                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 6 2005
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MARVIN B. DAVIS, JR.,

                Plaintiff-Appellant,

    v.                                                 No. 04-3057
                                                (D.C. No. 00-CV-3051-CM)
    LOUIS BRUCE, Warden, Hutchinson                      (D. Kan.)
    Correctional Facility; PAUL WILSON,
    CCI, Hutchinson Correctional Facility;
    KATHRYN FIELDS, East Unit
    Librarian, Hutchinson Correctional
    Facility; A. (NMI) PEREZ, Unit Team
    Manager, Hutchinson Correctional
    Facility; KEITH ANDERSON, CCI,
    Hutchinson Correctional Facility;
    CHARLES SIMMONS, Secretary of
    Corrections; B. BEACH, Central Unit
    Librarian, Hutchinson Correctional
    Facility; HUTCHINSON
    CORRECTIONAL FACILITY;
    JOHNNY DAVIS, Master Sergeant;
    WILLIAM E. CUMMINGS, Inmate
    and Staff Relations,

                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      This order and judgment is not binding precedent, except under the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 LUCERO , McKAY , and PORFILIO , 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.

       Marvin B. Davis, Jr., an inmate proceeding pro se, appeals the district

court’s grant of judgment to defendants on his 42 U.S.C. § 1983 claims alleging

denial of access to the courts and retaliation for exercising his right to petition the

courts. We affirm in part and reverse and remand in part.

                                           I

       At the times relevant to this action, Mr. Davis was an inmate at the

Hutchinson Correctional Facility (HCF). In late 1999, Mr. Davis wished to seek

review of his criminal conviction from the Supreme Court of the United States.

Because he was unable to find an example of a petition for a writ of certiorari in

HCF’s law library or obtain one from legal services, Mr. Davis drafted a motion

for an extension of time to file his petition. The mailing of his motion was

apparently delayed, as it was postmarked three days after he submitted it to the

prison’s mail system, and the Supreme Court refused it as being untimely.

       Mr. Davis then filed this § 1983 action complaining about the adequacy of

HCF’s law library and certain actions of prison officials that allegedly caused him

                                          -2-
to miss his filing deadline. He requested injunctive relief to improve the law

library facilities at HCF, appointment of counsel for his legal matters, and

damages. During the litigation, the district court joined two defendants who

allegedly retaliated against Mr. Davis because he filed this action.

      On March 24, 2003, the district court granted judgment under Federal Rule

of Civil Procedure 12(b)(6) to defendants HCF, Louis Bruce, Paul Wilson, A.

Perez, and Keith Anderson (the 2003 Order) on the ground that defendants were

immune from suit by virtue of the Eleventh Amendment and the doctrine of

qualified immunity. The 2003 Order, however, did not explicitly address the

claims against another five defendants (Kathryn Fields, B. Beach, Charles

Simmons, William Cummings, and Johnny Davis). In October 2004, this court

issued an order questioning whether there was an appealable final judgment. On

January 13, 2005, the district court granted judgment to the remaining defendants

for the same reasons as articulated in the 2003 Order, and it dismissed the action

in its entirety (the 2005 Order).

                                          II

                           Eleventh Amendment Immunity

      “We review de novo the district court’s decision to dismiss this case on

Eleventh Amendment grounds and for failure to state a claim.”     Harris v. Owens ,

264 F.3d 1282, 1287 (10th Cir. 2001).


                                          -3-
       First, the district court held that HCF was immune to suit under the

Eleventh Amendment and dismissed all claims against it. This determination was

correct, as a state or a state agency is not a “person” subject to suit under § 1983.

See Will v. Mich. Dep’t of State Police    , 491 U.S. 58, 71 (1989).

       The district court also applied the Eleventh Amendment to bar all claims

against the individual defendants in their official capacities. Mr. Davis accurately

argues on appeal that the Eleventh Amendment does not prevent suits against

official-capacity defendants for injunctive relief.   See id. at 71 n.10 (citing

Kentucky v. Graham , 473 U.S. 159, 167 n.14 (1985), and       Ex Parte Young , 209

U.S. 123, 159-60 (1908)). The district court, however, correctly found that

Mr. Davis’s requests for injunctive relief were moot in light of his transfer away

from HCF. See McAlpine v. Thompson , 187 F.3d 1213, 1215 (10th Cir. 1999)

(stating that release from prison generally moots claims for injunctive relief);

Love v. Summit County , 776 F.2d 908, 910 n.4 (10th Cir. 1985) (indicating that

the general rule applies in the case of a transfer between prisons). Consequently,

the only relief available to Mr. Davis with regard to these claims would be money

damages, which the Eleventh Amendment bars him from seeking from defendants

in their official capacities.   See Hafer v. Melo , 502 U.S. 21, 30-31 (1991).

       For these reasons, we affirm the district court’s grant of judgment to HCF

and to all individual defendants in their official capacities.


                                             -4-
                                      Qualified Immunity

       The district court held that defendants, in their individual capacities, were

entitled to qualified immunity because Mr. Davis had failed to show that he was

injured by the alleged inadequacies in the law library. Mr. Davis argues that the

district court impermissibly resolved factual disputes in making its ruling. Like

the Eleventh Amendment issues, we review de novo the district court’s ruling on

a Rule 12(b)(6) motion based on qualified immunity.          Peterson v. Jensen , 371

F.3d 1199, 1202 (10th Cir. 2004).

