                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 3, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 RICHARD KIRBY,

          Plaintiff-Appellant,
 v.                                                      No. 09-2300
 ROBERT EZELL, Warden, in his                   (D.C. No. CIV-08-00659-JCH)
 official capacity; SHANNON                           (D. New Mexico)
 MCREYNOLDS, in his/her official
 and individual capacity; MAJOR
 HORTON, Operations, Lea County
 Correctional Facility; GRIEVANCE
 OFFICER BROWN, Torrance County
 Detention Center,

          Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

       Plaintiff Richard Kirby, appearing pro se and seeking to proceed in forma

pauperis, appeals the district court’s entry of judgment in favor of defendants,

various New Mexico correctional officers, on claims Kirby raised against them

pursuant to 42 U.S.C. § 1983. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we DENY Kirby leave to proceed in forma pauperis and AFFIRM the

rulings of the district court.

                                          I

       On July 15, 2008, Kirby filed a § 1983 complaint in the United States

District Court for the District of New Mexico. At that time, Kirby was

incarcerated at the Torrance County Detention Facility (“TCDF”), a privately run

correctional institution in Estancia, New Mexico. In his complaint, Kirby alleged

(1) that he had been unconstitutionally denied access to the courts by Robert

Ezell, the warden at TCDF, and Shannon McReynolds, an employee of the New

Mexico Corrections Department (“NMCD”) responsible for ensuring TCDF’s

compliance with NMCD policies and procedures; (2) that he had been transferred

between correctional facilities in violation of Fed. R. App. P. 23(a); (3) that he

had been unconstitutionally denied access to the courts by Vince Horton, the

security warden at Lea County Correctional Facility, a privately run correctional

institution in Hobbs, New Mexico; and (4) that he had been unconstitutionally

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denied access to the courts when he was forced to re-mail forty-two pieces of

what he characterized as “legal mail.” Kirby subsequently amended his complaint

to add a fifth claim, alleging that Grievance Officer David Brown of TCDF had

retaliated against him for filing his § 1983 action by having Kirby placed in

segregation.

      After Kirby’s complaint had been amended, the district court issued a

memorandum opinion and order, sua sponte dismissing Kirby’s Fed. R. App. P.

23(a) claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(b)(6). 1

The district court subsequently granted Brown’s Rule 12(b)(6) motion to dismiss

Kirby’s retaliation claim and then ordered the remaining defendants to prepare

and produce reports pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.

1978). The district court advised the remaining defendants that their Martinez

reports could be used for summary judgment purposes.

      After receiving the remaining defendants’ Martinez reports and Kirby’s

responses thereto, 2 the magistrate judge prepared a document it captioned as an

      1
       The district court subsequently denied Kirby’s request to reconsider this
dismissal.
      2
         Kirby filed a document captioned “Second Request for Extension of Time
to File a Response to the Martinez Report.” Therein, Kirby noted that “[i]f [his]
Request or Motion [was] sufficient to allow evaluation of the claims, the Court
may deem th[e] document as [his] Response.” ROA Vol. 2, at 510. The
magistrate judge’s Analysis and Recommended Disposition, which was adopted
by the district court, accepted Kirby’s invitation and construed this filing to be
both a response to the defendants’ Martinez reports and a motion for a summary
                                                                        (continued...)

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“Analysis and Recommended Disposition.” Therein, the magistrate judge

recommended (1) that Kirby’s claim that Ezell and McReynolds had denied him

access to the courts be dismissed with prejudice pursuant to Rule 12(b)(6); (2)

that Horton be granted summary judgment on the denial of access to the courts

claim that Kirby raised against him; (3) that Kirby’s claim that he was denied

access to the courts by being forced to re-mail certain documents be dismissed

with prejudice pursuant to Rule 12(b)(6); and (4) that Kirby’s Rule 56(f) motion

be denied. The district court subsequently entered an order which adopted the

magistrate judge’s recommended dispositions. In its order, the district court also

rejected Kirby’s request, made in his objections to the magistrate judge’s

Analysis and Recommended Disposition, for leave to amend his complaint to add

new claims against new defendants. Kirby then filed this timely appeal.

