F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 28 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHRISTOPHER WEATHERALL,
Plaintiff-Appellant,
v. No. 99-1222
(D.C. No. 97-B-2228)
DAVE SCHERBARTH, KEVIN (D. Colo.)
FURTON, RAE LEWIS, GEORGE
DUNBAR, BILL BRUNELL,
PATRICIA MCCARTHY, DAVID
LEWIS, JON JOHNSON, GARY
STROBRIDGE, PAUL
CUNNINGHAM and GARY NEET,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
*
This order and judgment is not binding precedent, except under the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.
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.
Plaintiff-appellant, a Colorado state prisoner, filed a pro se civil rights
complaint making numerous interrelated claims, which can be grouped in three
general categories: (1) the defendants violated his due process and equal
protection rights by placing him in punitive segregation; (2) the defendants
conspired to have him convicted of a fabricated disciplinary offense in retaliation
for his exercise of his right to free speech and right against self-incrimination;
and (3) the defendants engaged in a racially-motivated conspiracy to deprive him
of his due process and equal protection rights.
All of plaintiff’s claims originated with his frequent and open leering at
a female staff member over a period of two to three months. When he admitted
the conduct but refused to sign a document identifying the behavior as
“inappropriate” and stating that it “made female staff feel uncomfortable
and threatened,” he was removed from the general prison population pending
a hearing. R., Vol. 2, doc. 49, ex. B. In a disciplinary proceeding, plaintiff was
found to have engaged in threatening behavior. As a result of this determination,
and in light of plaintiff’s prior history of sexual violence, he was reclassified
and placed in administrative segregation. When his administrative appeals were
rejected, plaintiff sought relief in district court.
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The district court referred plaintiff’s complaint to a magistrate judge for
preliminary proceedings pursuant to 28 U.S.C. § 636. In a thorough and
well-written recommendation, the magistrate judge recommended that the district
court grant the defendants’ motion to dismiss or for summary judgment. The
district court adopted the recommendation and dismissed the complaint. 1
On appeal, plaintiff continues to argue broadly that his placement in
administrative segregation was unwise, unfair, and unconstitutional. We review
de novo the district court’s dismissal of a complaint for failure to state a claim
1
The magistrate judge recommended dismissal under Fed. R. Civ. P.
12(b)(6) of plaintiff’s due process and equal protection claims relating to
his placement in punitive segregation pending a disciplinary hearing. She
recommended entry of summary judgment on the claim that the pre-hearing
placement was in retaliation for his exercise of constitutional rights. With regard
to plaintiff’s assertions that he was unlawfully reclassified to administrative
segregation after the hearing, the magistrate judge recommended dismissal of the
due process, equal protection, and retaliation claims. Concerning plaintiff’s
challenges to the validity of the disciplinary proceeding and conviction, she
recommended dismissal without prejudice, as either premature or cognizable
exclusively in a habeas action under 28 U.S.C. § 2254, rather than the instant civil
rights action under 42 U.S.C. § 1983. Finally, she recommended dismissal of all
conspiracy claims and any remaining miscellaneous claims.
The district court judge “conclude[d] that the recommendation is correct,”
and granted defendants’ motion to dismiss or in the alternative for summary
judgment. R., Vol. 2, doc. 83. The clerk of the district court entered a judgment
stating that the entire complaint was dismissed with prejudice. See R., Vol. 3,
doc. 90. Although not at issue in this appeal, we note that the clerk’s blanket
dismissal with prejudice is inconsistent with the district court’s order and with
our case law. See Fottler v. United States , 73 F.3d 1064, 1065-66 (10th Cir.
1996) (holding that dismissal of a claim mistakenly brought under § 1983 instead
of § 2254 should be without prejudice).
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for which relief may be granted and grant of a motion for summary judgment.
See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998)
(summary judgment under Fed. R. Civ. P. 56); Bauchman ex rel. Bauchman v.
West High Sch. , 132 F.3d 542, 550 (10th Cir. 1997) (dismissal under Rule
12(b)(6)). We construe the pleadings and papers of a pro se appellant liberally.
See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam).
