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

                                                                         AUG 17 2001
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                   PATRICK FISHER
                                                                             Clerk


    WESLEY I. PURKEY,

                Plaintiff-Appellant,

    v.                                                 No. 00-3218
                                                  (D.C. No. 99-CV-3356)
    LEROY GREEN, Sheriff of                              (D. Kan.)
    Wyandotte County, Kansas;
    J.B. HOPKINS, Administrator of
    Wyandotte County Jail; JONI
    MUMMA, Program Director of
    Wyandotte County Jail;
    D.R. HERRING, Administrative
    Capacity of Wyandotte County Jail;
    PATTY JONES, Administrative
    Capacity of Wyandotte County Jail ;
    JOHN & JANE DOE, Employees of
    Wyandotte County Jail; MICHAEL
    DAILY, Wyandotte County Jail;
    ADRIAN BARLOW, Wyandotte
    County Jail; CARLA HARRIS;
    CHARLES DUNLAY; (FNU)
    GRIFFIN; MICHELE SESE,

                Defendants-Appellees.


                            ORDER AND JUDGMENT          *




*
      This order and judgment is not binding precedent, except under the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.
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



       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.

       Plaintiff-appellant Wesley I. Purkey, appearing pro se and in forma

pauperis, appeals from the district court’s dismissal of his civil rights complaints   1



brought under 42 U.S.C. § 1983. On the same day the district court granted

plaintiff’s motion to proceed    in forma pauperis under 28 U.S.C. § 1915(a), the

court dismissed plaintiff’s complaint sua sponte, apparently pursuant to either

§ 1915(e)(2)(B)(ii) or 28 U.S.C.§ 1915A(b)(1) (screening procedures for civil

rights action in which prisoner seeks redress from governmental entity or its

officers or employees). In dismissing the cause of action, the court held that

plaintiff had failed to state a claim upon which relief may be granted. R. Doc.9

at 7. Our jurisdiction arises under 28 U.S.C. § 1291.

       Mr. Purkey raises fifteen issues in a distended brief that is difficult to

follow. Mindful of our obligation to construe his pleadings liberally, we have


1
      Plaintiff filed three complaints, with the second two supplementing the first
complaint. See R. Doc. 1, 4, 5. The first was filed November 9, 1999, the second
on December 22, 1999, and the third on January 24, 2000.

                                             -2-
regrouped the claims into (A) two claims alleging denial of access to courts, (B)

three claims alleging deliberate indifference to serious medical needs in violation

of the Eighth Amendment, (C) an Eighth Amendment excessive force claim, (D)

an Eighth Amendment inciting to violence claim , (E) a claim for unconstitutional

retaliation by segregation, (F) a claim for retaliation for exercise of First

Amendment rights, and (G) a claim that the court erred in requiring payment of

partial filing fees.

       Because under our standard of review, we must accept Mr. Purkey’s well-

pleaded facts as true, we conclude that the district court prematurely dismissed

certain of plaintiff’s claims. We therefore remand two of Mr. Purkey’s claims

that prison officials were deliberately indifferent to serious medical needs; his

Eighth Amendment excessive force claim; and his incitement to violence claim.

On remand the court should also consider the First Amendment retaliation claims,

addressing all the alleged deprivations. We affirm the district court as to Mr.

Purkey’s claims that his right to access to courts was unconstitutionally violated;

one of the Eighth Amendment claims alleging deliberate indifference to medical

needs; and his claim regarding retaliatory segregation. We also reject his claim of

error regarding the payment of fees.


                               I. Standard of review



                                          -3-
      A dismissal under § 1915(e)(2)(B)(ii) or § 1915A for failure to state a

claim is subject to de novo review.   Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803,

806 (10th Cir. 1999) (applying de novo review to dismissals under

§ 1915(e)); Sanders v. Sheahan , 198 F.3d 626, 626 (7th Cir. 1999) (noting the

same standard of review for dismissal under § 1915A);    McGore v. Wrigglesworth ,

114 F.3d 601, 604 (6th Cir. 1997) (determining that dismissals under either

section should be reviewed de novo).

