                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 21 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TERRY D. THOMPSON,

                Plaintiff-Appellant,

    v.                                                    No. 00-7018
                                                    (D.C. No. 98-CV-336-S)
    DOLORES RAMSEY, D.O.C.,                               (E.D. Okla.)
    Designee, Director; GARY GIBSON,
    D.O.C. O.S.P. Warden; JIMMY
    MARTIN, D.O.C. O.S.P. Unit
    Manager; RON WARD, D.O.C. O.S.P.
    Warden; ROBERT BERRY, D.O.C.
    O.S.P. Case Manager,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the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.
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 Terry D. Thompson appeals the district court’s dismissal of his

civil rights complaint, brought pursuant to 42 U.S.C. § 1983, as frivolous.

Because plaintiff’s Eighth Amendment claim was supported by specific factual

allegations and evidence raising genuine issues of fact, we affirm in part and

reverse in part, and remand the case for further proceedings.

       Plaintiff is incarcerated at the Oklahoma State Penitentiary in McAlester,

Oklahoma, serving a 2,000-year sentence after conviction of eight counts of

sexually assaulting his minor children. Because of the nature of his crime,

plaintiff alleges that he is in constant danger if he is required to share a prison

cell, and he seeks to be removed from the general population and assigned to a

single cell.

       Plaintiff alleges that since August 1997, he has been requesting prison

officials to place him in protective custody. The evidence shows the following:

       (1) On August 25, 1997, plaintiff filed a grievance alleging that on August

1, 1997, he had requested placement in protective custody from prison official

Watson, who informed him that protective custody was full and that he should

have thought about the consequences before he did his crime, but that Watson

eventually helped him with a cell change; that on August 6, he was again required


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to share a cell with a general population prisoner and that his request for

protective custody to prison official Anderson was ignored; and that prison

official Mullin also ignored plaintiff’s August 18, 1997 Request to Staff seeking

protective custody. Plaintiff identified his conviction for a sexual offense as the

reason that he needed protection, but he did not identify any specific threats to his

safety.

      (2) On August 28, 1997, plaintiff refused an order to pack his belongings

and move to a general population unit which he felt was dangerous. Plaintiff

informed the guard that he would take a write-up because he was trying to get

into protective custody. During the investigation of this charge, plaintiff

informed investigator Hall that his life had been threatened.

      (3) On September 2, 1997, plaintiff’s grievance, requesting protective

custody, was forwarded to Unit Manager Mullin, and on September 8, 1997,

plaintiff repeated his request for protective custody. Plaintiff alleges in his sworn

complaint that he informed defendant Berry on September 9, 1997, that his

cellmate was threatening him based on his sex offense. His request for protective

custody was denied by both the Unit Classification Committee and reviewing

authority John East, because plaintiff had not pointed to a specific threat or filed

separatees against any named inmates.




                                          -3-
      (4) On October 2, 1997, plaintiff filed a grievance requesting that prison

officials reconsider their decision to deny him protective custody, attaching

previous grievances and an “Emergency Complaint” to an attorney expressing his

concerns over his safety. This grievance was returned unanswered because he

attached too many pages and failed to attach a request to staff.

      (5) On December 1, 1997, plaintiff filed a grievance in which he alleged

that he had notified Warden Ron Ward on October 24, 1997, that his cellmate was

making a “shank”; that after this complaint was ignored, plaintiff’s cellmate cut

him on the neck and raped him repeatedly; that on November 15, 1997, plaintiff

refused to “lockdown” until his complaints were resolved; that on November 17

he was verbally abused by guards Suter, Brown, and Chumly, and that Suter told

him that if he “did not go to the C-Unit, [Suter] would place [plaintiff] on D/U

[disciplinary unit], in a cell with someone that would certainly hurt [plaintiff].”

R. I, Doc. 21 at Ex. F7. Plaintiff was sent to the disciplinary unit on November

17, and his grievance alleged that on November 21, Suter and other officers

provoked another inmate and then locked him in a cell with plaintiff. Plaintiff

concluded that despite his many requests for protective custody, he had been

raped, assaulted, harassed, and threatened. The Warden’s response stated that an

investigation revealed that plaintiff’s allegations were unfounded and that he was

attempting to manipulate the staff.


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      (6) On December 10, 1997, plaintiff was transferred back to the general

population. On December 16, 1997, plaintiff alleges that he was threatened by his

cellmate, and that he therefore agreed to return to the disciplinary unit.

Defendants allege that plaintiff was transferred to the disciplinary unit on

December 16 because he refused to lockdown.

      (7) In mid-January 1998, plaintiff was required to share a cell with inmate

Coward. According to plaintiff, his cellmate was mentally unstable and was not

receiving proper medication. Plaintiff filed grievances on Coward’s behalf with a

prison doctor and defendants Berry and Martin, requesting that Coward receive

the care he needed and noting Coward’s violent nature. On February 2, Coward

allegedly strangled plaintiff to the point that plaintiff had a “near death”

experience. Plaintiff did not report the incident until February 10, at which time

he was transferred to a different cell.

