FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         April 1, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
HERMAN TRACY CLARK,

             Plaintiff - Appellant,

v.                                                        No. 13-6205
                                                   (D.C. No. 5:11-CV-00946-C)
MICHAEL OAKLEY; OKLAHOMA                                  (W.D. Okla.)
DEPARTMENT OF CORRECTIONS,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, McKAY, and ANDERSON, Circuit Judges.


      Mr. Clark is a state prisoner proceeding pro se. In a previous case, he brought

civil rights claims against Leon Wilson, an official who froze his prison trust account

in response to a garnishment summons. Although the district court denied

Mr. Wilson qualified immunity, we reversed. Clark v. Wilson, 

, 692

(10th Cir. 2010) (Clark I). We held that Mr. Wilson was entitled to qualified


*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
immunity because at the time Mr. Wilson acted, Mr. Clark did not have a clearly

established procedural due process right to a hearing before his prison account was

frozen. 

      After his loss in Clark I, Mr. Clark sued the Oklahoma Department of

Corrections (ODOC) and its General Counsel Michael Oakley. These defendants, he

contended, had deprived him of his right of access to the courts by providing a

deficient law library. Mr. Clark argued that if the law library at the prison had been

constitutionally adequate, he could have found case law to persuade this court in

Clark I to affirm the denial of qualified immunity to Mr. Wilson rather than reversing

it.

      The district court dismissed the complaint against Mr. Oakley and ODOC,

reasoning that Mr. Clark could not have won Clark I even with a better-provisioned

library. We agree, and therefore affirm the dismissal.

                                  BACKGROUND

      The parties are familiar with the facts underlying Clark I, so we will not

belabor them here. In his amended complaint in this case, Mr. Clark alleged that

Mr. Oakley made a deliberate decision not to include federal case law from circuits

other than the Tenth Circuit as part of the prison’s Legal Resource Center. This

resulted in “a law library that was sub par.” R. at 18. Lack of access to case law

from other circuits allegedly caused Mr. Clark actual injury, because it prevented him

from citing cases from those other circuits to bolster his arguments in Clark I.


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Mr. Clark asserts that case law from those circuits would have shown that actions by

Mr. Wilson, the defendant in the previous case, violated clearly established law.

      To avoid losing in Clark I, Mr. Clark needed to show that at the time

Mr. Wilson froze his prison account, it was clearly established that inmates had a

protected property interest in funds that remained in their accounts after all

mandatory deductions, that could give rise to a procedural due process right to a

hearing before Mr. Wilson froze his account. If not, Mr. Wilson would be entitled to

qualified immunity for his actions. See Clark 

(“The determinative

legal issue in this appeal is whether Clark had a clearly established right in 2007 to a

predeprivation hearing before Wilson froze his prison trust account.”).

      How could Mr. Clark make this necessary showing? As we explained in

Clark I, “[o]rdinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight

of authority from other courts must have found the law to be as the plaintiff

maintains.” 

marks omitted). In Clark I, the district court ruled

in favor of Mr. Clark, denying qualified immunity to Mr. Wilson, because it believed

it had found just such a Tenth Circuit decision on point: Gillihan v. Shillinger,

(10th Cir. 1989). See Clark 

.

      In Gillihan, we held that, given the mandatory language in Wyoming’s

statutory scheme governing prison accounts, the inmate had a protected property

interest in the funds in his account. 