             Dismissal of a pro se complaint for failure to state a claim is
      proper only where it is obvious that the plaintiff cannot prevail on
      the facts he has alleged and it would be futile to give him an
      opportunity to amend. In determining whether dismissal is proper,
      we must accept the allegations of the complaint as true and we must
      construe those allegations, and any reasonable inferences that might
      be drawn from them, in the light most favorable to the plaintiff.

Perkins , 165 F.3d at 806 (citation omitted).

                                  II. The complaint

      Plaintiff was incarcerated as a pre-trial detainee at Wyandotte County Jail

at the time the alleged incidents occurred. In his complaint, plaintiff alleges that

in December 1998 defendant guard Davis threw a full carton of milk thirty feet

across a “pod,” striking plaintiff in the neck. The complaint states that the “act

was unprovoked during breakfast,” and that plaintiff later asked to be taken to the

infirmary because he was suffering from “sharp/shooting pains and a burning

sensation through the left side of [the] neck” and a “severe headache since being


                                          -4-
struck with the full carton of milk.” R. Doc. 4 at 2, 7. He alleges that he reported

to the nurse that his neck injury was caused by Davis. He further claims she

would not let him see a doctor without paying a standard $5.00 fee and because

she could see no red mark on his neck. Plaintiff states that he refused to pay the

$5.00 fee and did not see the doctor that day. He alleges, however, that being

struck by the milk carton caused a “pinched nerve” in his neck for which a doctor

at a state hospital (where he was temporarily transferred for a psychiatric

evaluation) later prescribed an analgesic. He claims that, without examining his

“pinched nerve,” defendant Dr. Gamble at Wyandotte discontinued the medication

despite his remonstrations that he suffered without it.

       The complaint further alleges that the day following the milk-carton

incident, defendant Davis told four or five African-American inmates that

plaintiff was trying to cause problems for him because he had hit plaintiff with

the milk carton. The inmates purportedly replied that if Davis would let plaintiff

out of his “room”, they would “deal with” it.        Id. at 7. Plaintiff alleges that the

following night, the same inmates confronted him before “lockdown” in the

presence of a sheriff’s deputy, threatening his life, and an “assaultive

confrontation” began to develop.     Id. He alleges that the next day he was locked

in disciplinary segregation for six weeks as punishment for reporting the incident,

and he was later transferred to another pod.


                                               -5-
       Plaintiff alleged that defendants “systematically and continuously denied

me access to meaningful legal research material in reprisal for litigation plaintiff

was preparing for filing in the U.S. District Court in redress of claimed-alleged

violations.” R. Doc. 1 at 6. He submitted a copy of a grievance challenging an

alleged change in policy for allowing inmates access to legal materials.      Id.

Ex. AB(1). He alleged that defendants informed him that “his legal research

rights have been terminated.”     Id. at 9. He also alleged that defendants

(1) threatened disciplinary action if he persisted in requesting law books, (2) tore

up his civil rights complaint and copies of grievances showing that he has

exhausted administrative remedies, (3) denied him access to tape so that he could

tape the documents back together, and (4) refused to photocopy his complaints or

(5) to provide him with a copy of the prison’s new policies and procedures for

obtaining copies, thus denying him access to the courts.      See R. Doc. 4 at 17.

Plaintiff provided affidavits from other prisoners supporting his claim that

defendants had torn up his complaint and supporting documents. He sued the

various defendants in their official and individual capacities.

