F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                            February 1, 2006
                        FOR THE TENTH CIRCUIT             Elisabeth A. Shumaker
                                                              Clerk of Court


WESLEY I. PURKEY,

            Plaintiff-Appellant,

v.                                             No. 05-3126
                                        (D.C. No. 01-CV-3134-JAR)
LEROY GREEN, Sheriff of                          (D. Kan.)
Wyandotte County, Kansas; J. B.
HOPKINS, Administrator of
Wyandotte County Jail; FLOYD
GARDNER, Classification
Administrator, Wyandotte County Jail;
HUGH BOND, Major of Security,
Wyandotte County Jail; JONI
“MUMMA” COLE, Program Director,
Wyandotte County Jail; TAMMY
ELLIOTT, Administrative Personnel,
Wyandotte County Jail; DELORES L.
HERRING, Administrative Personnel,
Wyandotte County Jail; (FNU)
DAVIS, Lieutenant/Internal Affairs,
Wyandotte County Jail; (FNU)
PIERCE, Sergeant/Security Personnel,
Wyandotte County Jail; F. ARNOLD,
Security Personnel, Wyandotte County
Jail; MICHAEL DAILEY, Wyandotte
County Jail; KARLA HARRIS;
CHARLES DUNLAY; LOREN
GRIFFIN; MICHELE SESE; TYRONE
DAVIS, Deputy Sheriff,

            Defendants-Appellees.
                          ORDER AND JUDGMENT *


Before HENRY, McKAY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      In this pro se prisoner civil rights action, Wesley Purkey appeals from a

district court’s summary judgment order. We affirm.

                                  B ACKGROUND

      In October 1998, Purkey was booked into the Wyandotte County Jail on

murder and parole-violation charges. He was initially assigned to “F-pod,” the

jail’s maximum custody unit, given the seriousness of the charges, his escape

history, and his criminal history, but later given an “override[ ]” to minimum

custody for good behavior. Dist. Ct. Record (R.) doc. 45 at 2. In December

1998, Purkey submitted several inmate communication forms (ICFs), claiming

that he had been struck by a milk carton thrown by Deputy Sheriff Tyrone Davis


*
      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.

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and that Davis had later complained about Purkey to inmates, who offered to

“take care of this.” R. doc. 91 at 12. Davis rebuffed the offer, stating “No, the

hole is full now.” 

and November 1999, a classification technician assisted Purkey

in obtaining photocopies of proposed civil rights complaints. In doing so, the

technician placed a copy of one of the complaints in Purkey’s classification file

and consulted a county counselor regarding copying the other complaint.

      Purkey sued the Wyandotte County Sheriff and numerous jail personnel,

alleging, among other things, denial of access to courts, indifference to medical

needs, excessive force, incitement to violence, and retaliation for submitting ICFs

and filing lawsuits. The district court dismissed Purkey’s lawsuit for failure to

state a claim. This court affirmed in part, but reversed in part and remanded

regarding the excessive force and incitement claims and portions of the

indifference and retaliation claims. Purkey v. Green, 28 Fed. Appx. 736

(10th Cir. Aug. 17, 2001) (unpublished).

      In January or February of 2000, Purkey lost his override to minimum

custody and was moved to F-pod after he became “verbally abusive with the

physician and nurses in the infirmary.” R. doc. 45 at 2. On February 18, 2000,

Purkey was transferred to the infirmary for observation, complaining of stressful




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conditions in F-pod. 1 The following day, Purkey refused to return to F-pod and

was placed in the jail’s B-2 segregation unit.

      Because some inmates in B-2 had “flooded their cells by stopping up their

toilets,” R. doc. 45 at 6, the jail administrator, on March 3, 2000, ordered the

“water line to the commode of each cell in B2 . . . turned off 23 hours a day,”

R. doc. 45, Aff. of James Eickhoff, Ex. A. On occasion, inmates had also

“smear[ed] feces on walls and other surfaces in their cells.” R. doc. 45, Aff. of

James Eickhoff at 1. While in the B-2 unit, Purkey filed numerous ICFs,

complaining of unsanitary conditions, no cleaning supplies, the water restriction,

his loss of commissary privileges, and being forced to shower in restraints.

