                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 4 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOE JOHNSON, JR.,

                Plaintiff-Appellant,

    v.                                                    No. 99-6148
                                                    (D.C. No. 98-CV-494-T)
    JAMES L. SAFFLE; DELORES                              (W.D. Okla.)
    RAMSEY; STEVE HARGETT;
    KATHY HALE; BRYAN PALMER;
    STEVEN W. DAVIS,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
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 Joe Johnson, Jr. appeals from summary judgment granted

in favor of defendants on his civil rights complaint filed pursuant to 42 U.S.C. §

1983. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

      Plaintiff, appearing pro se, alleges denial of constitutional rights while he

was incarcerated in Lexington, Oklahoma. He asserts that a department of

corrections (“DOC”) policy limiting the amount of legal material an inmate may

possess in his cell unconstitutionally restricts his access to courts in violation of

his First and Fourteenth Amendment rights and in violation of his right to assist

other inmates in preparation and filing of their legal pleadings. In a separate

count, he alleges that certain of the state defendants retaliated against him for

filing a grievance contesting a DOC no-smoking policy by enforcing the property

restrictions and by threatening to issue a misconduct report. In a third count,

plaintiff alleges that all defendants conspired to retaliate against him for filing

grievances and for assisting other inmates in legal matters. He later asserted that

the retaliation culminated in a transfer to another facility. He asserts that because

the new facility takes more stringent security measures and is noisier, more

crowded, and less safe and comfortable, transfer to that facility may be considered

to be punishment. Plaintiff sought injunctive, declaratory, and monetary relief.


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       On order from the court, defendants filed a      Martinez report, see Martinez v.

Aaron , 570 F.2d 317 (10th Cir. 1978), and moved to dismiss and for summary

judgment. In his recommendation for disposition of the case,         see 28 U.S.C.

§ 636(b)(1)(B), the magistrate judge concluded that plaintiff had failed to state

a claim against defendant Davis (a private attorney) because of the absence of

factual allegations demonstrating that Davis acted under color of state law,

see Hammond v. Bales , 843 F.2d 1320, 1323 (10th Cir. 1988). He therefore

recommended granting Davis’s motion to dismiss. The magistrate judge proposed

granting summary judgment in favor of all state defendants on the property

limitation claim, concluding under     Turner v. Safley , 482 U.S. 78, 88-91 (1987),

that the DOC regulations bore a reasonable relationship to a legitimate

penological objective. The magistrate judge also found that plaintiff had failed

to allege actual injury caused by the property restriction in his denial of access

to courts claim. The magistrate judge properly determined that plaintiff has no

constitutional right to provide legal representation to other inmates.     See Smith v.

Maschner , 899 F.2d 940, 950 (10th Cir. 1990).

       As to the retaliation claims, the magistrate judge concluded that plaintiff

had failed to allege that he was actually punished for any reason, since a claim

that a prisoner has been verbally threatened is not sufficient to state a claim under

§ 1983, see Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979), and because


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plaintiff had not alleged or shown any direct or circumstantial evidence that “but

for the retaliatory motive, the incidents to which he refers . . . would not have

taken place,” Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998) (quotation

omitted).

         The magistrate judge concluded that plaintiff’s claims of conspiracy were

vague, conclusory, and presented no facts showing agreement and concerted

action designed to deprive plaintiff of a constitutional right, and therefore could

not survive summary judgment.      See Durre v. Dempsey , 869 F.2d 543, 545

(10th Cir. 1989). Finally, the magistrate judge recommended denying plaintiff’s

motion for a temporary restraining order because plaintiff had failed to establish

a threat of irreparable harm and because the relief requested was not consistent

with the public interest.   See Lundgrin v. Claytor , 619 F.2d 61, 63 (10th Cir.

1980).

         The district court adopted the magistrate judge’s recommendations,

dismissing the claim against Davis and granting the remaining defendants’

motions for summary judgment. The court also denied plaintiff’s request for a

temporary restraining order and his motions to supplement the record, to compel

discovery, and to amend the complaint to add other defendants.