                                     III. Discussion

       The district court did not order a   Martinez report. See Martinez v. Aaron ,

570 F.2d 317, 319-20 (10th Cir. 1978) (approving order requiring prison officials

to investigate facts surrounding inmate’s civil rights suit in order to construct an


                                            -6-
administrative record from which court may decide jurisdictional issues and make

determination of frivolity under § 1915). We address each claim in the same

order as the district court addressed those claims.   2



       A. Denial of access to courts claims.

       Plaintiff alleges that defendants unconstitutionally denied him access to the

courts by, among other things, tearing up the initial copy of his complaint and the

supporting exhibits, refusing to provide him with tape to mend the torn items,

refusing to photocopy legal documents, refusing to allow him to purchase large

manila envelopes for mailing his complaints to the courts, and delaying or

denying him access to legal research materials. The district court dismissed these

claims pursuant to Lewis v. Casey , 518 U.S. 343, 351 (1996), concluding that

plaintiff’s allegations demonstrated “inconvenience but not actual injury.” R.

Doc. 9 at 3.

       In Lewis , the Supreme Court held that, to succeed on a claim of denial of

access to the courts by restricting access to legal materials, an inmate must

establish “actual injury,” i.e., that “his efforts to pursue a legal claim” were



2
        Because plaintiff was a pre-trial detainee at the time of the alleged
incidents, his claims technically are for violation of his substantive due process
rights under the Fourteenth Amendment.       Lopez v. LeMaster , 172 F.3d 756, 759
n.2 (10th Cir. 1999). “In determining whether [a pretrial detainee’s] rights were
violated, however, we apply an analysis identical to that applied in Eighth
Amendment cases brought pursuant to § 1983.”        Id.

                                             -7-
“hindered” by the defendants’ misconduct. 518 U.S. at 351. Notably, the Court

offered two examples of when an inmate’s efforts to pursue a legal claim would

be “hindered.” First, the Court noted that an inmate “might show . . . that a

complaint he prepared was dismissed for failure to satisfy some technical

requirement which, because of deficiencies in the prison’s legal assistance

facilities, he could not have known.”    Id. at 351. Second, the Court noted that an

inmate might show “that he had suffered arguably actionable harm that he wished

to bring before the courts, but was so stymied by inadequacies of the law library

that he was unable even to file a complaint.”     Id.

       Applying Lewis to the facts alleged by plaintiff, we agree with the district

court that plaintiff failed to state a claim for denial of access to the courts. It is

apparent that, notwithstanding the defendants’ alleged misconduct, plaintiff was

able to pursue his civil rights claims by filing three separate complaints in district

court and an appellate brief in this court. At worst, defendants’ misconduct

temporarily, but not fatally, delayed, and did not unreasonably hinder, the filing

of those claims.   3



       B. Claims of deliberate indifference to serious medical needs




3
  As discussed below, however, many of these same allegations support
plaintiff’s valid First Amendment retaliation claim.

                                            -8-
       Plaintiff’s complaints allege three separate incidents in which he claims

constitutional violations for failure to address his medical needs. In his first

claim, he alleges that he was given tennis shoes (which he later described as

“orthopedic” shoes) to wear at a state hospital facility that were taken away from

him upon his return to Wyandotte. Defendant Dr. Gamble then ordered that his

shoes be returned at Wyandotte after plaintiff allegedly suffered multiple infected

blisters on his feet caused by the shoes issued by the jail. R. Doc. 1 at 4. He

claims the nurses at Wyandotte refused to comply with Dr. Gamble’s order and

also refused to give him bandages or treatment ordered by Dr. Gamble for the

infected blisters.   Id.

       In his second claim, he alleges that Dr. Gamble showed deliberate

indifference to serious medical needs when he (1) refused to comply with

recommendations made by a physician (or physicians) at the state hospital to

biopsy a tumor on plaintiff’s shoulder, (2) refused to examine plaintiff’s alleged

“pinched nerve” neck injury, and (3) discontinued the Feldene    4
                                                                     prescribed for

plaintiff’s alleged shoulder and neck problems. R. Doc. 4 at 14-15. Plaintiff

avers that he continues to “suffer persistent pain in both shoulders and neck due

to his medication being discontinued.”    Id. at 15.