Although jail personnel had informed Purkey that he could leave B-2 at any time

and return to F-pod, Purkey protested, stating that “due to the confrontational and

escalating nature in F-pod, I chose [sic] not to continue to deal with the

violence,” R. doc. 51, Ex. 32. On March 27, Purkey was restrained and carried by

the “S.O.R.T. team” back to F-pod. R. doc. 45 at 4.




1
      In an ICF, Purkey noted “extreme problems from inmates who were
involved in the incident stemming from November 31, 1998 - and now I am
having to deal with their gang banger bullies 14 or 15 of them - I have already
had 2 fights with them.” R. doc. 1, Ex. 5.

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      The following two days, on March 28 and 29, Purkey submitted ICFs,

stating that he had been “jumped on . . . by several gangbangers.” R. doc. 51, Ex.

73. In an April 4 ICF, Purkey reported that “a sequence of problems with

different gang members is happening which originally stem[s] from the 1st

incident with officer Davis.” 

On April 12, Purkey was removed from

F-pod and placed in protective custody. Several weeks later, Purkey was turned

over to the Kansas Department of Corrections after pleading guilty to murder and

aggravated robbery.

      Subsequently, Purkey filed another civil rights complaint against the

Wyandotte County Sheriff and numerous jail personnel. The district court

directed the defendants to submit a Martinez report, consolidated Purkey’s two

lawsuits, and appointed counsel for Purkey. After the defendants moved for

summary judgment, Purkey’s attorney withdrew, citing “differences as to how to

proceed.” R. doc. 92 at 1. Purkey filed a pro se opposition to summary judgment.

Therein, Purkey expressly abandoned his medical indifference and excessive force

claims. Consequently, all that remained from Purkey’s first lawsuit were his

claims that Deputy Sheriff Davis had incited other inmates to harm him and that

he suffered retaliation for attempting to file suit against jail employees. Purkey

described the claims from his second lawsuit as deriving from various defendants




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(1) screening his lawsuits before photocopying them, (2) placing a copy of his

lawsuit in his classification file, (3) confining him in the

B-2 unit without due process and in retaliation for submitting ICFs and filing

lawsuits, (4) maintaining unconstitutional conditions in B-2, and (5) forcing him

back to F-pod without regard to his safety. Purkey also sought summary judgment

on several of his claims.

      The district court granted the defendants summary judgment and denied

Purkey summary judgment. Purkey appeals.

                                     D ISCUSSION

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Garrison v. Gambro,

Inc., 

, 935 (10th Cir. 2005). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “When applying this standard, we view the evidence

and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Grace United Methodist Church v. City of Cheyenne,

, 782 (10th Cir. 2005) (quotation omitted).




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      Purkey argues that the district court erred in eight respects: (1) weighing

evidence and making credibility determinations; (2) penalizing him for not

complying with local rules; (3) analyzing his due process claim under Sandin v.

Conner, 

, 484 (1995) (holding that atypical and significant hardships

imposed against a convicted prisoner implicate due process), rather than Bell v.

Wolfish, 

, 535 (1979) (holding that punitive conditions of pretrial

confinement implicate due process); (4) concluding that even if confinement in

the B-2 unit violated due process, jail personnel were entitled to qualified

immunity; (5) concluding that the conditions in B-2 did not violate the Eighth

Amendment; (6) concluding that even if Deputy Davis’ conduct constituted

incitement to violence, qualified immunity was available; (7) concluding that even

if jail personnel were deliberately indifferent to Purkey’s safety when they moved

him back to F-pod, qualified immunity was available; and (8) finding no First

Amendment violation in the handling of Purkey’s photocopied legal documents.

We have reviewed the district court’s summary judgment order in light of these

arguments and find no reversible error.

      Accordingly, we AFFIRM for substantially the same reasons stated by the

district court, and we remind Mr. Purkey of his continuing obligation to make

partial payments until he has paid the filing fee in its entirety, see 28 U.S.C.

§ 1915(b).


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      Entered for the Court


      Robert H. Henry
      Circuit Judge




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