                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 2 1998
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 HARRY THOMAS ECKERT III,

               Plaintiff - Appellant,                   No. 98-1105
          v.                                           (D. Colorado)
 CAMP, COLLINS, SHEARER,                           (D.C. No. 96-B-2021)
 JARVIS, ACKERMAN, HIBBARD,
 RIFFLE, WILBOURN, SUMRO-
 DAVIS, E’MELO, CRUMP,
 JACOBSON, RAMSEY, STOLL, K.
 HERSEY, B. MILLER, GARCIA,
 MONTGOMERY, KELLER,
 ROMERO, FARLAND, MCKENZIE,
 SCHADLER, SPRINKLE, SERAFINI,
 DEMPSTER, KITTAY, all in their
 individual and official capacities,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before ANDERSON , McKAY , and LUCERO , 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       This order and judgment is not binding precedent, except under the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. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Harry T. Eckert III, a Colorado state prisoner, initiated this pro se civil

rights action by filing a complaint and a motion in the district court seeking leave

to proceed under 28 U.S.C. § 1915. He now appeals the district court’s dismissal

and judgment in favor of the defendants. He contends that the court improperly

resolved factual disputes and incorrectly applied the law; and he also alleges

various procedural irregularities and errors. We affirm.



                                 BACKGROUND

      Upon receiving Eckert’s complaint and motion to proceed in forma

pauperis, the district court issued an order which 1) notified Eckert of certain

deficiencies in his complaint and in his § 1915 motion which needed to be cured

in order for him to proceed, and 2) directed the clerk to commence the action,

notwithstanding the deficiencies. Supp. R. Vol. 1, Tab 2. In response to the

court’s order, Eckert paid the filing fee in full and, as ordered, submitted his

complaint on the proper court form (the “form complaint”). R. Vol. I, Tab 5.




                                         -2-
      Eckert’s form complaint stated ten claims against twenty-seven defendants,

some of whom held positions as officials either of Adams County, Colorado, or of

the Adams County Detention facility (“ACD”), and some of whom acted as his

defense attorneys in a Colorado state criminal matter. R. Vol. I, Tab 5. Claims I

through III arise from events that occurred in August 1994 after Eckert was

brought to the ACD for a post-conviction court hearing. Claims IV through X

involve events which occurred from January through March 1992, while Eckert

was held in the ACD as a pretrial detainee.     1



      In the first three claims, Eckert complained that certain jail personnel

violated his Eighth Amendment rights by allowing another inmate to assault him

(Claim I); that the doctor in charge of the ACD violated his Eighth Amendment

rights by failing to repair his glasses which were broken during the assault (Claim

II), and that the jail personnel and responsible county officials denied him access

to the courts and effective assistance of counsel by denying him legal telephone

calls and visits (Claim III).

      Claim IV alleged Eighth Amendment violations related to an inmate

assault. Claims V and VI alleged the denial of due process related to disciplinary



      1
       Although Eckert claims Eighth Amendment violations, the district court
correctly observed that we analyze a pretrial detainee’s claims involving
conditions of confinement under the Due Process Clause, not under the Eighth
Amendment. Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979).

                                              -3-
and classification hearings concerning the assault. Claim VII alleged that a jail

official committed an assault and battery against Eckert and that other responsible

persons failed to prevent it. Claim VIII alleged that jail personnel, his defense

attorneys, and other county personnel violated his Eighth Amendment rights by

failing to take action against a jailor who improperly monitored his legal visits.

Claim IX alleged that Eckert’s constitutional rights were violated when certain

jail personnel denied him an unmonitored visit with his attorney. Finally, Claim

X alleged that his jailers violated his constitutional rights by sending reports

about his visits with his attorney to the Adams County District Attorney.

       Finding that Claims III, VI, VII, VIII, IX and X were legally frivolous,

failed to state a claim, and sought monetary relief against defendants immune

from such relief, the district court dismissed those claims pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i),(ii),(iii). R. Vol. I, Tab 6 at 6-8, 10. To the extent that Eckert

sought an order expunging all ACD “disciplinary and classification actions,” the

district court construed the pleading as an application for a writ of habeas corpus,

id. at 2, which it dismissed for failure to allege exhaustion.   2
                                                                     Id. at 8. Finally, the

district court ordered Eckert to file an amended complaint which fully set forth

his undismissed claims against the remaining defendants.         Id. at 11.