4
  We take judicial notice that Feldene is a medication with anti-inflammatory and
analgesic properties. P HYSICIANS ’ D ESK R EFERENCE 2383 (53d ed. 1999).

                                          -9-
      In his third claim, he alleges that in December 1999 a nurse at Wyandotte

apparently prescribed ear drops to soften wax buildup in his ears and scheduled

him to have an ear irrigation five days later. He states that at the time the ear

irrigation was scheduled, defendant Dr. Gamble examined his ears and throat,

prescribed medication, and then stated there was no need to do the irrigation and

left the room. Plaintiff states that he insisted that he needed the irrigation

because his ears were “totally clogged, constant pressure and headache.” R. Doc.

5 at 8. When he became adamant and refused to leave the examining room, he

was issued a disciplinary “ticket” and returned to his pod. The complaint states

that Dr. Gamble later denied telling staff not to perform the irrigation and that the

irrigation was ultimately performed almost a month later. He claims that during

this time he suffered pain when swallowing. Id. at 12.

      The district court did not address these three claims individually, noting

that it was apparent that plaintiff had access to medical care during the period of

incarceration at Wyandotte. R. Doc. 9 at 4. The court stated that “no claim of

constitutional dimension is stated where a prisoner challenges only matters of

medical judgment or otherwise expresses a mere difference of opinion concerning

the appropriate course of treatment,” and concluded that the claims “present no

more than a difference of opinion.”   Id. at 3-4.




                                          -10-
       To state a cognizable Eighth Amendment claim for failure to provide

medical care, “‘a prisoner must allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.’”        Olson v. Stotts , 9

F.3d 1475, 1477 (10th Cir. 1993) (emphasis omitted) (quoting          Estelle v. Gamble ,

429 U.S. 97, 106 (1976)). The deliberate indifference requirement has two

components: (1) an objective component requiring that the pain or deprivation be

sufficiently serious, and (2) a subjective component requiring that the offending

officials act with a sufficiently culpable state of mind.      Perkins , 165 F.3d at 809

(citing Wilson v. Seiter , 501 U.S. 294, 298-99 (1991)).

       “A medical need is sufficiently serious ‘if it 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.’”        Sealock v.

Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting         Hunt v. Uphoff , 199

F.3d 1220, 1224 (10th Cir. 1999)). Contrary to the district court, we conclude

that plaintiff’s first claim amounts to more than a “difference of opinion” and is

therefore cognizable under the Eighth Amendment. Liberally construing

plaintiff’s pleadings, he alleges that one or more nurses at Wyandotte

intentionally refused to comply with Dr. Gamble’s orders for treatment of infected

blisters on his feet, and that, as a result, he experienced pain and suffering. These

allegations, if true, would clearly demonstrate more than an “inadvertent failure to


                                             -11-
provide adequate medical care.”    Estelle , 429 U.S. at 105. They would, instead,

establish deliberate indifference to plaintiff’s serious medical needs.

      Although a Martinez report might quickly reveal that Dr. Gamble did

consider the pinched nerve complaint, on this record we have only the plaintiff’s

allegations of complete failure to examine to go by. Deliberate indifference may

include intentionally interfering with treatment or medication that has been

prescribed by a physician.   See Estelle , 429 U.S. 97 at 104-05. Thus, by alleging

that Dr. Gamble refused to examine his “pinched nerve” neck injury and

discontinued the Feldene prescribed by another doctor for that injury such that he

continues to suffer persistent pain in those areas because the discontinuation of

his medication, Mr. Purkey has stated a cause of action instead of alleging only a

difference of opinion. We therefore reverse the dismissal of these two claims and

remand to the district court for further proceedings.

