                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
             UNITED STATES COURT OF APPEALS                   OCT 18 2002

                               TENTH CIRCUIT              PATRICK FISHER
                                                                   Clerk



DAVID ANDREW WOODRUFF,

      Plaintiff - Appellant,

v.

(NFN) PAULSON, in his/her official
capacity as Corrections Officer,
Wyoming Department of Corrections
State Penitentiary; (NFN) PHILLIPS,
Officer, in his/her official capacity as
Corrections Officer, Wyoming
Department of Corrections State
                                                No. 02-8027
Penitentiary; (NFN) WILLIAMSON,
                                           D.C. No. 02-CV-024-B
in his/her official capacity as Officer
                                               (D. Wyoming)
at the Wyoming State Penitentiary;
VANCE EVERETT, Warden, in his
official capacity at the Wyoming
Department of Corrections State
Penitentiary; JUDY UPHOFF, in her
official capacity as Director of the
Wyoming Department of Corrections;
Sergeant (NFN) SILWEL, in his/her
official capacity as Corrections
Officer at the Wyoming Department of
Corrections State Penitentiary,

      Defendants - Appellees.
                        ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.



      Mr. David Woodruff, a prisoner at the Wyoming State Penitentiary, brought

various complaints, based on both state and federal law, against the Wyoming

Department of Corrections and various officers at the penitentiary. He asserted

violations of his constitutional rights including access to the courts, due process,

and equal protection, based on his allegation that he has been provided with

insufficient paper for legal work and the pens provided are too difficult to use.

He further alleged he is subjected to cruel and unusual punishment in violation of

the 8th Amendment, both because the guards wake him during the night, causing

pain, ringing in his ears, stress, insomnia, and angry outbursts, and because the

lights in his cell are too bright, causing his eyes to become red and irritated,

making it difficult for him to watch television while lying on his bed, and

rendering him unable to conduct his legal work. The district court dismissed the


      *
       After examining appellant’s brief 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.

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complaint in its entirety for failure to state a claim and for being frivolous.

      When the district court dismisses a claim as frivolous under the Prison

Litigation Reform Act (“PLRA”) § 1915(e)(2)(B)(i), we review for abuse of

discretion. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). When

the district court dismisses under the PLRA § 1915(e)(2)(B)(ii) for failure to state

a claim, we review the decision de novo. See Perkins v. Kansas Dep’t of

Corrections, 165 F.3d 803, 806 (10th Cir. 1999). The district court did not

delineate precisely which claims it dismissed under which sections, and as the

outcome on all of the claims would be the same under either standard of review,

we will review all of Mr. Woodruff’s claims de novo.

      A claim is legally frivolous if the plaintiff asserts the violation of a legal

interest that does not exist, or asserts facts that do not support an arguable claim.

Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). Because Mr. Woodruff is

proceeding pro se, we construe his complaint liberally. Haines v. Kerner, 404

U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (1991). However,

even construing the complaint liberally, we agree with the district court that Mr.

Woodruff has failed to provide any facts on the basis of which we might find a

constitutional violation.

      On his claim of denial of access to the courts, Mr. Woodruff has not

demonstrated that failure of prison staff to provide him with his requested thirty


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sheets per day of paper has hindered him in pursuing any non-frivolous legal

claims or caused him any other prejudice. See Lewis v. Casey, 518 U.S. 343, 350-

53 (1996). On his claim for equal protection violations, he has failed to allege

that he has been treated differently from others. See Village of Arlington Heights

v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66 (1997) (requiring

allegation of disparate treatment in equal protection cases).

      Mr. Woodruff has also failed to allege facts sufficient to support his claim

of cruel and unusual punishment. Cruel and unusual punishment is defined as

punishment that “although not physically barbarous, involves the unnecessary and

wanton infliction of pain.” Clemmons v. Bohannon, 956 F.2d 1523, 1525 (10th

Cir. 1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). A prisoner

claiming that he has suffered such punishment must show officials’ deliberate

indifference to the sufficiently egregious conditions of confinement. Mitchell v.

Maynard, 80 F.3d 1433, 1441-42 (10th Cir. 1996) (citing Wilson v. Seiter, 501

U.S. 294 (1991)). Thus, a court considering a conditions of confinement claim

must ask both whether the officials acted with a sufficiently culpable state of

mind, and whether the alleged wrongdoing was objectively harmful enough to rise

to the level of a constitutional violation. Id. at 1442 (citing Hudson v. McMillian,

503 U.S. 1, 8 (1992)). Here we agree with the district court that Mr. Woodruff

has failed to allege facts showing either that the officers’ conduct towards him


                                         -4-
was objectively harmful enough to constitute a violation of the 8th Amendment or

that prison officials acted with deliberate indifference towards him.

      We deny Mr. Woodruff’s motion to proceed without prepayment of fees,

remind him he owes the unpaid balance of the filing fee, and DISMISS the

appeal. 1 When a civil action is dismissed as frivolous, it is counted as a “strike”

pursuant to 28 U.S.C. § 1915(g). Mr. Woodruff is reminded that he will be

prohibited from bringing civil actions or filing appeals if on three or more prior

occasions he has brought an action or an appeal that was dismissed as frivolous or

for failure to state a claim. Id. Based on the present action filed in the district

court and this appeal, Mr. Woodruff now has two strikes against him.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




      1
        We deny the motions Mr. Woodruff filed while this appeal was pending.
He has not met the standards for mandamus. And with respect to his multiple
motions for a temporary restraining order and preliminary injunction, we do not
consider motions based on new facts or new events asserted on appeal that were
not before the district court.

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