                                         II

                                Standard of Review

      “We review a grant of summary judgment de novo.” Annett v. Univ. of

Kan., 371 F.3d 1233, 1237 (10th Cir. 2004). In doing so, “we view the evidence

and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Id. (quotation and citation omitted). Ultimately, summary

judgment is appropriate only “if the pleadings, the discovery and disclosure


      2
      (...continued)
judgment continuance filed pursuant to Fed. R. Civ. P. 56(f).

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materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed

R. Civ. P. 56(c)(2).

      Likewise, we “review[] de novo the district court’s grant of a motion to

dismiss pursuant to Rule 12(b)(6), applying the same legal standard applicable in

the district court.” Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219,

1223 (10th Cir. 2009) (quotation and citation omitted). In doing so, we “look for

plausibility in the complaint.” Id. (quotation and citation omitted). “Under this

standard, a complaint must include enough facts to state a claim to relief that is

plausible on its face.” Id. at 1223-24 (quotation and citation omitted).

      Finally, we review for an abuse of discretion both the district court’s denial

of a Rule 56(f) motion, see Libertarian Party of N.M. v. Herrera, 506 F.3d 1303,

1308 (10th Cir. 2007), and its denial of a motion to amend a complaint, see Hayes

v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001).

                                      Analysis

      As an initial matter, we note that the district court correctly dismissed

Kirby’s Fed. R. App. P. 23(a) claim. Rule 23(a) “was designed to prevent prison

officials from impeding a prisoner’s attempt to obtain habeas corpus relief by

physically removing the prisoner from the territorial jurisdiction of the court in

which a habeas petition is pending.” Hammer v. Meachum, 691 F.2d 958, 961

(10th Cir. 1982) (quotation and citation omitted). The appeal which Kirby had

                                         -5-
pending before the Fifth Circuit at the time of his complained of transfers did not,

however, relate to a petition for a writ of habeas corpus. See United States v.

Kirby, 302 F. App’x 321, 321 (5th Cir. 2008) (per curiam). Rather, it related to a

petition for a writ of coram nobis. Id. Accordingly, the Fifth Circuit’s

jurisdiction to hear Kirby’s appeal could not have been, and indeed was not

defeated by Kirby’s transfers between correctional facilities in New Mexico. Cf.

United States v. Morgan, 346 U.S. 502, 505 n.4 (1954) (noting that a coram nobis

proceeding is “a step in the criminal case and not, like habeas corpus where relief

is sought in a separate case and record, the beginning of a separate civil

proceeding.”). Thus, Rule 23(a) is simply irrelevant to Kirby’s complained of

transfers.

      Next, we note that because Kirby has failed to plausibly allege that he has

suffered an “actual injury,” either as the result Ezell’s or McReynolds’ actions, or

as the result of the delay he experienced in sending his forty-two pieces of “legal

mail,” the district court correctly dismissed Kirby’s claims which relate to these

actions. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (“Insofar as the right

vindicated by Bounds is concerned . . . the inmate . . . must . . . demonstrate that

the alleged shortcomings in the library or legal assistance program hindered his

efforts to pursue a legal claim.”). Further, because Kirby has failed to create a

genuine issue of material fact as to Horton’s personal involvement in any alleged

denial of Kirby’s access to the courts, the district court correctly concluded that

                                          -6-
Horton is entitled to summary judgment on this claim. See Gallagher v. Shelton,

587 F.3d 1063, 1069 (10th Cir. 2009) (“Individual liability under § 1983 must be

based on personal involvement in the alleged constitutional violation.”) (quotation

and citation omitted). And finally, upon our careful review of the record, we

conclude that the district court did not abuse its discretion either in denying

Kirby’s Rule 56(f) motion, or in denying his request to amend his complaint.

                                          III

      The judgments of the district court are AFFIRMED. Kirby is DENIED

leave to proceed in forma pauperis and is ordered to make full payment of the

filing fee forthwith.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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