      As for the rest of plaintiff’s indifference to medical needs claims, we

conclude they were properly dismissed. It is apparent from plaintiff’s pleadings

that he was examined by Dr. Gamble regarding the shoulder tumor, and on at least

one separate occasion for his ear/throat problems. It is further apparent that, on

both occasions, plaintiff disagreed with Dr. Gamble’s diagnoses and treatment.

We are not persuaded, however, that these allegations are sufficient to establish

that Dr. Gamble unnecessarily and wantonly inflicted pain on plaintiff. Rather,



                                         -12-
the allegations demonstrate, at worst, negligent diagnoses on the part of Dr.

Gamble. As we have repeatedly indicated, such allegations do not give rise to a

constitutional violation.   See Perkins , 165 F.3d at 810 (“A negligent failure to

provide adequate medical care, even one constituting medical malpractice, does

not give rise to a constitutional violation.”).

       C. Cruel and unusual punishment.

       The district court construed the pleadings as asserting a claim against

defendant Davis for cruel and unusual punishment based upon his allegedly

having struck plaintiff in the neck with a thrown milk carton. A prisoner alleging

excessive force must state facts indicating that the prison official’s use of force

was objectively unreasonable and that the official’s intent was for the purpose of

causing harm.    Hudson v. McMillian , 503 U.S. 1, 6 (1992). One alleging

excessive force need not present facts of significant injury if he also presents

facts showing that the official “maliciously and sadistically use[d] force to cause

harm.” Id. at 9. Of course, “ de minimis uses of physical force . . . not of a sort

repugnant to the conscience of mankind” are not actionable under the Eighth

Amendment. Id. at 10 (quotations omitted). Thus, not “every malevolent touch

by a prison guard” will give rise to a federal cause of action, but unnecessary

blows causing bruises and swelling will, for example.      Id. at 9-10.




                                          -13-
       Citing Hudson, 503 U.S. at 5, and Whitley v. Albers , 475 U.S. 312, 319

(1986), the district court dismissed this claim, apparently on a conclusion of     de

minimis injury as a matter of law. The court noted that “medical personnel found

no markings or other signs of trauma when plaintiff was examined shortly

afterward” and found “no reason to conclude this isolated event was a result of a

‘wanton infliction of pain.’” R. Doc. 9 at 5.

       Our review of the complaint indicates that the district court failed to take

the plaintiff’s well-pleaded allegations as true or to construe them in the light

most favorable to plaintiff.   See Perkins , 165 F.3d at 806 . Plaintiff alleges that

guard Davis’s “attack” on him was unprovoked and unnecessary, giving rise to an

inference that it was maliciously and sadistically intended to cause harm.       See

Hudson , 503 U.S. at 9. Although the complaint stated that medical personnel

found no red marks on plaintiff’s neck, it also stated that plaintiff experienced

sharp and burning pain through the left side of his neck and shoulder area and a

severe headache, and that the injury resulted in a pinched nerve for which a

physician later prescribed Feldene. When a prisoner has been singled out for

intentional punishment, he does not have to allege permanent or significant

injury; the ultimate constitutional inquiry is whether an unnecessary and wanton

infliction of pain has occurred. See id. at 6-7.




                                            -14-
      A Martinez report would shed more light on the incident and assist the

court in discerning whether guard Davis intended to hit plaintiff or whether he

accidently hit plaintiff while attempting to throw the milk carton to someone else,

for example. At this stage of the proceedings, plaintiff has stated a cause of

action against defendant Davis in his individual capacity for violation of his

Fourteenth Amendment rights. We emphasize that, by arriving at that conclusion,

we express no opinion on his ability to ultimately prevail on the merits or even on

summary judgment.

      D. The inciting violence claim.

      Plaintiff’s pleadings allege that, the day following the milk-carton incident,

defendant Davis incited four or five inmates to harm plaintiff for complaining

about the incident. The pleadings further allege that these inmates actually

confronted plaintiff and threatened to kill him. The district court concluded these

allegations were subject to summary dismissal “[b]ecause the record reflect[ed]

the plaintiff was placed in segregation and not injured by [the] other inmates.” R.

