Walker v. Wilkerson ( 2009 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    February 6, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                      Clerk of Court
    ARTHUR WINKFIELD WALKER, JR.,
    Plaintiff-Appellant,
    No. 08-6217
    v.
    (D.C. No. 5:08-CV-00603-HE)
    (W.D. Okla.)
    CATHY WILKERSON, Department Of
    Corrections General Counsel,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.
    Arthur Winkfield Walker, Jr., an Oklahoma state prisoner proceeding pro
    se, appeals the dismissal of his 
    42 U.S.C. § 1983
     civil rights complaint against
    Cathy Wilkerson, general counsel for the Oklahoma Department of Corrections
    (“DOC”). Walker claims that Wilkerson violated his federal due process right to
    access to the courts by denying his request for a copy of an unpublished court
    *
    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    judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
    decision not available in the prison library. 1 Exercising its screening function
    under 28 U.S.C. § 1915A(a), the district court dismissed his complaint for failure
    to state a claim, § 1915A(b)(1). 2 We agree that Walker has failed to state a claim,
    and because this appeal is frivolous, we dismiss.
    To state a claim of denial of access to courts, an inmate must allege some
    prejudice caused by the denial. Lewis v. Casey, 
    518 U.S. 343
    , 351 (1996).
    Where the basis of the complaint is the denial of legal resources, he must allege
    that this denial “hindered his efforts to pursue a legal claim.” 
    Id.
     In his
    complaint, Walker asserted without further explanation that he “is alleging actual
    injury,” and that Wilkerson’s refusal “imped[ed] on [his] rights to attack his
    sentence on [state court] appeal.” In his appellate brief in this court, he adds that
    the unpublished decision he requested from Wilkerson “could be the one case that
    persuades the Oklahoma Court of Criminal Appeals to reverse and remand my
    guilty pleas.”
    1
    Walker also alleges that Wilkerson’s actions violated DOC policy and
    Oklahoma state law. The district court properly dismissed these claims on the
    basis that § 1983 provides a cause of action only for violations of federal law.
    See Jones v. City & County of Denver, 
    854 F.2d 1206
    , 1209 (10th Cir. 1988)
    (“Section 1983 does not . . . provide a basis for redressing violations of state law,
    but only for those violations of federal law done under color of state law.”).
    2
    Because the district court dismissed the complaint pursuant to its
    screening function, Wilkerson was never served below and does not appear before
    us on appeal.
    -2-
    We agree with the district court that these conclusory and speculative
    allegations are not sufficient to state the required element of prejudice. See Fed.
    R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 
    127 S. Ct. 1955
    , 1964-65 (2007)
    (“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief
    requires more than labels and conclusions, and a formulaic recitation of the
    elements of a cause of action will not do.” (quotations omitted)). Walker has not
    alleged that he was unable to file his appeal from his plea and sentence without
    the requested document, nor has he claimed that he filed such an appeal but lost
    some argument because of his lack of access to that document. See Lewis, 
    518 U.S. at 351-53
    . Although pro se complaints are liberally construed, we “will not
    supply additional factual allegations to round out a plaintiff’s complaint.”
    Whitney v. New Mexico, 
    113 F.3d 1170
    , 1174-75 (10th Cir. 1997). Lacking any
    factual allegation of actual, non-speculative harm to a pending or potential legal
    claim, Walker’s complaint cannot survive dismissal and this appeal is frivolous
    pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(i). Accordingly, we DISMISS the appeal.
    Dismissal of Walker’s appeal as frivolous counts as a strike against him, as
    does the district court’s dismissal of his complaint. See Jennings v. Natrona
    County Det. Ctr. Med. Facility, 
    175 F.3d 775
    , 780 (10th Cir. 1999). Thus,
    Walker has accumulated two strikes for purposes of the filing restrictions set out
    in 
    28 U.S.C. § 1915
    (g). We DENY Walker’s request to proceed in forma
    -3-
    pauperis on appeal and remind Walker that he is responsible for the immediate
    payment of any unpaid balance of his appellate fees.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -4-
    

Document Info

Docket Number: 08-6217

Judges: Lucero, Anderson, Tymkovich

Filed Date: 2/6/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024