         On appeal, plaintiff argues that the court erred by (1) denying his motion to

supplement the pleadings; (2) concluding that his transfer to another facility was


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proper despite his claims of retaliatory motive; (3) applying    Lundgrin to his

request for injunctive relief in light of   Green v. Johnson , 977 F.2d 1383 (10th Cir.

1992); (4) failing to order production of prison video tapes and denying his

motion for discovery; and (5) refusing to appoint counsel.

       We review the court’s ruling on the motion to supplement the record for

abuse of discretion.    See Sports Racing Servs., Inc. v. Sports Car Club of Am.,

Inc. , 131 F.3d 874, 894 (10th Cir. 1997). We first note that the district court

never ruled on either plaintiff’s motion to supplement the pleadings filed July 30,

1998 (R. Doc. 30), or on his motion to supplement his summary judgment proof

of retaliation filed January 15, 1999 (R. Doc. 39). The court also did not discuss

the contents of the July 1998 motion in ruling on summary judgment. We deem

those motions as having been denied, and will address whether the court abused

its discretion in failing to grant the motions or consider the pleadings.

       The court did deny plaintiff’s motion to supplement the record filed

February 8, 1999 (R. Doc. 40). A review of this motion shows that plaintiff

requested supplementation with a letter plaintiff sent to the Lexington

Correctional facility regarding an order and judgment issued by this court.

Because the letter is not relevant to the court’s summary judgment rulings, the

court did not abuse its discretion in denying the motion to supplement.




                                             -5-
       We reject plaintiff’s claim that documents submitted with his motions filed

on July 30, 1998 and January15, 1999, demonstrate a genuine issue of material

fact regarding retaliation. In his July motion, plaintiff submitted proof that

another inmate, Steve Seitz, was allowed to keep more than one cubic foot of

legal materials in his cell, while he was denied the same request. He argues that

this difference in treatment is proof of defendants’ retaliatory motive. We note,

however, that Seitz’s request involved legal materials necessary for his own

appeals while plaintiff’s request was based on his claim that he needed to keep

excess legal materials in order to assist other inmates.    Compare R. Doc. 28,

attachments 7-10 with id. , attachments 11, 12, 18-20. Under these differing

circumstances, plaintiff has failed to raise a genuine issue of material fact

regarding defendants’ alleged retaliatory motive, and the court did not abuse its

discretion in denying plaintiff’s motion to supplement the record.

       Although he did not expressly refer to it or rule upon it, the magistrate

judge did address plaintiff’s claims raised in his January 15, 1999 motion that his

transfer to another prison was retaliatory because it occurred after his grievances

and lawsuits were filed. The court noted that the transfer bore no close temporal

proximity to the grievances or filing of suits and that transfers are within the

normal incidents of prison confinement under        Meachum v. Fano , 427 U.S. 215,

225 (1976). The court did not abuse its discretion in denying this motion. We


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further conclude that the court properly granted summary judgment on plaintiff’s

retaliation claims for substantially the same reasons as stated in the magistrate

judge’s report and recommendations.

       Plaintiff argues that Green v. Johnson , 977 F.2d 1383 (10th Cir. 1992),

precludes application of the    Lundgrin factors in his motion for temporary

injunction. We disagree. The court in       Green remanded part of that case to the

district court because the plaintiff’s inability to produce sufficient evidence of

denial of access to legal materials may have been caused by the defendants’

unconstitutional behavior, and the district court’s findings and conclusions were

inadequate to make a determination as to which party should be held responsible

for plaintiff’s inability to meet his burden of proof.   See id. at 1390. Those

factors are not present in this case, and plaintiff has failed to allege that the

property limitation has prevented him from accessing his legal materials. The

magistrate judge properly applied      Lundgrin and properly denied the motion for

a temporary injunction.

       Plaintiff has failed to support his claims of error regarding the court’s

denial of his motions to compel discovery and to appoint counsel with any factual

or legal argument. We have reviewed the motions and conclude that they were

properly denied under the circumstances.




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The judgment is AFFIRMED.



                                  Entered for the Court



                                  Mary Beck Briscoe
                                  Circuit Judge




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