F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 6 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM EARL TUCKER and
WILLIAM FRANK SCHLICHER,
Plaintiffs-Appellants,
No. 96-3015
v. (D.C. No. 95-CV-3527)
(D. Kan.)
GOVERNOR BILL GRAVES,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO, EBEL, 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 appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of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.
Plaintiffs William Earl Tucker and William Frank Schlicher, appearing pro
se and in forma pauperis, 1 appeal from the district court’s dismissal of their civil
rights action filed under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C.
§ 1291, and affirm.
Plaintiffs are Kansas state inmates housed in different facilities. They
challenge a prison policy, effective January 1, 1996, that prohibits
interinstitutional mail except between immediate family members. Plaintiffs
allege in a conclusory fashion that they are co-plaintiffs in one or more lawsuits
pending in other courts and have a need to correspond with each other to advance
1
The district court denied plaintiffs’ motion to proceed in forma pauperis on
appeal, certifying that the appeal was legally frivolous and not taken in good
faith. Plaintiffs then filed a motion to proceed in forma pauperis on appeal in this
court.
Because plaintiffs filed their notice of appeal on January 5, 1996, before
the enactment of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134,
110 Stat. 1321 (Apr. 26, 1996), the amended standard for granting in forma
pauperis status under 28 U.S.C. § 1915 does not apply. See White v. Gregory, 87
F.3d 429, 430 (10th Cir.), cert. denied, 117 S. Ct. 528 (1996). We therefore
determine plaintiffs’ motion to proceed in forma pauperis on appeal under the old
standard; that is, based on whether they have raised “‘a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal.’” Id.
(quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Under
this standard, we grant plaintiffs’ motion to proceed in forma pauperis on appeal.
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this other litigation. They seek, among other relief, declaratory and injunctive
relief, and the convening of a three-judge panel.
The district court read the complaint as asserting a general right among
prison inmates, wherever housed, to assist each other in litigation. Because it has
already been decided that states may impose reasonable restrictions on the giving
and receiving of legal assistance between inmates, see Johnson v. Avery, 393 U.S.
483, 490 (1969); Wilkerson v. Warden of U.S. Reformatory, 465 F.2d 956, 957
(10th Cir. 1972); McCarty v. Woodson, 465 F.2d 822, 825 (10th Cir. 1972), the
district court, sua sponte and before service of the complaint, dismissed plaintiffs’
complaint on the basis that it failed to state a claim.
We review a dismissal under Fed. R. Civ. P. 12(b)(6) de novo, applying the
same standard as the district court. See National Commodity & Barter Ass’n v.
Gibbs, 886 F.2d 1240, 1243-44 (10th Cir. 1989). Under this standard, the
dismissal of plaintiffs’ complaint was proper if, taking all well-pleaded
allegations as true and construing them in the light most favorable to plaintiffs, it
is clear that they can prove no set of facts entitling them to relief. See id. at
1244.
Although we read the complaint as raising a more specific access to the
courts issue than did the district court, we affirm the district court’s dismissal
with prejudice. Whether a state prison system’s ban on mail between inmates
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housed in separate facilities who are co-plaintiffs to litigation and also pro se
impinges the inmates’ right of access to the courts is an issue of first impression
in this circuit--or, indeed, in any circuit, as far as we have been able to determine.
Nevertheless, to make such a claim, plaintiffs must demonstrate an actual injury
to pending or contemplated litigation resulting from the prison’s prohibition of
such mail. See Lewis v. Casey, 116 S. Ct. 2174, 2179-82 (1996). 2 Plaintiffs have
made only general and conclusory allegations of injury, even though they were
put on notice of the deficiency by defendant’s response brief, see Appellee’s
Response Br. at 6-7, and both filed a reply brief. 3 “[C]onclusory allegations
without supporting factual averments are insufficient to state a claim on which
relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We
2
The Supreme Court held in Lewis v. Casey that the doctrine of standing
establishes, as a prerequisite to an access to the courts claim, that an inmate must
demonstrate an actual injury to pending or contemplated litigation attacking his
sentence or challenging the conditions of his confinement. See 116 S. Ct. at
2179-82. Therefore, Ruark v. Solano, 928 F.2d 947 (10th Cir. 1991), in which
this court held that some access to the courts claims are “not conditioned on a
showing of need,” id. at 950, is effectively overruled on this point, as are
subsequent cases that followed Ruark on this point. See, e.g., Beville v. Ednie,
74 F.3d 210, 212-13 (10th Cir. 1996); Housley v. Dodson, 41 F.3d 597, 598-99
(10th Cir. 1994). On the other hand, Lewis reaffirms our holdings in such cases
as Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996), and Green v. Johnson, 977
F.2d 1383, 1389-90 (10th Cir. 1992), that to maintain an access to the courts
claim, an inmate must show that denial or delay of access to the courts hindered
his pursuit of nonfrivolous litigation.
3
In Mr. Tucker’s case, a reply brief three times the maximum page limit
allowed by Fed. R. App. P. 28(g) without this court’s permission. Since it is filed
in violation of our rule, it is stricken.
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therefore conclude that allowing plaintiffs an opportunity to amend their
complaint would be futile, and that their challenge to the district court’s dismissal
of their access to the courts claim must fail.
Plaintiffs’ separation of powers argument is without merit.
Plaintiffs’ motion to proceed in forma pauperis on appeal is GRANTED.
Plaintiff Tucker’s reply brief filed February 5, 1997, is STRICKEN. The
judgment of the United States District Court for the District of Kansas is
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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