                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          June 22, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 W ILLIAM R. HO LT,

          Plaintiff - Appellant,

 v.                                                       No. 05-3260
                                                          (D. Kansas)
 ROBERT W ERHOLTZ, Secretary of                   (D.Ct. No. 05-CV-3204-SAC)
 Corrections; W ILLIAM L.
 CU M M INGS; RA Y RO BERTS;
 SUSAN GIBREAL; DEBBIE
 BR ATTO N; AIM EE H OPKINS;
 M A RK FR EY ; R IC HA RD EN GLISH;
 CORY D. RIDDLE; J. PATRICK
 LA W L ESS; C AR OL G ILLIA M
 GR EEN; JASON P. OLD HA M ; K.L.
 GARM AN; STEVEN C.
 SH ERW OO D ; K A Y McFA RLAND,
 C hief Justice; JO H N , U nknow n
 Justice; J. ST. PETER; (FNU) SHARP,
 Doctor; KIERSTEN CAM P, Nurse
 Practitioner; (FN U) EM ERY, Director
 of Nursing,

          Defendants-Appellants.
                        ____________________________

                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.



      *
          This order and judgment is not binding precedent except under the doctrines of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 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.

       W illiam R. Holt, currently an inmate at the El Dorado Correctional Facility

in El Dorado, Kansas, 1 appeals pro se and in form a pauperis (ifp) from the district

court’s dismissal of his 42 U.S.C. § 1983 complaint. 2 Holt brought his complaint

against various state prison and court officials alleging they denied him his right

of access to the courts by prohibiting him from making copies of pleadings to be

filed in his direct criminal appeal. He also alleged prison officials violated his

Eighth Amendment rights by failing to properly diagnose his shoulder injuries or

provide him corrective surgery. On June 14, 2005, the district court screened the

complaint pursuant to 28 U.S.C. § 1915A and dismissed it under 42 U.S.C. §




       1
         At the time he filed his complaint, Holt was incarcerated at the El Dorado
Correctional Facility. However, on or about June 8, 2005, a few days before the district
court dismissed his complaint, he was released from prison on parole. Holt immediately
violated his parole by failing to report to his parole officer within twenty-four hours of his
release. His parole was revoked and he was returned to the El Dorado Correctional
Facility, where he currently remains until August 2006.
       2
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).

                                             -2-
1997e(c) for failure to state a claim. 3

       A. Right of Access to Court

       In his direct criminal appeal to the Kansas Court of Appeals, Holt filed a

pro se motion to dismiss his appointed counsel and his counsel filed a motion to

withdraw. On January 28, 2005, the Kansas Court of Appeals denied both

motions and granted Holt leave to file a supplemental brief by February 28,

2005. 4 The court further directed that if Holt wished to strike the brief already

submitted by counsel, he should inform the court of this intention and renew his

motion to dismiss counsel by February 28, 2005.

       Thereafter, Holt received notice from the prison that his photocopying

privileges were suspended until he significantly reduced the debt he owed the




       3
        42 U.S.C. § 1997e(c) allows a district court to dismiss sua sponte, without first
requiring the exhaustion of administrative remedies, any action brought with respect to
prison conditions under § 1983 if the action is frivolous, malicious, fails to state a claim
upon which relief may be granted or seeks monetary relief from a defendant who is
immune from such relief.
       4
         This order, along with various other documents, are attached to Holt’s appellate
brief. These documents do not appear in the district court record. Ordinarily, we do not
consider evidence offered for the first time on appeal. See John Hancock Mut. Life Ins.
Co. v. Weisman, 27 F.3d 500, 506 (10th Cir. 1994). However, these documents were
referred to in the complaint. Moreover, Holt has alleged that the post office lost these
documents and when they were found, it sent them to his mother’s address rather than to
him or the district court. It is clear from the record that some of Holt’s documents were
damaged by the post office and later sent to the district court with a postal authority
apology. Because these documents are referred to in his complaint and there is some
evidence supporting Holt’s allegation that they were mailed with his complaint but lost by
the post office, we will consider them.

                                             -3-
prison for making legal copies. 5 He immediately grieved the issue, asserting the

copying restriction impeded his ability to comply with the Kansas Court of

Appeals’ order because Kansas Supreme Court Rule 5.01(a) required a party to

file an original and three copies of all pleadings filed in the Kansas Court of

Appeals. W hen his grievance was denied, Holt attempted to file with the Kansas

Court of Appeals a M otion to Seek Court Order, Request for Transcripts, M otion

for Stay of Appeal, M otion for Reconsideration of Reduction of Appeal Bond,

M otion for Reconsideration of Order Entered and M otion for Order to Remand

and Limiting Questioning. He mailed these motions without providing the

requisite number of copies. In his M otion to Seek Court Order, he explained that

his inability to comply with Kansas Supreme Court Rule 5.01(a) w as due to

restrictions placed on him at the prison.

      On February 8, 2005, the Kansas Court of Appeals returned his motions

without filing them. According to a letter Holt received from a deputy clerk at

the Kansas Court of Appeals, Holt’s motions were not filed because at the time he

filed them, he had court-appointed counsel and “all such concerns should be

directed to [his] counsel.” 6 (Appellant’s Opening Br. at Ex. B-8.) The clerk also



      5
        Although prison regulations allow indigent inmates to incur a debt of up to
$50.00 for legal copies, Holt owed $146.00.
      6
         This reason is consistent with Kansas Supreme Court Rule 5.01(b), which states:
“Parties who are represented by counsel shall only be allowed to file motions on their
own behalf to remove counsel or to file supplemental briefing.”