       Our review does not indicate that the district court impermissibly resolved

factual disputes or assumed facts not in favor of Mr. Davis, or that it relied on

materials outside of the pleadings.     1
                                            The undisputed facts, viewed in the light

most favorable to Mr. Davis, do not indicate that the Supreme Court’s dismissal

of Mr. Davis’s motion resulted from the inadequacy of HCF’s law library or legal

resources or any actions or inactions of the defendants. Thus, we affirm the

district court’s grant of judgment to Mr. Bruce, Mr. Wilson, Mr. Anderson,

Mr. Perez, Ms. Fields, Ms. Beach, and Mr. Simmons on all claims against them in

their individual capacities.



1
      In any event, there would be no error even if the district court effectively
converted the Rule 12(b)(6) motion to a motion for summary judgment, as
Mr. Davis was given the opportunity to submit his own additional materials,
which he did. R. Docs. 104, 105 & Attachs.

                                               -5-
                                      Retaliation Claims

       Mr. Davis also complains that the district court did not rule on his claims of

retaliation for exercising his constitutional right of access to the courts. By order

dated June 28, 2001, the district court allowed Mr. Davis to serve William

Cummings and Johnny Davis as defendants in this action, based on Mr. Davis’s

assertions that they had retaliated against him for petitioning the courts. R. Doc.

64 at 3-4 (order allowing service);     see R. Doc. 62 at 16-19 (Mr. Davis’s

allegations).

       Inmates have a constitutional right to access the courts.   Bounds v. Smith ,

430 U.S. 817, 821 (1977). “Prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.”

Smith v. Maschner , 899 F.2d 940, 947 (10th Cir. 1990). “This principle applies

even where the action taken in retaliation would be otherwise permissible.”      Id. at

948.

       The 2005 Order grants judgment to Ms. Fields, Mr. Simmons, Ms. Beach,

Mr. Cummings, and Master Sergeant Davis “for the same reasons that the court

granted Bruce, Wilson, Anderson, and Perez’s motion to dismiss on March 24,

2003.” 2005 Order at 5. Our review of the record, however, indicates that the

2003 Order addresses only Mr. Davis’s claims of denial of access to the courts; it




                                             -6-
does not discuss his claims of retaliation.   2
                                                    Also, the 2003 Order grants judgment

to the defendants in their individual capacities based on qualified immunity, a

circumstances-specific inquiry.      See Snell v. Tunnell , 920 F.2d 673, 696 (10th Cir.

1990) (noting that qualified immunity is “fact-specific”). The qualified immunity

analysis of the 2003 Order easily applies to Ms. Fields, Mr. Simmons, and

Ms. Beach, as the allegations against them are the same denial of access

allegations the district court addressed in the 2003 Order. It does not so easily

apply to the retaliation allegations against Master Sergeant Davis and

Mr. Cummings, which are based on different facts and legal theories.

       On the record before us, then, it appears that the district court has not yet

considered Mr. Davis’s claims of retaliation. Consequently, without taking a

position on the merits of these retaliation claims, we remand Mr. Davis’s claims

for damages against Mr. Cummings and Master Sergeant Davis in their individual

capacities to the district court for its consideration in the first instance.




2
       A claim of retaliation technically is itself a claim alleging denial of the
right of access to the courts, because retaliation hampers an inmate’s ability to
exercise his right of access.  See Smith , 899 F.2d at 947-48 (citing precedent from
other circuit courts). For ease of reference, however, here we shall refer to the
“retaliation” claims as distinct from the “denial of access” claims.

                                              -7-
                                  Remaining Issues

      We have reviewed all of Mr. Davis’s remaining appellate issues.     3
                                                                              We have

found no abuses of discretion or other reversible error with regard to any of these

issues, and the district court’s decisions are affirmed.

                                          III

      Mr. Davis’s motion to proceed in forma pauperis is GRANTED. He is

reminded that he must continue making partial payments until the entire appellate

filing fee has been paid. All other pending motions are DENIED. The judgment

of the district court is AFFIRMED IN PART and REVERSED and REMANDED

IN PART for further proceedings. The mandate shall issue forthwith.

                                                      Entered for the Court


                                                      John C. Porfilio
                                                      Circuit Judge


3
       These claims challenge: the district court’s denial of Mr. Davis’s motions
to supplement, his request for injunctive relief, and his request for default
judgment; its grant of numerous extensions for defendants to file a     Martinez
report; its failure to allow Mr. Davis to correct any deficiencies in his pleadings
before ruling against him; and its failure to certify this litigation as a class action.
A purported twelfth issue, that defendants retaliated against Mr. Davis by
“switch[ing] out affidavits, thus stealing them in violation of access to the
courts,” Aplt Br. at 10, is not further explained on appeal nor shown to have been
presented in the district court. Thus, it is waived.   See United States v. Hardwell ,
80 F.3d 1471, 1492 (10th Cir. 1996) (holding that argument is waived when
appellant fails to make an argument or to cite any authority in support of a claim);
In re Walker , 959 F.2d 894, 896 (10th Cir. 1992) (holding that this court generally
will not consider an issue that was not before the trial court).

                                          -8-