      (8) On February 17, 1998, plaintiff filed another grievance requesting that

he be placed in protective custody or administrative segregation. He alleged that

his former cellmate had strangled him because other inmates told him to do so

based on plaintiff’s sex offense, and that defendant Berry and another guard had

purposely antagonized Coward. His request was denied first by defendant Martin,

based on the unit’s earlier decision and plaintiff’s continued inability to give

specific names, and later by defendants Gibson and Ramsey.


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      (9) On March 10, 1998, plaintiff filed a grievance complaining about

a prison guard making him share a cell with another inmate after his bad

experience with inmate Coward. Unit Manager Martin reiterated that plaintiff

would have to share a cell and that he should make an effort to get along with his

cellmate.

      (10) On April 6, 1998, plaintiff again refused an order to move to a general

population unit, and he was returned to the disciplinary unit. On April 13, 1998,

plaintiff filed another grievance seeking protective custody or administrative

segregation. Defendant Martin again denied the request, stating that his decision

would not be changed by additional grievances, and defendants Gibson and

Ramsey again agreed, and warned plaintiff that he would be placed on grievance

restriction if he continued to abuse the grievance process.

      (11) On May 11, 1998, plaintiff filed a grievance alleging that one of the

prison guards was provoking the inmates and relating a problem over a tray of

food. Plaintiff asked to have a separatee filed against the guard, which was

denied. This decision was affirmed by the warden, and on June 30, 1998, plaintiff

was placed on grievance restriction by defendant Ramsey.

      (12) At some point, plaintiff received two threatening notes from fellow

inmates which he presented to the district court. There is no evidence, however,

that the notes were shown to prison authorities.


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       On July 8, 1998, plaintiff filed this civil rights action alleging violations of

the Eighth Amendment proscription against cruel and unusual punishment, and

the First Amendment guarantee of religious freedom. Plaintiff requested an

injunction ordering prison officials to place him in a single cell in protective

custody or administrative segregation, five million dollars in compensatory

damages, and five million dollars in punitive damages. On September 18, 1998,

plaintiff filed a supplemental complaint, in which he alleged that his Eighth

Amendment rights were still being violated by forcing him to share a cell, that he

had been exposed to tobacco smoke, and that he had been deprived of his legal

materials. The district court ordered defendants to file a     Martinez report. 1 After

examining the parties’ submissions, the district court dismissed plaintiff’s claims

as frivolous pursuant to 28 U.S.C. § 1915(e). Plaintiff appealed.

       Before we consider the merits of plaintiff’s appeal, we must examine

whether we have jurisdiction over this case. Although the district court issued its

order dismissing plaintiff’s complaint on September 18, 1999, the court did not

enter a separate judgment as required by Federal Rule of Civil Procedure 58.

Further, because the September 1999 order contained detailed legal analysis, it

could not operate as a final judgment that started the time to appeal.      Clough v.

Rush , 959 F.2d 182, 185 (10th Cir. 1992).


1
       See Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978).

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      On October 18, plaintiff filed a motion for reconsideration, which was

denied by minute order on December 13, 1999. This minute order was sufficient

to start the period within which to file an appeal. Because plaintiff’s notice of

appeal was filed on January 28, 2000, which was beyond the thirty-day period

allowed for an appeal, we asked the parties to file briefs regarding our

jurisdiction. Based on their responses, we conclude we have jurisdiction.

      On December 18, 1999, plaintiff mailed a “Motion for Final Order to

Recuse” to the district court, which was received on January 3, 2000. The motion

identified the parties, the September 1999 dismissal of the complaint, and the

December 1999 minute order, and stated that plaintiff intended to appeal these

decisions as soon as the district court entered a final order in the case. This

document then, was the equivalent of a notice of appeal under    Smith v. Barry , 502

U.S. 244, 248-49 (1992), preserving our jurisdiction over this appeal.

      Plaintiff argues that the district court erred in dismissing his Eighth

Amendment claim as frivolous because he presented detailed evidence regarding

specific events and people. The district court found that plaintiff’s allegations

were conclusory and failed to state a claim under the Eighth Amendment.

Although it is not clear whether the district court dismissed this claim pursuant to

§ 1915(e)(2) or pursuant to defendant’s request under Fed. R. Civ. P. 12(b)(6),

our review is the same. We review the ruling    de novo to determine whether “it is


                                          -8-
obvious that plaintiff cannot prevail on the facts he has alleged and it would be

futile to give him an opportunity to amend.”         Curley v. Perry , 246 F.3d 1278,

1281-82 (10th Cir.) (comparing § 1915(e)(2) standard with that of Rule 12(b)(6)),

cert. denied , 2001 WL 884152 (U.S. Oct. 1, 2001) (No. 01-5423) (quotation

omitted). We agree with plaintiff that his allegations are sufficiently specific, and

assuming they are true, they suffice to state a claim under the Eighth Amendment.