. Between the time


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Gillihan was decided and the time Mr. Wilson froze Mr. Clark’s account, however,

the Supreme Court decided Sandin v. Conner, 

(1995). In Sandin, the

Court “shift[ed] the focus of the inquiry [applicable to prisoner due process claims]

from the language of the regulation to whether the punishment ‘imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life.’” Clark 

(quoting 

). Given this

change, and our prior application of Sandin to property-based claims, we concluded

in Clark I that “Gillihan’s holding that prisoners have a protected property interest in

the funds in their prison trusts account is no longer good law and, hence, not ‘clearly

established’ in this circuit.” 

we further concluded in Clark I that, in light of Sandin, at

the time Mr. Wilson acted, there was also no clearly established law from the

Supreme Court, this court, or other circuits that would have informed Mr. Wilson of

the wrongfulness of his actions:

       [W]e cannot find Clark had a protected property interest in the frozen
       funds without first applying the Sandin test to his claim. But we have
       never before addressed the question of whether freezing a prison
       account in response to a garnishment summons imposes an atypical and
       significant hardship on an inmate in relation to the ordinary incidents of
       prison life. Neither did any Supreme Court decision on point or clearly
       established authority from other circuits exist at the time of Wilson’s
       actions.

Clark 

(emphasis added).




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       In light of this lack of clearly established law, we reversed the district court’s

denial of qualified immunity. 

Mr. Clark now claims this loss on

appeal in Clark I as the “actual injury” that supports his denial-of-access claim.

                                       ANALYSIS

       1. Access-to-Courts Claim

       “It is now established beyond doubt that prisoners have a constitutional right

of access to the courts.” Bounds v. Smith, 

, 821 (1977). To demonstrate

standing to proceed in federal court, an inmate who asserts a deprivation of his right

of access to the courts must show the alleged deprivation resulted in an actual injury

to his ability to pursue litigation. Lewis v. Casey, 

, 349 (1996). “[A]n

inmate cannot establish relevant actual injury simply by establishing that his prison’s

law library . . . is subpar in some theoretical sense.” 

Rather, “the inmate

must . . . go one step further and demonstrate that the alleged shortcomings in the

library . . . hindered his efforts to pursue a legal claim.” 

lost in Clark I because we decided against him on the merits of the

qualified immunity issue. Mr. Clark argues that even though he lost Clark I on the

merits, he can still show actual injury because his underlying claim was nonfrivolous.

See 

& n.3 (limiting definition of actual injury to

“nonfrivolous” claims).

       We discussed the necessary showing on the merits in Simkins v. Bruce,

(10th Cir. 2005). There, we held that an inmate need not “prove a


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case within a case to show that the claim hindered or impeded by the defendant

necessarily would have prevailed.” 

But we also recognized that the

alleged hindrance must bear a causal connection to the alleged injury. We explained:

      Where, for example, the underlying case was adversely decided on the
      basis of a deficiency logically and practically unrelated to the
      impediment created by the right-of-access defendants, courts have held
      that the plaintiff has suffered no actual injury associated with their
      constitutional misconduct. See, e.g., Deleon v. Doe, 

, 94
      (2d Cir. 2004) (holding plaintiff had not shown actual injury resulting
      from delay caused by interference with mail where prior case was not
      dismissed for his untimely submission of materials but on the merits
      after consideration of those materials).

lack of a causal connection between the alleged hindrance and

the alleged injury is not as clear here as it was in Deleon, the critical causal element

is nevertheless absent here. This prevents Mr. Clark from demonstrating the

necessary logical and practical relationship between the alleged hindrance and his

injury. Simply put, Mr. Clark has failed to show that he lost in Clark I because of his

inability to present authority from other circuits. He fails to show that access to law

from other circuits would have made any difference.

      The Clark I panel specifically determined that a post-Sandin right to

procedural due process in connection with the freezing of inmate accounts was not

established in other circuits at the time Mr. Wilson froze the account. Clark 

. Thus, the Clark I panel already examined the state of the law in

other circuits and decided against Mr. Clark the very legal argument he alleges he


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would have made had defendants provided him with a better library. We need not

decide to what extent Mr. Clark is permitted to collaterally attack the prior panel’s

finding. The fact is, the authorities he has presented entirely fail to demonstrate any

error in the prior panel’s decision.