                                            -4-
stated: “Further, we are unable to file documents that have not been served upon

opposing parties, or that do not have the appropriate number of copies attached

for filing.” (Id.) Holt sought further relief through the prison grievance

procedure but was unsuccessful. He also unsuccessfully sought assistance from

the Kansas Supreme Court, several Kansas Court of Appeals employees, his state

appellate attorneys, and an attorney at Legal Services for Prisoners. Eventually,

the K ansas C ourt of A ppeals placed Holt’s appeal on the Summary Calendar,

meaning Holt’s appeal would be decided without oral argument. 7

      In his federal court complaint, Holt alleged the prison’s restriction on

photocopying, along with the Kansas Supreme Court’s and his state appellate

attorneys’ failure to assist him in filing his motions with the Kansas Court of

Appeals, denied him access to the courts by impeding his ability to file pleadings

in his direct criminal appeal. Holt certainly enjoys the fundamental right of

access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). However, to

state a claim for deprivation of this right, he must demonstrate that an actual

injury hindered his efforts to pursue a non-frivolous legal claim concerning his

conviction and sentence (either in a direct appeal or habeas corpus proceeding) or

the conditions of his confinement in a § 1983 action. Id. at 351-53, 355. He has

failed to do so.




      7
          The record does not reveal the final disposition of Holt’s appeal.

                                              -5-
      Despite the Kansas Court of Appeals’ rejection of his motions, Holt’s direct

appeal proceeded, albeit not pro se. Therefore, his efforts to pursue his direct

appeal were not hindered by the prison’s photocopying restrictions or by the

failure of the Kansas Supreme Court or his state attorneys to assist him.

Additionally, Holt’s failure to provide the requisite number of copies was merely

one of three reasons w hy his motions w ere not filed. The main reason was his

failure to comply with the Court of Appeals’ January 28, 2005 order, i.e., his

failure to file a supplemental brief or renew his motion to dismiss counsel and

inform the court that he wished to proceed pro se. By not complying with the

order, Holt attempted to file motions w hile still represented by counsel in

violation of Kansas Supreme Court Rule 5.01(b). Thus, even assuming Holt has

shown an actual injury, he has not shown that this injury resulted from the

defendants’ actions.

      M oreover, “[a] prisoner’s right of access to the court does not include the

right of free unlimited access to a photocopying machine, particularly when . . .

there are suitable alternatives.” Harrell v. Keohane, 621 F.2d 1059, 1061 (10th

Cir. 1980). “W hen an inmate’s access to the courts is not unduly hampered by the

denial of access to such machinery, he cannot complain.” Johnson v. Parke, 642

F.2d 377, 380 (10th Cir. 1980). Kansas Supreme Court Rule 5.01(a) only requires

that three legible copies of a pleading be filed with the original in the Kansas

Court of Appeals. Therefore, Holt had a reasonable alternative to photocopying

                                         -6-
his motions — he could have produced hand-written copies of his motions.

      B. Eighth Amendment

      Holt alleged in his complaint that he was taking 800 milligrams of

Ibuprofen each day for severe pain in his rotator cup and claimed his condition

requires corrective surgery. To state an Eighth A mendment claim, Holt must

show prison officials, by their acts or omissions, were deliberately indifferent to

his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).

Deliberate indifference has two components. M artinez v. Garden, 430 F.3d 1302,

1304 (10th Cir. 2005). Under the objective component, the alleged deprivation

must be sufficiently serious, that is, the medical need is “one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.”

Id. (quotations omitted). The subjective component requires a prison official to

know of and disregard an excessive risk to the inmate’s health or safety. Id.

      Holt’s allegations fail to state an Eighth Amendment claim. According to

his own allegations, Holt w as prescribed medication for his shoulder pain.

Therefore, prison officials did not disregard Holt’s condition. His assertion that

corrective surgery is required is conclusory. W ithout any medical opinion

evidence, Holt’s personal desire for surgery is insufficient. See Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980) (“[A] mere difference of opinion between the

prison’s medical staff and the inmate as to the diagnosis or treatment which the

                                         -7-
inmate receives does not support a claim of cruel and unusual punishment.”).

       C. Conclusion

       W e conclude Holt’s appeal is frivolous and DISM ISS it. Holt has

accumulated two strikes in this matter, one due to the district court’s dismissal for

failure to state a claim and one due to our dismissal of the appeal as frivolous.

See 28 U.S.C. § 1915(g). 8 W e D ENY his “M otion Seeking Temporary

Restraining Order” because it merely reiterates his denial of access to the court

claim. W e also DENY his “Renewed M otions for Temporary Restraining Order

and Preliminary Injunction and Order Appointing Counsel and Additional Relief”

because they seek the relief requested in his original motion for temporary

restraining order and also improperly attempt to challenge the revocation of his

parole, w hich occurred after the district court dismissed his complaint. Holt is

reminded to continue making partial payments of his appellate filing fee until the




       8
         While the district court dismissed the case pursuant to 42 U.S.C. § 1997e(c) for
failure to state a claim, nothing in § 1915(g) limits the imposition of strikes to dismissals
under 28 U.S.C. § 1915(e)(2). Moreover, because Holt proceeded in forma pauperis in
the district court, the district court could have dismissed the case pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).

                                             -8-
entire balance is paid.



                          Entered by the C ourt:

                          Terrence L. O ’Brien
                          United States Circuit Judge




                           -9-
