON, MCKAY, and LUCERO, Circuit Judges.
Appellant is an inmate of the State of Wyoming appearing pro se and in
forma pauperis. 1 In No. 96-8124, he appeals from the district courts order
granting summary judgment to defendants. In No. 97-8033, he appeals from
the district courts order dismissing his complaint as frivolous under 28 U.S.C.
1915(d). Both cases involve actions brought under 42 U.S.C. 1983 in which
Gee claims that his right of access to the courts was violated because he was not
provided adequate access to a prison law library. In both cases, the district court
adopted the magistrate judges finding that Gees complaint was frivolous or
failed to state a claim because the denial of access he alleged was not related to
the preparation of an initial pleading. In No. 96-8124, the district court also
This order and judgment is not binding precedent, except under the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.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
1
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adopted the magistrate judges recommendation that, even if Gee had stated
a claim, he failed to show any prejudice resulting from the alleged lack of access
to a prison law library, and his claim therefore could not withstand summary
judgment.
In habeas and civil rights cases challenging conditions of confinement, this
circuit has long interpreted Supreme Court precedent to limit a prisoners right
of access to the courts to legal assistance in the preparation of initial pleadings.
See, e.g., Carper v. Deland, 54 F.3d 613, 616-17 (10th Cir. 1995) (citing Bounds
v. Smith, 430 U.S. 817 (1977), and Wolff v. McDonnell, 418 U.S. 539 (1974));
Bee v. Utah State Prison, 823 F.2d 397, 398 (10th Cir. 1987) (same); Nordgren v.
Milliken, 762 F.2d 851, 854-55 (10th Cir. 1985) (same). The Supreme Courts
recent opinion in Lewis v. Casey confirms our interpretation of the law on this
point. 116 S. Ct. 2174, 2179-81 (1996). Gees argument that a prisoners right
of access to the courts is more extensive under Bounds v. Smith than under Lewis
v. Casey is meritless. His contention that Lewis v. Casey created a new rule
that should not be applied to him is frivolous. Thus, under Supreme Court and
Tenth Circuit precedent, Gee cannot show, in No. 96-8124, the existence of
prejudice as a result of allegedly inadequate access to legal materials because
he was not preparing an initial pleading. Contrary to Gees contention, the
district court did not contravene our mandate in the previous appeal in district
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court No. 90-CV-319-B. See Gee v. Gamble, No. 94-8015, 1994 WL 582119
(10th Cir. Oct. 21, 1994) (holding defendants qualified immunity defense based
on hypertechnical challenge to plaintiffs syntax failed in face of plaintiffs clear
intent to allege lack of access to either of two prison law libraries).
Because Gees argument in both of these appeals is meritless, these two
appeals are frivolous under 28 U.S.C. 1915(e)(2)(B)(i) for purposes of counting
prior occasions under 28 U.S.C. 1915(g). In addition, Gee has previously
brought one other frivolous appeal before this court. See Cavender v. Uphoff,
No. 96-8067, 1997 WL 602418, at **2 n.2 (10th Cir. Sept. 26, 1997). Therefore,
from this point forward, Gee will be subject to 1915(g) filing restrictions.
We direct the clerk of this court not to accept any further appeals of judgments
in civil actions or proceedings or any extraordinary writs in noncriminal matters,
other than habeas, from Gee unless he pays the filing fees established by our
rules. See In re Phillips, No. 97-646, 1998 WL 3362, at *1 (10th Cir. Jan. 6,
1998) (holding 1915 filing fees do not apply to petitions for writs of
mandamus seeking to compel district courts to hear and decide actions brought
solely under 28 U.S.C. 2241, 2254 and 2255"). This directive does not apply
to appeals or petitions in which Gee claims that he is under imminent danger
of serious physical injury. See Schlicher v. Thomas, 111 F.3d 777, 781
(10th Cir. 1997).
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We remind appellant that he remains obligated to make monthly payments
toward the full filing fee for these appeals when he has or receives any credit
to his account.
These appeals are DISMISSED. The mandate shall issue forthwith.
Gees future filings are RESTRICTED as set forth above.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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