       2
           Eckert does not appeal this portion of the court’s ruling.

                                             -4-
      Eckert filed the amended complaint as ordered.     3
                                                             After filing a Martinez

report, see Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978), the remaining

defendants moved for dismissal or summary judgment. Rather than respond to the

defendant’s motion, Eckert moved to reinstate the dismissed claims and

defendants. The magistrate judge recommended summary judgment in favor of

the defendants on three claims and a 28 U.S.C. § 1915A dismissal of the

remaining claim, and Eckert objected. After conducting a de novo review, the

district court adopted the magistrate judge’s recommendation and, consequently,

dismissed the case in its entirety. This appeal followed.



                                    DISCUSSION

      On appeal, Eckert first complains that the district court improperly applied

the dismissal standards of 28 U.S.C. § 1915. He argues that once he paid his fee

in full, § 1915 no longer applied to his case. We review the district court’s

interpretation of § 1915 de novo.    See McGore v. Wrigglesworth , 114 F.3d 601,

604 (6th Cir. 1997);   Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995)   .

      It is undisputed that Eckert initiated this action by filing a motion which

invoked the provisions of § 1915. On August 29, 1996, the district court issued



      3
       Eckert also appealed the partial dismissal, but we dismissed that appeal for
lack of jurisdiction.

                                           -5-
an order which directed Eckert to cure specified deficiencies in his § 1915 motion

to proceed in forma pauperis and in the form of his complaint. The order further

provided that, “[n]otwithstanding the deficiencies” in Eckert’s filings, the clerk

“will be directed to commence [the] civil action.” Supp. R. Vol. I, Tab 2 at 1.

Under the terms of the court’s order which directed the filing of Eckert’s

complaint even though no fees had been paid, the provisions of § 1915 necessarily

governed this matter. While Eckert did not specifically respond to the particulars

of the court’s order, he did file a new complaint on the form provided by the

court, and, instead of providing the additional § 1915 papers as ordered, he paid

the full filing fee. At that time, even though the fee had been fully paid, pursuant

to the terms of the statute, the standards of § 1915 continued to apply.    See 28

U.S.C. § 1915(b)(1) & (e)(2).    4
                                     Accordingly, we find no error in the district

court’s considering Eckert’s complaint according to the provisions of § 1915.        5




       4
        In relevant part, 18 U.S.C. § 1915(b)(1) provides that “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. The court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by law [a portion of the
prisoner’s trust fund account].” Section 1915(e)(2) further provides for the
dismissal of the case upon certain conditions, “[n]otwithstanding any filing fee, or
any portion thereof, that may have been paid.”

       Thus, a prisoner who has funds must pay the filing fee, although he may do
so in installments. However, notwithstanding such payment, a court must still
utilize the § 1915 dismissal criteria.
       5
           See also 28 U.S.C. § 1915A, which was added by the Prison Litigation
                                                                      (continued...)

                                             -6-
       Eckert also contends that the district court erred in its application of the

law, both in its § 1915 dismissal of the third and sixth through tenth claims of his

form complaint and in its adverse judgment and dismissal of the remaining claims

set forth in his amended complaint. In this case, the district court based its first

order of dismissal upon all three subsections of 28 U.S.C. § 1915(e)(2)(B).     6
                                                                                    Its

second order of dismissal included a grant of summary judgment as to three

claims, and a § 1915A dismissal for failure to state a claim as to one claim.

       Summary judgment is appropriate if there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c);   see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).

We review a district court’s grant of summary judgment de novo.          See Kaul , 83

F.3d at 1212. A dismissal for failure to state a claim is appropriate if, taking the

well-pleaded allegations as true and construing them in the light most favorable to

       5
        (...continued)
Reform Act of 1995, Pub. L. No. 104-134 § 805(a), 110 Stat. 1321, 1321-75.
This new section directs the court to screen all civil complaints filed by prisoners
which seek redress from a governmental entity or officer or employee, and it
directs the court to dismiss any claims that are frivolous, are malicious, fail to
state a claim, or seek monetary relief from a defendant who is immune from such
relief. Id. Thus, even if Eckert had not affirmatively invoked § 1915 with his
motion, the court would have been required to screen his complaint using
standards identical to those set out in § 1915(e)(2)(B).

       As discussed infra, all but one of the claims dismissed in the first order is
       6

time-barred in any event. With regard to the single claim (Claim III) which is not
time-barred, the text of the court’s discussion focused only upon Eckert’s failure
to make sufficient allegations. See R. Vol. I, Tab 6 at 6.

                                           -7-
the plaintiff, no relief can be granted based on a dispositive issue of law.   See

Fed. R. Civ. P. 12(b)(6);     Dill v. City of Edmond , 155 F.3d 1193, 1201 (10th Cir.

