Brown v. Chandler

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

GLEN EDWARD BROWN,

Plaintiff-Appellant,

v. No. 04-7024
(D.C. No. 02-CV-422-S)
HOLLY CHANDLER; ED (E.D. Okla.)
BULLARD; OKLAHOMA
DEPARTMENT OF CORRECTIONS,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District
Judge.

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This order and judgment is not binding precedent, except under the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. 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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
 In this 42 U.S.C. § 1983 action, plaintiff-appellant Glen Edward Brown, an

Oklahoma state prisoner appearing pro se, appeals the district court’s entry of

summary judgment in favor of defendants-appellees Holly Chandler, Ed Bullard,

and the Oklahoma Department of Corrections. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm.

I.

Brown is serving a thirty-year sentence for rape after former conviction of a

felony. In October 1999, Brown was transferred to the John Lilley Correctional

Center (JLCC). While incarcerated at JLCC, Brown was enrolled in the prison’s

sex offender treatment program (SOTP). At all times relevant to this action,

defendant Chandler was the director of the SOTP, and defendant Bullard was a

counselor/trainer in the SOTP.

In March 2000, prison staff at JLCC removed Brown from the SOTP on the

ground that he had not been fully participating in the program. As a result of his

removal from the program, Brown’s earned credit level was lowered and his

security classification was increased to that of a medium security inmate. In

addition, on April 11, 2000, Brown was transferred to the Dick Conner

Correctional Center, a medium security facility. In May 2000, prison officials

also conducted an audit of Brown’s earned credits, and 2,643 earned credits were

removed from his record. However, according to defendants, in May 2003, the

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earned credits were returned to Brown, and he lost no credits as a result of his

removal from the SOTP. 1

In July 2002, Brown filed his § 1983 complaint against defendants, alleging

that: (1) defendants violated his procedural and substantive due process rights

under the Fourteenth Amendment and his right to be free from cruel and unusual

punishment under the Eighth Amendment, as applied to the states under the

Fourteenth Amendment, because the SOTP failed provide him with proper

psychiatric treatment and he was removed from the SOTP without a hearing;

(2) defendants engaged in unlawful retaliation when they prosecuted him for three

separate misconduct offenses after he exercised his right to access the courts and

after his attorney sent a letter to defendant Chandler expressing concern over

certain aspects of the SOTP; and (3) defendants violated his First Amendment

rights by requiring him to recite a “serenity prayer” at the beginning of each

SOTP therapy session and by requiring him to engage in masturbation satiation

sessions as part of his therapy. 2
Based on these alleged constitutional violations,

1
We note that Brown previously filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 concerning his earned credits. See R., Doc. 30, Ex.
A at 1-2. Brown’s habeas petition was dismissed by the United States District
Court for the Northern District of Oklahoma on the ground that Brown did not
exhaust his administrative remedies. Id. at 3-4. Brown did not appeal the
dismissal of his habeas petition.
2
Brown alleges in his opening brief that defendants have also violated his
equal protection rights by failing to provide him with the same type and quality of
(continued...)

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Brown sought compensatory and punitive damages, as well as injunctive and

declaratory relief.

The district court determined that defendants were entitled to summary

judgment on all of Brown’s claims. First, the court concluded that Brown had

“failed to make any viable argument that he ha[d] exhausted his [prison]

administrative remedies as to any claims except as to the [SOTP and] his

classification level following his removal from the [SOTP].” R., Doc. 32 at 11.

Accordingly, pursuant to 42 U.S.C. § 1997e(a), the district court granted

defendants summary judgment on all of the unexhausted claims.

Second, with respect to the exhausted claims, the district court found that

Brown had “failed to show how his brief enrollment in the [SOTP] violated

his . . . constitutional rights.” R., Doc. 32 at 12. As explained by the court,

Brown “[came] forth with no facts to demonstrate that his enrollment in the

2
(...continued)
psychiatric care that other mentally-ill inmates receive. See Aplt. Opening Br. at
2, 20. Brown has not set forth any specific facts to support his equal protection
claim, however. Likewise, Brown failed to provide any specific facts to the
district court in his summary judgment response brief. As a result, we do not
need to address Brown’s equal protection claim, except to note that it was
properly dismissed under Fed. R. Civ. P. 56. Brown also claims that he has been
subjected to physical attacks from other inmates as a result of his participation in
the SOTP and the failure of the prison officials to keep his status as a sex
offender confidential. We conclude that defendants were entitled to summary
judgment on the latter claim, as it is governed by the Eighth Amendment, and
Brown has failed to set forth sufficient facts to establish that the prison officials
acted with deliberate indifference with respect to his personal safety.

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[SOTP] subjected him to a sufficiently serious deprivation . . . or that

defendant[s] had a culpable state of mind amounting to deliberate indifference to

a risk of serious harm to him.” Id. at 12-13 (quotations omitted).

Finally, after noting that Brown had “alleged that because of his removal

from the [SOTP] his earned credit classification was lowered,” id. at 13, the

district court concluded that “[t]he Oklahoma prison classification system creates

no liberty interest for a particular classification,” id. As a result, the court found

that Brown had “suffered no constitutional violation from his reduced earned

credit classification.” Id.

