F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
LEO SCOTT,
Plaintiff-Appellant, No. 03-1252
v. (D.C. No. Civil No. 03-Z-723)
INMATE ACCOUNTS - DOC; CASE (D. Colorado)
MANAGER WATKINS; VICKIE
BUTTS, Adm. Asst. III; STAN RONI;
ANTHONY A. DeCESARO; and
DOC/CCF STAFF,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , Circuit Judges.
Plaintiff pro se Leo Scott is a prisoner in the custody of the Colorado
Department of Corrections (DOC). On April 24, 2003, he filed a complaint under
42 U.S.C. § 1983, naming as Defendants the DOC Inmate Accounts department
*
After examining the brief 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and several prison employees—Case Manager Watkins, Vickie Butts, Stan Roni,
Anthony DeCesaro, and the staff of the Centennial Correctional Facility. Plaintiff
alleged that he was prevented from spending 50 percent of his inmate wages to
buy hygiene items and writing supplies from the prison canteen; that prison
employees verbally harassed him because he was gay; and that prison employees
“refused grievances” about the harassment. Dist. Ct. R., Doc. No. 3, at 5. The
district court ruled that Plaintiff’s claims were legally frivolous and dismissed his
complaint in an order entered May 14, 2003. Plaintiff now appeals the district
court’s decision. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
In dismissing the complaint, the district court relied on 28 U.S.C.
§ 1915(e)(2)(B)(i), which applies to suits filed by prisoners proceeding in forma
pauperis. The provision directs courts to “dismiss [a] case at any time if the court
determines that . . . the action or appeal . . . is frivolous or malicious.” 28 U.S.C.
§ 1915(e)(2)(B)(i). The United States Supreme Court has held that “[b]ecause the
frivolousness determination is a discretionary one, . . . a § 1915(d) dismissal is
properly reviewed for an abuse of that discretion . . . .” Denton v. Hernandez,
504 U.S. 25, 33 (1992). In light of subsequent statutory amendments, this court
has “question[ed] whether abuse of discretion is now the correct standard to
apply” and suggested that “a determination of frivolousness may now be subject
to de novo review . . . .” Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *4
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n.2 (10th Cir. Dec.8, 1998) (unpublished disposition). Here, the distinction
between the two standards of review is of no consequence, because we would
reach the same result regardless of whether we applied a de novo standard or an
abuse of discretion standard.
The district court noted that Plaintiff had not identified the constitutional
basis for his claims. Because the Eighth Amendment is “the explicit textual
source of constitutional protection in the prison context,” Adkins v. Rodriguez, 59
F.3d 1034, 1037 (10th Cir. 1995) (internal quotation marks and citation omitted),
the court determined that Plaintiff’s claims should be construed as arising under
the Eighth Amendment. United States Supreme Court “cases have held that a
prison official violates the Eighth Amendment only when two requirements are
met”—“the deprivation alleged must be, objectively, sufficiently serious,” and the
prison official must have exhibited “deliberate indifference to inmate health or
safety. . . .” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation
marks deleted).
Against this legal framework, the district court considered Plaintiff’s claim
that prison employees had verbally harassed him and made jokes about his being
gay. The district court concluded that this claim should be dismissed as “legally
frivolous because verbal harassment, without more, does not state an arguable
constitutional claim.” Dist. Ct. R., Doc. No. 4, at 3 (citing, inter alia,
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Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992) (noting that among
the actions “necessarily excluded from the cruel and unusual punishment
inquiry . . . are verbal threats and harassment.”)).
The district court next addressed Plaintiff’s claim that he was prevented
from spending 50% of his inmate pay to buy hygiene products and writing
supplies from the prison canteen, for a period of two months. The district court
observed that the prison employees’ written responses to Plaintiff’s grievances,
attached as exhibits to the complaint, show that he was not denied these funds.
Rather, his inability to use the funds for the two months in question stemmed
from the timing of his attempted purchases. In order to use 50% of their pay to
buy items from the canteen, inmates must make their purchases relatively early in
the month. Otherwise, the money is applied toward medical and other expenses.
Plaintiff had apparently failed to spend his funds early in the month. The district
court concluded that the facts alleged by Plaintiff did not “rise to the level of an
Eighth Amendment violation . . . .” Dist. Ct. R., Doc. No. 4, at 4.
The district court did not specifically discuss Plaintiff’s apparent claim that
prison employees refused to allow him to file grievances concerning the alleged
verbal harassment. But the district court’s analysis regarding the merits of the
harassment claim encompasses the grievance claim as well. If the harassment
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itself implicated no constitutional right, we fail to see how interference with his
grieving such harassment would constitute a constitutional violation.
As a final matter, we note that in his Motion for Leave to Proceed on
Appeal without Prepayment of Costs or Fees, Plaintiff refers to having his “first,
8th, and 14th amendment rights . . . violated.” Motion at 3. The district court did
not discuss the First and Fourteenth Amendments in its order, because Plaintiff
had not specified the constitutional grounds for his claims, and the court
“construe[d] . . . his claims in this action as being asserted pursuant to the Eighth
Amendment.” Dist. Ct. R., Doc. No. 4, at 2. We believe that it was reasonable
for the district court to construe Plaintiff’s complaint as asserting Eighth
Amendment claims. This court has employed an Eighth Amendment analysis to
evaluate claims alleging verbal harassment, see, e.g., Adkins, 59 F.3d 1034, and
claims alleging the denial of hygiene items, see, e.g., Penrod v. Zavaras, 94 F.3d
1399, 1406 (10th Cir. 1996). Plaintiff’s allegation that prison employees
interfered with his effort to file grievances could theoretically raise First or
Fourteenth Amendment concerns. As we have explained, however, Plaintiff does
not appear to assert this as a claim distinct from his harassment claim.
Having considered the briefs and record in this case, we conclude that the
district court was correct in dismissing Plaintiff’s complaint as frivolous.
Therefore, for substantially the same reasons set forth in the district court’s order
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of May 14, 2003, we AFFIRM the dismissal of Plaintiff’s complaint under 28
U.S.C. § 1915(e)(2)(B)(i). In addition, we note that Plaintiff has applied to
proceed without prepayment of the appellate filing fee. This motion is DENIED,
and Plaintiff is ordered to make immediate payment of the unpaid balance due.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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