1998). Although recent unpublished Orders and Judgments in this circuit suggest

that a de novo standard might apply to our review of a § 1915(e)(2)(B) dismissal

for failure to state a claim, we have not yet published an opinion which definitely

settles the applicable standard. However, we need not decide this issue here,

because our conclusions in this case would be the same under any standard.

       As to each of the claims which involve events which occurred while Eckert

was a pretrial detainee in 1992, we affirm the district court’s dismissal based on a

statute of limitations bar.   7
                                  See Workman v. Jordan , 32 F.3d 475, 482 (10th Cir.

1994) (applying Colorado’s two-year personal injury limitations period to § 1983

claim). Thus, the only timely claims are the first three claims of Eckert’s form

complaint (two of which are restated in the amended complaint). We now

consider each of these in turn.




       7
        In a motion for reconsideration and on appeal, Eckert alleges a continuing
conspiracy and a continuing course of action which would bring the 1992 events
within the scope of the 1994 events. Such an argument is belied by the fact that
more than two years had elapsed between the two sets of events. Eckert’s
conclusory allegations of conspiracy are insufficient to establish a basis for
tolling the statute of limitations. See Peterson v. Shanks, 149 F.3d 1140, 1145
(10th Cir. 1998) (noting that “conclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based”).

                                              -8-
       In Claim I of both complaints, Eckert alleged that defendants Montgomery,

Keller, Garcia, and Dempster violated the Eighth Amendment by failing to protect

him from an assault from another inmate. As the magistrate judge noted, Eckert

failed to establish the existence of a policy, custom or practice of the Adams

County Sheriff’s Department that played any part in this alleged violation. Thus,

he failed to state a claim for relief against these defendants in their official

capacities. See Hafer v. Melo , 502 U.S. 21, 25 (1991). Nor did he state a claim

for relief in their individual capacities, since he failed to allege or to present any

facts tending to show that they knew of and disregarded an excessive risk of harm

to him. 8 See Farmer v. Brennan , 511 U.S. 825, 837 (1994).

       In Claim II of both complaints Eckert alleged that Sumro-Davis, the

physician responsible for medical care at the ACD, violated his constitutional

rights by failing to repair or replace his broken eyeglasses.   9
                                                                    He also alleges that

the lack of his glasses and the resulting vision problems prejudiced him in his pro

se court appearance on August 23, 1994. However, the complaints establish only

that Sumro-Davis was the medical supervisor at the jail, and Eckert failed to

allege any facts to establish Sumro-Davis’s personal participation in the alleged


      Specifically, the magistrate judge noted that Eckert failed to controvert the
       8

defendants’ affidavits which disclaimed any such knowledge. R. Vol. I, Tab 70 at
5.

       Eckert also makes this claim against various city officials who failed to
       9

properly supervise Sumro-Davis.

                                             -9-
denial. 10 As the magistrate judge correctly concluded, Eckert has made no timely

allegation of such personal participation and therefore fails to state a claim for

relief.

          Claim III of the form complaint, which was dismissed in the district court’s

first order of dismissal, also arises from events which occurred in 1994. In this

claim, Eckert alleged that defendants Montgomery, Keller, Garcia and Dempster

denied him access to the courts and effective assistance of counsel by denying

him access to legal telephone calls and visits. He also raises this claim against

various county officials who failed to properly supervise the jail personnel. The

district court dismissed this, along with other denial of access claims, noting   inter

alia that Eckert failed to allege any actual injury in his ability to pursue a




         Eckert failed to respond to the defendants’ motion for dismissal or
          10

summary judgment despite two extensions of time to do so. Nonetheless,
belatedly, in his objections to the magistrate judge’s recommendations, for the
first time, Eckert alleged that he filed a “medical kite on August 22, 1994
concerning having his glasses repaired or replaced,” and he further alleges that
Sumro-Davis refused the request. R. Vol. I, Tab 72 at 20-21. Even if true, the
bare allegation was not timely made and is insufficient in any event. While we
liberally construe pro se pleadings, an appellant's pro se status does not excuse
the obligation of any litigant to comply with the fundamental requirements of the
Federal Rules of Civil and Appellate Procedure. Ogden v. San Juan County, 32
F.3d 452, 455 (10th Cir. 1994).

      We also note that Eckert’s Amended Complaint appears to allege two
separate incidents in which his eyeglasses were broken, the first of which
occurred in 1991. R. Vol. I, Tab 15 at 3, Claim II. Obviously, any claim arising
in 1991 is time barred.