      Mr. Clark’s complaint alleges that “[t]he Third and Eighth Circuits have made

post-Sandin decisions to inmate’s property interest before 2007, making clearly

established law . . . [that] inmates have a property interest in funds held in prison

accounts.” (brackets and internal quotation marks omitted). R. at 22, ¶ 37 (citing

Higgins v. Beyer, 

, 693 (3d Cir. 2002); Reynolds v. Wagner, 

, 179 (3d Cir. 1997); Mahers v. Halford, 

, 954 (8th Cir. 1996)).1

Even assuming that authorities from two other circuits could have clearly established

the unlawfulness of Mr. Wilson’s conduct, the district court concluded that they did

not call into question the Clark I panel’s Sandin-based holding, because “[a]lthough

these cases were decided after Sandin, none of them applied Sandin’s test to

the freezing of a prison trust account.” See R. at 53-54. We agree.2 Therefore,


1
        It may be that inmates do have a property interest in their prison accounts, but
strictly speaking that is an issue that is not before us in this appeal. In Clark I, we
acknowledged that at least one post-2007 case recognized an inmate’s protected
property interest in his prison account. Clark 

n.4 (citing Burns v.
PA Dep’t of Corr., 

, 285-91 (3d Cir. 2008)). But because that case came
after the relevant conduct in Clark I, it was not relevant to the clearly established law
inquiry.
2
      Mr. Clark argues that the district court “missed [his] point,” Aplt. Br. at 13,
because what he was really trying to say is that with an adequate law library, he
could have located and cited the Second Circuit case of Tellier v. Fields, 

                                                                            (continued)
                                          -7-
Mr. Clark’s complaint fails to allege the necessary causal connection between the

defendants’ conduct and his actual injury, and the district court properly dismissed it.

       2. Other Appellate Issues

       In light of the above, Mr. Clark’s other appellate issues fail as well. He argues

that the district court applied an improper standard in dismissing his complaint for

failure to state a claim, but for the reasons we have stated, it is clear that his

complaint was properly dismissed under the appropriate standards. He argues that

the district court improperly accepted facts contained in a Martinez report over

conflicting evidence he proffered, but he fails to point to any contested facts that

undermine the district court’s basis for dismissing his complaint. He contends that

the Eleventh Amendment does not bar claims for prospective relief against state

employees sued in their official capacities, but he fails to show that he had any valid

claims for prospective relief to assert against those employees. He argues that he has



(2d Cir. 2000). According to Mr. Clark, Tellier would have permitted him to argue
“that if statutes and prison regulations place any limits on official discretion in
placing prisoners in those condition [sic], there is a state-created liberty interest, even
if those statutes and regulations would not have created a liberty interest under the
pre-Sandin analysis.” Aplt. Br. at 13. He also argues that Tellier would have
permitted him to argue that Gillihan and authority from other circuits
“foreshadowed” the existence of a post-Sandin property right. See Reply Br. at 2.
These arguments differ considerably from the argument Mr. Clark made to the
district court. We generally do not address arguments raised for the first time on
appeal. See, e.g., Marcus Food Co. v. DiPanfilo, 

, 1169 (10th Cir.
2011) (“This court will not consider arguments presented for the first time on appeal
absent extraordinary circumstances.”). Moreover, Mr. Clark fails to show that even
with Tellier in hand, he would have had any effective challenge to the Clark I panel’s
ruling on the “clearly established law” issue under Sandin.

                                            -8-
shown that Mr. Oakley personally participated in the violations of his constitutional

rights, but he fails to demonstrate any constitutional violations in which Mr. Oakley

participated. He contends that he should have been granted leave to amend his

complaint to add an additional defendant, but for the reasons we have cited, he fails

to show that he had a valid access-to-courts claim against that prospective defendant.

Finally, he fails to show that the district court abused its discretion in denying his

motion for appointment of counsel.

                                    CONCLUSION

      The judgment of the district court is therefore affirmed. Mr. Clark’s motion to

proceed in forma pauperis is granted. We remind him that he remains obligated to

continue making partial payments toward the filing fee until it is paid in full.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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