Doc. 9 at 7.

      A prisoner states an Eighth Amendment violation by alleging that a prison

official intended to cause him serious harm by inciting other inmates to do

violence against him.   Northington v. Jackson , 973 F.2d 1518, 1525 (10th Cir.

1992). While an “idle threat” of impending physical harm that is not carried out



                                        -15-
will not suffice to state an Eighth Amendment claim, an imminent threat of

serious harm, even though injury never actually occurs, will suffice.     See id. at

1524; Ramos v. Lamm , 639 F.2d 559, 572 (10th Cir.1980);        see also Benefield v.

McDowall , 241 F.3d 1267, 1269-70      (10th Cir. 2001) (holding that an Eighth

Amendment claim had been stated that survived a defense of qualified immunity

when prisoner alleged he had been labeled a “snitch” by a correctional officer).

       While the fact that other officials ultimately took steps to protect the

plaintiff from violence by other inmates would bar a claim against them in their

individual or official capacities for allowing unconstitutional prison conditions to

continue, it would not shield guard Davis from liability for creating the serious

condition that required that protection in the first place. Accepting plaintiff’s

allegations as true, plaintiff would be able to establish that guard Davis intended

to seriously harm him by inciting inmates to beat him, thereby stating a violation

of the Eighth Amendment.      See Northington , 973 F.2d at 1525 & n.4 (stating that

such allegations may also support a substantive due process claim). The district

court erred in dismissing plaintiff’s claim against guard Davis in his individual

capacity for inciting violence against plaintiff.

       E. Segregation/retaliation for filing internal grievances.

       Plaintiff alleged that, after the inmate confrontation, prison officials placed

him in disciplinary segregation. R. Doc. 1 at 4, Doc. 4 at 8. Although plaintiff



                                           -16-
alleged that his placement in segregation constituted retaliation for filing

grievances, the district court dismissed the claim, holding that “changes to an

inmate’s housing status generally do not implicate a constitutional interest.”          Id.

Doc. 9 at 6.

       “The existence of an improper motive for disciplining a prisoner which

results in interference with a constitutional right” may give rise to a cause of

action under § 1983.    Smith v. Maschner , 899 F.2d 940, 947 (10th Cir. 1990).

Because a prisoner must first file a grievance in order to ultimately gain access to

courts to state a claim for relief under 42 U.S.C. § 1997e, then punishing him for

actually filing grievances by placing him in disciplinary segregation would state a

claim for a both an access to courts and a First Amendment violation.            See id. (“It

is also one aspect of the First Amendment right to petition the government for

redress of grievances.”);   Wildberger v. Bracknell , 869 F.2d 1467, 1468 (11th Cir.

1989) (holding that retaliation for filing lawsuits and administrative grievances

“violates both the inmate’s right of access to the courts and the inmate’s First

Amendment rights”); Valandingham v. Bojorquez , 866 F.2d 1135, 1138 (9th Cir.

1989) (allegation that prison officials conspired to label prisoner a “snitch” in

retaliation for petitioning prison and government for redress of grievances stated

cognizable claim for violation of right of access to the courts).




                                            -17-
       However, because Mr. Purkey cannot show that filing a grievance was the

“but for” cause of his segregation,   see Peterson v. Shanks , 149 F.3d 1140, 1144

(10th Cir. 1998), we affirm dismissal of this claim. Certainly it was necessary to

remove Mr. Purkey from the dangerous condition in which other inmates were

threatening to beat him, and it was not unreasonable per se to place    him in

segregation instead of the four or five inmates who threatened him.      Therefore,

we affirm the district court’s dismissal of this cause of action, albeit for a

different reason.   See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir.

1994) (noting that appellate court may affirm district court on any ground for

which there is record sufficient to permit conclusion of law).

