FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        May 21, 2012
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT


 CHARLES A. BURNETT,
                Plaintiff–Appellant,                   Nos. 12-3014 & 12-3016
           v.                                     (D.C. Nos. 5:10-CV-03180-SAC &
                                                        5:10-CV-03194-SAC )
 STATE OF KANSAS; JOHN                                        (D. Kansas)
 CALHOON, Sheriff, Atchison County
 Jail; TRAVIS WRIGHT, Captain,
 Atchison County Jail; FNU LNU (1),
 Nurse, Atchison County Jail; FNU LNU
 (2), Doctor, Atchison County Jail;
 MARTIN ASHER, Judge, Atchison
 County Courthouse; GERALD
 KUCKELMAN, Prosecutor, Atchison
 County Courthouse; TERRY KELLEY,
 Detective, Atchison Police Station;
 KURIS PAGE, Officer II, Atchison Police
 Station,
                Defendants–Appellees.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY, and HOLMES, Circuit Judges.



       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of these


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
consolidated appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore ordered submitted without oral argument.

       In separate appeals, which we consolidate for purposes of disposition, Plaintiff

Charles A. Burnett, a pro se Kansas state prisoner, challenges dismissal of his 42 U.S.C. §

1983 prisoner complaints. In his complaints, Plaintiff alleged mistreatment during his

pretrial confinement in the Atchison County jail. In the first complaint, Plaintiff alleged

he was not provided adequate medical care, underwear, hygiene supplies, or legal

resources; prison officials opened his mail; and officials compromised his safety by

placing in his cell a prisoner who had allegedly robbed Plaintiff’s home. Defendants in

this first complaint are the county sheriff, a captain at the county jail, and an unidentified

nurse and doctor at the county jail. Plaintiff’s second complaint alleged violation of the

Fourteenth Amendment on the basis of race by the State of Kansas and an Atchison

County judge, prosecutor, detective, and police officer.

       In both cases, the district court entered an order for Plaintiff to show cause why the

complaints should not be dismissed for failure to state a claim. With regard to the first

complaint, the district court concluded that “Plaintiff’s disagreement with the medical

care provided, and his charges of negligence and medical malpractice, do not plausibly

support a finding of deliberate indifference by any defendant and thus are insufficient to

state a cognizable constitutional claim.” (No. 12-3014, R. at 55.) See Perkins v. Kan.

Dep’t of Corr., 

, 811 (10th Cir. 1999). As to the temporary lack of

underwear and hygiene supplies, the district court held “the Eighth Amendment is not

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implicated by mere allegations of discomfort or temporary adverse conditions posing no

risk to a prisoner’s health and safety.” (No. 12-3014, R. at 57.) See Hudson v.

McMillian, 

, 9 (1992). Regarding Plaintiff’s complaint of being denied access

to legal resources, the district court held the allegation insufficient to state a constitutional

claim because Plaintiff was represented by counsel and showed no prejudice resulting

from the denial of his request for legal materials. As for Plaintiff’s mail, the district court

held the isolated instance of Plaintiff’s mail being opened was insufficient to establish a

constitutional violation. See Smith v. Maschner, 

, 944 (10th Cir. 1990)

(single instance of opening prisoner mail, “without any evidence of improper motive or

resulting interference with [the inmate’s] right to counsel or to access [] the courts, does

not give rise to a constitutional violation”). Finally, concerning the placement of the

alleged burglar in Plaintiff’s cell, the district court held Plaintiff offered no evidence that

Defendants acted with “obdurate and wanton disregard for an inmate’s safety.”

Northington v. Jackson, 

, 1525 (10th Cir. 1992).

       Concerning the second complaint, the district court, in its order to show cause,

held Plaintiff’s claims against the State of Kansas are barred by the Eleventh Amendment.

See Quern v. Jordan, 

(1979). The district court further held Plaintiff’s

claims against the state judge are barred by absolute immunity. Stump v. Sparkman, 

, 362-64 (1978). Similarly, the county prosecutor is also entitled to absolute

immunity on decisions whether to prosecute. Imbler v. Pachtman, 

, 430

(1976). And as to the claims against the state police officers, the district court held

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Plaintiff must first prove the conviction had been reversed on direct appeal in order to

bring a § 1983 claim. Heck v. Humphrey, 

, 486-87 (1994).

       After Plaintiff failed to make an adequate showing in response to the district

court’s orders to show cause, the district court dismissed both complaints. Plaintiff

appealed. We agree with the district court’s thorough orders and have nothing to add to

the analysis therein.

       For substantially the same reasons stated in the district court’s orders to show

cause and orders of dismissal, we AFFIRM the district court’s dismissal of Plaintiff’s §

1983 claims. We note the district court granted Plaintiff’s motions to proceed in forma

pauperis on appeal, and we remind Plaintiff of his obligation to continue making partial

payments until his entire filing fee has been paid in full.



                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




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