The United States Constitution does not entitle an inmate to any particular
degree of liberty in prison; thus, changes to an inmate’s prison classification do
not involve deprivations of liberty. See Templeman v. Gunter , 16 F.3d 367, 369
(10th Cir. 1994). Although a state may create liberty interests that are protected
by the Due Process Clause, such interests
will be generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own force . . .
nonetheless imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.
Sandin v. Conner , 515 U.S. 472, 484 (1995).
We have held that Colorado prison regulations do not create a liberty
interest in an inmate’s prison placement classification. See Templeman , 16 F.3d
at 369. Moreover, our review of the record fails to reveal the imposition of the
“atypical and significant hardship” contemplated by Sandin , or procedural
irregularities in the disciplinary proceedings leading to his placement in
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administrative segregation. Under these circumstances, there was no violation
of plaintiff’s due process rights. Nor were plaintiff’s equal protection rights
affected. Plaintiff has failed to allege or show that similarly-situated individuals
of different races were treated differently. See Powells v. Minnehaha County
Sheriff Dep’t , 198 F.3d 711, 712 (8th Cir. 1999). 2
With respect to plaintiff’s retaliation claim, he must demonstrate that the
action was taken because of the exercise of his constitutional rights. See Peterson
v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998). Standing alone, temporal
proximity between the alleged exercise of rights and the administrative
segregation does not constitute sufficient circumstantial proof of a retaliatory
motive. Cf. Smith v. Maschner , 899 F.2d 940, 949 (10th Cir. 1990) (reversing
summary judgment because “circumstantial evidence of the suspicious timing
of [plaintiff’s] discipline, coincidental transfers of his witnesses and assistants,
2
We agree with the magistrate judge that, to the extent plaintiff attacks the
substantive validity of the disciplinary proceedings and seeks injunctive relief
requiring restoration of his good-time credits, with the consequent reduction of
the length of his confinement, the claim is cognizable only in a § 2254 habeas
corpus action, not a § 1983 action. See Heck v. Humphrey , 512 U.S. 477, 481
(1994) (citing Preiser v. Rodriguez , 411 U.S. 475, 488-90 (1973) for the
proposition that “habeas corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks immediate or
speedier release, even though such a claim may come within the literal terms of
§ 1983”). Moreover, any request for damages arising from the alleged
deprivation of good-time credits is premature, in that plaintiff cannot show that
the disciplinary conviction has been expunged, declared invalid, or called into
question by an issuance of a writ of habeas corpus. See id. at 486-87.
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and an alleged pattern by defendants of blocking his access to legal materials
and assistance” was sufficient to create a jury question on a claim of retaliation
for exercise of the right to access to the courts). On this issue, plaintiff offered
only speculation and conclusory allegations. Because he failed to raise a genuine
issue as to any material fact, summary judgment was appropriate.
Plaintiff’s final group of claims relates to his allegations that, due to racial
animus, defendants conspired to remove him from the general prison population
and place him in segregation on false disciplinary charges. He has not alleged
any specific facts showing a discriminatory motive, an agreement to deprive
plaintiff of a constitutional right, or the actual deprivation of a constitutional
right. The claim was properly dismissed. See Boddie v. Schnieder , 105 F.3d 857,
862 (2d Cir. 1997) (“[A] complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional rights cannot
withstand a motion to dismiss.”) (quotation omitted).
The magistrate judge’s recommendation, which was adopted by the district
court, fully explained why plaintiff’s claims lacked any legal merit. We also
conclude plaintiff’s claims are without merit and further conclude that this appeal,
taken from the district court’s ruling, is frivolous. See 28 U.S.C.
§ 1915(e)(2)(B)(i); Neitzke v. Williams , 490 U.S. 319, 327 (1989) (stating that a
claim is frivolous if it relies on an “indisputably meritless legal theory”).
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Accordingly, the appeal is DISMISSED as frivolous under 28 U.S.C.
§ 1915(e)(2)(B), to count as a “prior occasion” for purposes of the three-strikes
provision set out in 28 U.S.C. § 1915(g). See Jennings v. Natrona County
Detention Ctr. Med. Facility , 175 F.3d 775, 780-81 (10th Cir. 1999). Plaintiff’s
motion to proceed in forma pauperis on appeal is DENIED. The mandate shall
issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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