Thompson v. Gibson, (10th Cir. 2001)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY D. THOMPSON,

Plaintiff - Appellant,

v.



GARY L. GIBSON,

Defendant - Appellee.

No. 01-7000

(D.C. No. 99-CV-516-S)

(E.D. Okla.)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before EBEL,
name="9">KELLY, and LUCERO, Circuit

Judges.

Appellant Terry Thompson, an Oklahoma state prisoner, appears before

this Court pro se seeking review of the district court's dismissal of his 42 U.S.C. § 1983 civil rights action Exercising jurisdiction pursuant to 28 U.S.C. §

1291,

we affirm.

I

As best we can surmise, the facts are as follows. On July 27, 1998,

appellant perfected his state post-conviction proceeding application in state court.

After multiple additional filings by appellant, the state finally responded to

appellant's post-conviction application on March 10, 1999. Shortly thereafter, on

April 6, 1999, appellant filed a reply to the state's response.

Frustrated with the length of time the state court was taking in assessing

his post-conviction application, appellant sought to file a petition for writ of

mandamus in the state court. Appellant received a letter dated July 8, 1999, from

the clerk of the Tulsa County courthouse informing him that his petition had been

received and filed that day and that the clerk was "confused by the summons and

did not issue or serve it." (R. Doc. 10 Ex. D.) The letter further explained that

the clerk was under the impression that appellant wanted to file a criminal suit,

not a civil one, and that summonses are not employed in criminal suits.

Additionally, the letter stated that although "our office can issue a summons for

you, we do not serve them." (Id.) Thompson promptly wrote back, and in a

letter of July 19, 1999, he informed the clerk that he wished the mandamus

petition to be filed "into the records of the civil court procedure" and that he

needed the clerk to issue a summons. (Id. Ex. E.) The clerk responded two days

later, informing appellant that he needed to complete a pauper's affidavit,

enclosing the proper forms for his completion, and directing him to the Oklahoma

Pleading Code, Okla. Stat. Ann. tit. 12, §§ 2001 et seq., for assistance in

litigating his case.

On August 2, 1999, appellant's petition for writ of mandamus was filed

with the Tulsa County district court. Seven days later, on August 9, 1999,

appellant submitted the petition for writ of mandamus, along with the summonses

issued by the court, to the mail room at the Oklahoma State Penitentiary ("OSP")

and requested that they be sent out by certified mail. According to appellant, the

mail room denied his request for use of certified mail, informed him the

documents would be sent by first class mail, and sent him a "verbal message

stating that there will be a legal showing upon the penitentiary mail log, that the

petitions were mailed." (R. Doc. 2 at 4.) After a series of grievances and

requests to staff filed by appellant asserting his need for certified mail and a

series of responses by prison officials informing appellant, essentially, that the

relevant prison regulation does not provide for free certified mailing privileges in

appellant's circumstances, appellant brought the instant suit in federal district

court against Gary Gibson, OSP Warden, in his individual or official capacity

alleging violations of his constitutional rights. Specifically, he alleged that (1)

defendant deliberately denied him meaningful access to the courts in violation of

his rights under the Eighth Amendment(1)

and (2) defendant discriminated against

appellant on the basis of his indigent status in violation of his right to equal

protection under the Fourteenth Amendment.

In an October 2000 order, the federal district court for the Eastern District

of Oklahoma dismissed appellant's case as frivolous pursuant to 28 U.S.C. § 1915(e) because appellant failed to allege actual injury and his complaint was

vague and conclusory. The court also held that appellant's claims against the

defendant in his official capacity were barred by the Eleventh Amendment. It is

the federal district court's dismissal of appellant's civil constitutional action that

is at issue in the instant appeal.

II

In this Court, appellant argues (1) that the district court deprived him of

due process of law and (2) that the district court abused its discretion in

dismissing his case as frivolous.

Appellant's first claim arises from appellee's failure to file a response to

appellant's Summary Judgment motion of October 24, 2000, and the district

court's alleged failure to consider appellee's lack of response in the proper light

according to Federal Rule of Civil Procedure 56(e). This argument is meritless.