Our analysis does not end here, however.

       After submitting the Martinez report, defendants filed a motion to dismiss,

or in the alternative for summary judgment, based on the materials submitted with

the report. Plaintiff responded with a motion for summary judgment, to which he

attached evidentiary material in support. In dismissing the action, the district

court relied heavily on the submitted material. Because the district court

considered evidentiary materials outside the pleadings, the court should have

treated the motion as one for summary judgment, as directed by Federal Rule of

Civil Procedure 12(b), which states, “[i]f, on a motion . . . to dismiss for failure

of the pleading to state a claim upon which relief can be granted, matters outside

the pleading are presented to and not excluded by the court, the motion shall be

treated as one for summary judgment . . . .”         See Miller v. Glanz , 948 F.2d 1562,

1565 (10th Cir. 1991).




                                               -9-
       Ordinarily, the district court’s failure to convert the motion and to give

plaintiff notice and an opportunity to be heard would require reversal, unless the

dismissal could be justified under Fed. R. Civ. P. 12(b)(6).     See Jackson v.

Integra Inc. , 952 F.2d 1260, 1261 (10th Cir. 1991). In this case, however,

plaintiff had notice that defendants were seeking summary judgment, and availed

himself of the opportunity to respond with his own motion and supporting

materials. Therefore, exercising our plenary power, we will treat the district

court’s order as one granting summary judgment in favor of defendants.          See

Pringle v. United States , 208 F.3d 1220, 1223 (10th Cir. 2000).

       We review the grant of summary judgment         de novo . McBride v. Deer ,

240 F.3d 1287, 1289 (10th Cir. 2001). Summary judgment is appropriate “if 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).

       An Eighth Amendment claim for failure to protect is comprised of two

elements. First, an inmate “must show that he is incarcerated under conditions

posing a substantial risk of serious harm.”      Farmer v. Brennan , 511 U.S. 825, 834

(1994). Second, the inmate must establish that the prison official has

a “sufficiently culpable state of mind,” i.e., that he or she is deliberately


                                              -10-
indifferent to the inmate’s safety.         Id. (quotation omitted). The prison official’s

state of mind is measured by a subjective, rather than an objective, standard.         Id.

at 837. That is, the official must “both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.”        Id.

       Viewing the evidence in plaintiff’s favor, we conclude that he has raised

genuine issues of material fact regarding defendants’ responses to his requests for

protection. The evidence raises the issue of whether defendants were aware of a

substantial risk to plaintiff which they disregarded, in light of his convictions for

child sexual assault, his specific complaints about particular cellmates, and the

alleged comments made to plaintiff by prison staff. On this basis, summary

judgment in favor of defendants on plaintiff’s Eighth Amendment claim is not

appropriate. For the same reasons, plaintiff’s request for an injunction must be

reexamined. Because the propriety of an injunction should be determined in the

first instance by the district court, we deny his motion to this court for an

injunction.

       Plaintiff also argues that the district court erred in dismissing his

First Amendment claim that the prison has infringed on his religion by requiring

him to share a cell with inmates who desire homosexual contact with him. The

district court dismissed plaintiff’s claim on the ground that the Religious Freedom


                                                 -11-
Restoration Act, 42 U.S.C. § 2000bb (RFRA) has been declared unconstitutional.

See City of Boerne v. Flores , 521 U.S. 507, 536 (1997). Although plaintiff is

correct in arguing that his complaint also raised a direct First Amendment claim,

the district court’s error in not addressing this claim was harmless, as plaintiff has

failed to state a claim under the First Amendment.

       Plaintiff’s allegations do not demonstrate a connection between the

requirement that he share a cell and homosexual contact. In fact, his allegations

of a single experience despite his numerous cellmates over the years undermines

his claim. Further, plaintiff has not alleged facts which demonstrate that the

double celling requirement is unreasonable.       See O’Lone v. Estate of Shabazz   , 482

U.S. 342, 348-53 (1987) (setting out reasonableness standard for free exercise

challenges by prisoners and applying factors).

       Finally, plaintiff argues that his motion for the district court to recuse itself

should have been granted. We review the denial of a motion to recuse only for an

abuse of discretion.   United States v. Burger , 964 F.2d 1065, 1070 (10th Cir.

1992). The only grounds upon which plaintiff relies to show bias are that the

district court erroneously ruled against him and did not properly docket his

recusal motion. Adverse rulings alone are insufficient to show bias.       See Willner

v. Univ. of Kan. , 848 F.2d 1023, 1028 (10th Cir. 1988). The district court did not

abuse its discretion in denying plaintiff’s recusal motion.


                                           -12-
      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED in part, REVERSED in part, and remanded for further

proceedings.


                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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