       F. Claims of retaliation for filing suit against officers.

       Plaintiff points out that the district court did not address his First

Amendment claims that county jail officials retaliated against him for attempting

to file suit against jail employees by (1) denying law library privileges, (2)

threatening discipline if he persisted in obtaining legal materials, (3) tearing up

his first complaint, (4) screening his subsequent civil rights action and placing

copies of it in his jail file, (5) refusing to sell him large manila envelopes for

mailing legal actions, (6) refusing to promptly provide accounting statements

required for his in forma pauperis application, and (7) calling him out of his cell

late at night and threatening him because he continued to pursue his claims



                                           -18-
against officials. Of course, we are at a disadvantage without explicit findings to

review. After reviewing the complaints, however, we conclude that plaintiff has

stated a cause of action for First Amendment retaliation.     See Penrod v. Zavaras ,

94 F.3d 1399, 1404 (10th Cir. 1996) (“prison officials may not harass or retaliate

against an inmate for exercising his right of access to the courts.”).

       G. Claim that court erred in requiring payment of filing fees after

dismissal.

       Plaintiff asserts that the district court erred in concurrently ordering filing

fees to be paid and dismissing his claims as frivolous. Section 1915(b) does not

waive the filing fee, however, nor does it condition payment of the filing fee on

success on the merits. It states, “if a prisoner brings a civil action or files an

appeal in forma pauperis, the prisoner shall be required to pay the full amount of

a filing fee.” 28 U.S.C. § 1915(b)(1). Notwithstanding the district court’s

dismissal of plaintiff’s action, he is still required to pay the full filing fee to the

district court.

       H. Plaintiff’s motion for order mandating return of legal materials.

       On August 23, 2000, plaintiff filed a motion requesting this court direct the

warden to provide him with his legal materials that were allegedly confiscated

when plaintiff was placed in administrative segregation on August 1, 2000. The

record indicates that plaintiff was transferred to another correctional facility in



                                           -19-
September and we assume that he recovered those materials upon transfer, thus

mooting the request. If that assumption is erroneous, plaintiff may petition the

district court for relief. Plaintiff’s motion is therefore denied.

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

is AFFIRMED in part and REVERSED in part and REMANDED for further

proceedings.



                                                      ENTERED FOR THE COURT
                                                      PER CURIAM




                                          -20-
No. 00-3218, Purkey v. Green

HENRY , Circuit Judge, concurring and dissenting:

       I respectfully dissent from that portion of the order affirming the dismissal

of Mr. Purkey’s claim that his access to courts was unconstitutionally violated by

the intentional destruction of his complaint and supporting documents.

Destruction of legal documents by prison officials can present serious

constitutional problems.    See Green v. Johnson , 977 F.2d 1383, 1389-90 (10th

Cir. 1992). Tearing up an inmate’s complaint and supporting documents asserting

excessive force and allegedly unconstitutional conditions of confinement and

refusing to photocopy complaints so that they can be properly filed clearly

violates the mandate   that prison officials not hinder an inmate’s access to the

courts. See Lewis , 518 U.S. at 351.     The word “hinder” means “to hamper” or “to

impede or delay the progress of,” W     EBSTER ’ S   II N EW R IVERSIDE U NIVERSITY

D ICTIONARY at 583 (1988), and thus does not signify a conclusive impediment.

It would appear that prison officials may unconstitutionally interfere with access

to courts not only by fatally forestalling a required pleading, but also by

unreasonably delaying a filing.     See Johnson v. Avery , 393 U.S. 483, 485-86

(1969) (“access of prisoners to the courts . . . may not be denied       or obstructed”)

(emphasis added). Indeed, otherwise, officials could simply continue tearing up

pleadings with impunity as long as conclusive deadlines still lay in the future.

Mr. Purkey alleged actual injury, and not simple delay, by stating that his original
complaint and supporting documents were torn to pieces so that he could not file

that complaint.