By its express terms, Rule 56(e) does not require a response from the adverse

party in every instance. The Rule states, "If the adverse party does not so

respond, summary judgment, if appropriate, shall be entered against the adverse

party." Fed. R. Civ. P. 56(e) (emphasis added). In other words, even if the

adverse party does not respond, summary judgment in favor of the moving party

may still be inappropriate. Moreover, in its order dismissing appellant's

complaint, the court explicitly noted that the action was before it "on defendant's

motion to dismiss, plaintiff's motion for summary judgment, and the court's own

motion to consider dismissal of the case as frivolous under 28 U.S.C. § 1915."

(R. Doc. 12 at 1.) Five months before appellant filed his summary judgment

motion, appellee filed a motion to dismiss. It was upon this earlier motion and

the court's own motion that appellant's suit was dismissed. As a matter of basic

civil procedure, in order for a court to rule on a summary judgment motion, the

suit must first make it past the pleadings stage. Because appellant's suit was

dismissed on the pleadings, the court did not violate appellant's rights by

allegedly failing to handle the summary judgment motion and appellee's lack of

response to such motion.

Regarding appellant's second claim, we first note that we review the

district court's dismissal for failure to state a claim upon which relief can be

granted de novo. Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001).
href="#N_2_a" name="txt2a">(2)

Employing that standard, we affirm the district court's dismissal of appellant's

suit. Appellant argues, inter alia, that he was denied access to the courts because

under Okla. Stat. Ann. tit. 28, § 152, indigent inmates are permitted to litigate

without costs and thus the court clerk should have served his summons for him.

Additionally, appellant claims that appellee hindered his efforts to seek

meaningful access to court by failing to inform him of his options--i.e., the

option to seek a court order stating that he needed certified mail to serve the

defendants--and that appellee discriminated against appellant on the basis of his

indigent status.

In order to state a claim for denial of access to the courts and means to

effectuate such access in violation of the Constitution, Bounds v. Smith, 430 U.S.

817, 828 (1977), a prisoner must demonstrate actual injury, Lewis v. Casey, 518

U.S. 343, 349 (1996). After carefully reviewing the record and appellant's brief,

it appears that his asserted injuries are delay in access to the courts and inability

to effectuate proper service by mail according to Okla. Stat. Ann. tit. 12,

§ 2004(C)(2). We conclude the delay was due in large part to appellant's own

actions. Although it is true the court clerk informed appellant she would not

serve his summons, she told him this when she thought he was trying to file the

mandamus petition in his criminal action. Despite the fact that the clerk later

informed appellant his pauper's affidavit was deficient and sent him the proper

forms to complete, the record does not show he completed those forms so as to

establish his indigence for purposes of § 152. Instead, appellant apparently

resorted prematurely to the OSP grievance procedure--this is neither the fault of

the clerk nor of appellee. Appellant also fails to allege actual injury from

appellee's refusal to mail his summons from the petition for mandamus by

certified mail. He does not allege--and the record does not establish--that

service by first class mail was actually ineffective, nor that defendant challenged

the summons as ineffective because it was served via first class mail instead of

certified mail.

III

We have liberally construed plaintiff's pro se briefs and the record before

us; like the district court, we are unable to conclude plaintiff alleged actual injury

sufficient to support his claim of denial of access to the courts. We therefore

AFFIRM the district court's dismissal of appellant's § 1983 suit.
href="#N_3_a" name="txt3a">(3) Finally, we

remind appellant that he is obligated to continue making partial payments on his

costs and fees pursuant to the district court's February 9, 2001, order.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. The case is unanimously ordered submitted

without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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.

1. Appellant listed as a separate count

emotional injuries from his denial of

access to the courts in violation of the Eighth Amendment.

2. Appellant's statement of the issue

indicates his belief that we review the

district court's decision for an abuse of discretion. The de novo standard of

review provides appellant with a greater chance for relief.

3. Because we affirm the district court's

dismissal of appellant's complaint

as vague and conclusory, we need not address whether the Eleventh Amendment

bars appellant's suit against appellee in his official capacity.

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