                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAY 19 1999
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 MICHAEL M. FLANERY,
             Plaintiff - Appellant,                     No. 98-3235
 v.                                               (D.C. No. 97-CV-3154)
 DANIELLE WAGNER, individually                           (D. Kan.)
 and in her official capacity as
 activities specialist,


             Defendant - Appellee.


                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and the 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.

      Plaintiff-Appellant Michael M. Flanery, appearing pro se, appeals the



      *
       This order and judgment is not binding precedent, except under the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.
district court’s entry of summary judgment in favor of Defendant-Appellee

Danielle Wagner. Plaintiff initiated this action pursuant to 42 U.S.C. § 1983,

alleging that Defendant and other prison officials violated his civil rights by

discriminating against him on the basis of race, displaying deliberate indifference

to his safety, and promoting a “[r]iotous” atmosphere between black and white

inmates. R, Doc. 1 at 2. His claims seem to stem primarily from his allegation

that Defendant started or spread a rumor among prison inmates that Plaintiff was

a white supremacist and that he had asked for a swastika to use in his religious

observances. Plaintiff claimed that by making this alleged statement Defendant

violated prison rules and regulations and thereby violated his due process rights.

Plaintiff further asserted that, as a result of Defendant’s alleged statement, his life

is in danger, he has been subjected to threats and questioning by black inmates,

and he has suffered adverse psychological effects. Plaintiff sought injunctive and

declaratory relief as well as compensatory and punitive damages. In addition to

his complaint, Plaintiff submitted three motions for appointment of counsel to the

district court. The magistrate judge denied these motions in an Order dated

January 28, 1998.

      In an Order dated July 31, 1997, the district court granted Plaintiff leave to

proceed in forma pauperis and dismissed all named defendants except for

Defendant Wagner. Additionally, the court ordered prison officials at the Lansing


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Correctional Facility to undertake an investigation of the complaint and submit a

written report regarding the matters alleged in Plaintiff’s complaint pursuant to

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Defendant subsequently

submitted an answer to Plaintiff’s complaint along with a Martinez report. In

response, Plaintiff submitted a pleading entitled “Suggestions in Opposition to

Defendant[’]s Answer,” R., Doc. 20, in which he addressed the affirmative

defenses asserted by Defendant. Defendant then filed a motion for summary

judgment. Plaintiff submitted a response to the summary judgment motion which

was accompanied by statements from various inmates with knowledge about his

allegations.

      The district court granted Defendant’s motion for summary judgment on

August 11, 1998. According to the court, Plaintiff’s claim for money damages

was precluded by a provision of the Prison Litigation Reform Act of 1995, which

states: “No Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional injury suffered while

in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).

The court also held that Plaintiff was not entitled to declaratory or injunctive

relief because he presented no evidence that he was likely to suffer future injury

as a result of any rumors started or spread by Defendant. Plaintiff timely filed a

notice of appeal and the district court granted him leave to proceed on appeal in


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forma pauperis.

      On appeal, Plaintiff contends that the district court failed to apply the law

and dismissed his complaint on improper reasoning. He also reiterates his claims

that Defendant violated his right to due process by acting in deliberate

indifference to his safety.

      We review the district court's grant of summary judgment de novo, applying

the same legal standard used by the district court. See Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence and

the reasonable inferences therefrom in the light most favorable to the nonmoving

party. See Byers, 150 F.3d at 1274.

      Due to his pro se status, we have construed Plaintiff’s complaint liberally.

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). This action is subject to the

Prison Litigation Reform Act because Plaintiff filed his complaint after its

effective date. See Craig v. Eberly, 164 F.3d 490, 494 (10th Cir. 1998) (stating

that section 1997e(e) applies to cases commenced after its enactment). Section

1997e(e) of the PLRA requires plaintiffs to make “a prior showing of physical


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injury” to maintain a civil action for any mental or emotional injury suffered

while in custody. 42 U.S.C. § 1997e(e). Because Plaintiff has not shown that he

suffered any physical injury as a result of Defendant’s alleged conduct, the

district court properly entered summary judgment on his claim for compensatory

damages. Cf. Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 807 (10th

Cir. 1999) (stating that suits seeking damages for mental and emotional distress

“‘cannot stand unless the plaintiff has suffered a physical injury in addition to

mental or emotional harms’” (quoting Zehner v. Trigg, 133 F.3d 459, 461 (7th

Cir. 1997)).

      Although Plaintiff also sought punitive damages against Defendant, and

although claims for such damages are not necessarily barred by section 1997e(e),

see Perkins, 165 F.3d at 808 n.6, punitive damages are available under 42 U.S.C.

§ 1983 only for conduct which is “shown to be motivated by evil motive or

intent[] or when it involves reckless or callous indifference to the federally

protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Plaintiff has

made no showing that Defendant’s alleged conduct rose to that level in this case.

Accordingly, summary judgment was proper in this respect as well.

      Additionally, we agree with the district court that Plaintiff is not entitled to

declaratory or injunctive relief. Plaintiff presented no evidence that Defendant

initiated any rumor. In fact, the statements of Plaintiff’s fellow inmates on which


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he relies suggest that another inmate may have initiated the rumor. See R., Doc.

29, 12/10/97 Letter from Frank Bolin to Michael Flanery at 1; 4/26/98 Affidavit

of Ricky F. Gregg at 1-2. Further, although the evidence suggests that Defendant

may have confirmed that she had heard a rumor about Plaintiff in response to an

inquiry by an inmate, see R., Doc. 32 at 2 n.1, there is nothing in the record to

suggest that she told anyone else about the rumors or otherwise spread the rumors

among the inmate population. Because Plaintiff failed to present any evidence

supporting his claims, he has not established that Defendant engaged in any

conduct for which declaratory or injunctive relief would be available.

       If Plaintiff had succeeded in demonstrating that Defendant engaged in

conduct for which declaratory or injunctive relief were appropriate, he still would

be required to demonstrate the existence of a “‘real and immediate threat that he

would again’ suffer similar injury in the [relatively near] future.” Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995). However, in light of our

conclusion that declaratory and injunctive relief are inappropriate in this case, we

need not reach the issue of whether Plaintiff has sufficiently demonstrated the

existence of a threat of future injury. 1


       1
        In addition, we need not address the thorny issue of whether allegations
that a defendant spread rumors that a prisoner is a racist would, standing alone, be
sufficient to prove the likelihood of future injury required to state a claim for
declaratory or injunctive relief. In this case, Plaintiff likely would not be entitled
to such relief in any event due to his evident success in convincing his fellow

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      The decision of the United States District Court for the District of Kansas

is, therefore, AFFIRMED.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




inmates that he is not a white supremacist. See R., Doc. 29, 2/2/97 Statement by
Frank Bolin at 2; 12/10/97 Letter from Frank Bolin to Michael Flanery at 1.

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