F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 18 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
DARRYL WAYNE MANCO,
Plaintiff-Appellant,
v.
No. 96-3312
DAVID R. MCKUNE, Warden; (D.C. No. 94-CV-3378)
DOUGLAS FRIESZ, Major; ROBERT B. (District of Kansas)
PAYNE, SR., Captain; and JOHN W.
RUTLEDGE, Unit Team,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, 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This order and judgment is not binding precedent, except under the doctrines of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. This 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.
This is an appeal from the dismissal of a pro se prisoner’s action filed under 42
U.S.C. § 1983. The original complaint filed by plaintiff Manco asserted three separate
claims, but, on appeal, he attacks only the dismissal of his Eighth Amendment claim that
he was deprived of shoes and forced to walk in snow and ice for six and a half days. The
district court granted summary judgment to the defendants because its review of the
papers filed by them in support of their motion for summary judgment as well as Manco’s
responding documents disclosed no facts that would support the complaint.
Defendants’ Martinez report disclosed that as Manco claimed upon his release
from segregation he was without shoes, but he was told to report to “Admissions and
Discharge” [A&D] with a copy of his property inventory to obtain new shoes. Manco
arrived at A&D without the inventory and was advised he could not obtain new shoes
without the document. Although Manco became upset by that refusal, he was issued and
accepted used boots. This same transaction, with the same results, was repeated days
later. Manco was also twice placed on “call out” to obtain new boots, but he did not
respond. Ultimately, he received new boots.
Although the Martinez report is supported by documentation, Manco’s response
contains only his unsupported statements. Even so, Manco does not deny he received two
pairs of used boots or that he was told all he had to do to obtain new boots was to bring to
A&D a copy of his property inventory. Although he asserts he was not called out to
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receive the boots, copies of the call out sheet unequivocally show his name appears twice
for A&D.
In short, then, the uncontroverted facts clearly demonstrate that contrary to his
claim, Manco was not deprived of adequate footwear. Indeed, the most his proof
indicates is that the prison authorities demanded he comply with procedure and that he
failed to do so. As the district court noted, this evidence falls far short of showing he was
subjected to unnecessary and wanton infliction of pain of a sort prohibited by the Eighth
Amendment.
It is clear the district court did not err in its disposition. Furthermore, we conclude
this appeal is frivolous within the meaning of 28 U.S.C. § 1915(e)(2)(B)(i) and DISMISS
it. This dismissal counts as a “prior occasion” under 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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