                                        -2-
No. 00-3218, Purkey v. Green

BRISCOE, Circuit Judge, concurring and dissenting:

      I concur in part and dissent in part. Although I agree with the resolution

of most of the claims at issue, I write separately to express my disagreement

with the majority’s decision to reverse and remand plaintiff’s cruel and unusual

punishment claim, and plaintiff’s incitement to violence claim.

                        Cruel and unusual punishment

      Plaintiff alleges he was subjected to cruel and unusual punishment when

he was struck in the neck with a milk carton thrown by defendant Davis.

Although the district court dismissed this claim on the grounds that it was an

“isolated event” that resulted in “no markings or other signs of trauma when

plaintiff was examined [by medical personnel] shortly afterward,” R. Doc. 9 at

5, the majority reverses that ruling and remands for further proceedings.

According to the majority, the fact that plaintiff did not suffer any “permanent

or significant injury” is irrelevant. Maj. Op. at 15. Instead, the majority states,

“the ultimate constitutional inquiry is whether an unnecessary and wanton

infliction of pain has occurred.” Id. The majority directs the district court on

remand to obtain a Martinez report to “discern[] whether guard Davis intended

to hit plaintiff or whether he accidently hit plaintiff while attempting to throw

the milk carton to someone else.” Id.
      In my view, it is unnecessary to decide whether defendant Davis intended

to hit plaintiff with the milk carton. Even assuming that he did (and I certainly

do not condone Davis’ conduct if that is the case), I agree with the district

court that it was, at most, a “de minimis” application of force that does not rise

to the level of an Eighth Amendment violation. See Hudson v. McMillian, 503

U.S. 1, 9-10 (1992) (emphasizing that the Eighth Amendment prohibition

against cruel and unusual punishment “necessarily excludes from constitutional

recognition de minimis uses of physical force, provided that the use of force is

not of a sort ‘repugnant to the conscience of mankind’”) (citation and internal

quotations omitted); Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir.

1992) (same).

                             Incitement to violence

      Plaintiff alleged that four inmates, at the urging of defendant Davis,

confronted and threatened to kill him for complaining about the milk carton

incident. The district court dismissed the claim “[b]ecause the record reflected

the plaintiff was placed in segregation and not injured by [the] other inmates.”

R. Doc. 9 at 7. The majority, however, reverses and remands the claim for

further proceedings. In doing so, the majority states that if plaintiff’s

allegations are true he “would be able to establish that . . . Davis intended to




                                        -2-
seriously harm him by inciting inmates to beat him, thereby stating a violation

of the Eighth Amendment.” Maj. Op. at 16.

      I disagree. First and foremost, I am not convinced that plaintiff’s

allegations, even if true, demonstrate that he was subjected to a “substantial

risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). As the

district court recognized, plaintiff’s own pleadings allege that he was promptly

placed into segregation after notifying prison officials about the incident and

there is no indication he was thereafter subjected to threats of violence by the

four inmates. Second, it is unclear to me what type of relief plaintiff would be

entitled to even if he were allowed to proceed on the claim. Plaintiff is no

longer housed at the Wyandotte County Jail and therefore has no legitimate

claims for declaratory or injunctive relief. See Green v. Branson, 108 F.3d

1296, 1300 (10th Cir. 1997) (concluding that a prisoner’s transfer or release

from a jail moots his claims for declaratory relief). Further, plaintiff has not

alleged any physical injury resulting from the confrontation with the four

inmates. In light of 42 U.S.C. § 1997e(e), that leaves him with little more than

a claim for nominal damages against defendant Davis. See Searles v. Van

Bebber, 251 F.3d 869, 876, 878 (10th Cir. 2001) (concluding that § 1997e(e)

limits an inmate’s ability to recover for mental or emotional injuries, but does

not bar recovery of nominal damages ).

                                         -3-