                                            - 10 -
nonfrivolous legal claim. R. Vol. I, Tab 6 at 6 (citing      Lewis v. Casey , 518 U.S.

343, 349 (1996)). On appeal, Eckert points out that his pleading demonstrated

that he was involved in matters related to his criminal case, and he contends that

the district court improperly applied the standard related to access in civil cases.

We disagree. The requirement of actual injury—which relates to standing to

bring a § 1983 claim—clearly applies to access in criminal matters.        Lewis , 518

U.S. at 354 (noting several access-to-court decisions which concerned attempts by

inmates to pursue direct appeals from their convictions).

       Additionally, Eckert alleges various procedural errors. First, he claims that

the district court failed to conduct a de novo review of the magistrate judge’s

recommendation. Eckert is correct that a de novo review is required after a party

makes timely written objections to a magistrate's report. We have generally held

that a brief order expressly stating the court conducted de novo review is

sufficient to establish that the court satisfied its duty.   Northington v. Marin , 102

F.3d 1564, 1570 (10th Cir. 1996). The order in this case contains such a

representation, see R. Vol. I, Tab 73, and Eckert has presented us with nothing to

overcome the presumption that the court carried out its duty as stated.

       As further procedural errors, Eckert complains that the district court

improperly delayed ruling on his motion to reinstate and on his motion for

reconsideration, failed to address his request for counsel, failed to allow him to


                                              - 11 -
amend his complaint, and failed to liberally construe his pleadings in a favorable

light. 11 As we have already affirmed the district court’s dismissal and judgment

on the merits, Eckert can show no prejudice from any delay in the court’s

subsequent rulings to reinstate or reconsider.       Cf. Harris v. Champion , 15 F.3d

1538, 1559 (10th Cir. 1994) (noting, in the context of appellate delay, that a

showing of prejudice is necessary to establish a due process violation resulting

from delay). Nor can Eckert show any prejudice or constitutional violation from

the court’s failure to address his request for counsel, both because his claims

lacked merit, and because a prisoner has no constitutional right to counsel in civil

proceedings.        See Pennsylvania v. Finley , 481 U.S. 551, 555 (1987).

Additionally, the court had already allowed one amended complaint, and we

conclude that it did not abuse its discretion in refusing to allow a second

amendment.     12
                    Moreover, even under a liberal reading, Eckert’s claims failed as a

matter of law, and, moreover, once the summary judgment motion was filed, he

could no longer rely on the conclusory allegations in his complaint.         See Fed. R.



        Eckert also alleges other constitutional deprivations, such as the failure of
       11

the Colorado prison to provide sufficient legal materials. However, there is no
record of his making these claims in the district court. We will not review such
claims made for the first time on appeal.

        Eckert’s filings with the district court state no basis for his request to
       12

amend his complaint. In his brief to us, he states only that he wished to conform
to the evidence, and to raise new transactions which had occurred since the filing
of his original complaint. Appellant’s Br. at 3C.

                                            - 12 -
Civ. P. 56(e) (“When a motion for summary judgment is made and supported

. . . an adverse party may not rest upon the mere allegations [in his pleadings], but

the adverse party’s response, by affidavits . . . must set forth specific facts

showing that there is a genuine issue for trial.”).

       Finally, Eckert has filed a motion seeking 1) leave to file a reply brief out

of time; and 2) an order directing the prison to copy his reply brief in its entirety.

According to Eckert’s affidavit, the legal clerk refused to copy the reply brief

because it was incomplete and contained exhibits which were too voluminous. He

claims that the prison’s refusal to copy his brief constitutes a denial of access to

the courts and deliberate indifference. We note in passing that Eckert has made

no showing of exhaustion. Moreover, as we have already explained, in order to

state a claim for denial of access to the courts, a prisoner must demonstrate an

actual injury in his ability to pursue a nonfrivolous legal claim.   Lewis v. Casey ,

518 U.S. 343, 349 (1996)). Our extensive review of the merits shows that

Eckert’s appeal brings no nonfrivolous claim, and his newly conjured conclusory

allegation of deliberate indifference is insufficient as a matter of law.




                                            - 13 -
      Accordingly we DENY the motion, and AFFIRM the judgment of the

district court. As Eckert’s appeal is meritless and frivolous, it is a prior occasion

under 28 U.S.C. § 1915(g).   13



                                        ENTERED FOR THE COURT


                                        Stephen H. Anderson
                                        Circuit Judge




      13
        We note, however, that the district court’s disposition, which included a
summary judgment ruling, does not count as a prior occasion for purposes of
§ 1915.

                                         - 14 -