Although our reasoning differs slightly from that of the district court with

respect to certain aspects of Brown’s claims, we agree with the district court that

defendants were entitled to summary judgment on all of Brown’s claims. See

Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 528 (10th Cir. 1994)

(“We review a summary judgment fully and may affirm on grounds other than

those relied on by the district court when the record contains an adequate and

independent basis for that result.”). Thus, we affirm the district court’s summary

judgment order in all respects.

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 II.

A. Standard of Review.

We review a summary judgment order de novo, considering the evidence

and all reasonable inferences drawn therefrom in the light most favorable to the

nonmoving party. Cooperman v. David , 214 F.3d 1162, 1164 (10th Cir. 2000).

Summary judgment is proper only when there are no genuinely disputed material

issues of fact and the moving party is entitled to judgment as a matter of law. Id.

(quoting Fed. R. Civ. P. 56(c)). It is also well established that “[a] pro se

litigant’s pleadings are to be construed liberally and held to a less stringent

standard than formal pleadings drafted by lawyers.” Hall v. Bellmon , 935 F.2d

1106, 1110 (10th Cir. 1991). Nonetheless, a pro se litigant must “comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure,”

Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994), and we will not act

as an advocate for a pro se litigant, Hall , 935 F.2d at 1110.

The parties must also make specific showings to satisfy their respective

burdens under Fed. R. Civ. P. 56. We have explained the burden-shifting process

under Rule 56 as follows:

The movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law. In so doing, a movant
that will not bear the burden of persuasion at trial need not negate the
nonmovant’s claim. Such a movant may make its prima facie

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 demonstration simply by pointing out to the court a lack of evidence
for the nonmovant on an essential element of the nonmovant’s claim.

If the movant carries this initial burden, the nonmovant that
would bear the burden of persuasion at trial may not simply rest upon
its pleadings; the burden shifts to the nonmovant to go beyond the
pleadings and set forth specific facts that would be admissible in
evidence in the event of trial from which a rational trier of fact could
find for the nonmovant. To accomplish this, the facts must be
identified by reference to affidavits, deposition transcripts, or
specific exhibits incorporated therein.

Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670-71 (10th Cir. 1998) (quotation

and citations omitted).

B. Due Process and Eighth Amendment Claims.

We conclude that the district court properly granted defendants summary

judgment on Brown’s due process and Eighth Amendment claims. To begin with,

Brown’s procedural due process claim fails as a matter of law. In order to

establish a protected liberty interest in a benefit under state law, “a person clearly

must have more than an abstract need or desire for [the benefit]. He must have

more than a unilateral expectation of it. He must, instead, have a legitimate claim

of entitlement to it.” Montero v. Meyer , 13 F.3d 1444, 1447 (10th Cir. 1994)

(quoting Board of Regents of State Colleges v. Roth , 408 U.S. 564, 577 (1972)).

Consequently, while state statutes and prison regulations can grant prisoners

liberty interests that are entitled to procedural due process protections, Meachum

v. Fano , 427 U.S. 215, 223-27 (1976), “[a] liberty interest in the prison context

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must be based upon a specific substantive predicate which restricts the discretion

of prison officials,” Canterino v. Wilson , 869 F.2d 948, 953 (6th Cir. 1989)

(citing Hewitt v. Helms , 459 U.S. 460, 467 (1983)); see also Montero , 13 F.3d

at 1447-48 (“It is [the] termination of a right previously afforded by the state and

in which there is a legitimate claim of entitlement which invokes the procedural

guarantees contained in the Due Process Clause of the Fourteenth Amendment.”).

In this case, Brown may be correct that Oklahoma law requires the

Oklahoma Department of Corrections to develop and implement treatment

programs for inmates with severe psychiatric problems. See Okla. Stat. tit. 57,

§ 509.4. Nonetheless, Brown has failed to establish that the Oklahoma legislature

has granted him a vested, nondiscretionary, personal entitlement to participate in

the SOTP or otherwise receive psychiatric treatment. Indeed, to the contrary, the

record indicates that the prison officials have broad discretion regarding the

administration of the SOTP, and we believe this discretion extends to all prison

rehabilitation and medical programs.

It is also clear that Brown does not have a vested right to participate in the

SOTP as a matter of federal law. See Battle v. Anderson, 564 F.2d 388, 403

(10th Cir. 1977) (“[A]n inmate does not have a federal constitutional right to

rehabilitation.”). In addition, to the extent Brown is alleging that defendants have

violated his substantive due process rights, the claim is “essentially coextensive

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with Eighth Amendment prohibitions against cruel and unusual punishment,

and . . . the Eighth Amendment serves as the primary source of protection for

convicted prisoners.” Lunsford v. Bennett , 17 F.3d 1574, 1583 (7th Cir. 1994).

Thus, unless he can demonstrate that he has been subjected to cruel and unusual

punishment, Brown cannot show that his substantive due process rights were

violated. Id.

According to the Supreme Court’s decision in Estelle v. Gamble , 429 U.S.

97, 104-05 (1976), prison officials violate the Eighth Amendment when their

conduct demonstrates deliberate indifference to the serious medical needs of

prisoners in their charge. Here, Brown has failed to even approach the showing

that is necessary to establish an Eighth Amendment violation under Estelle . Most

importantly, Brown has failed to offer any evidence showing that he suffers from

a serious psychiatric problem, and we decline to infer such a problem based solely

on Brown’s status as a convicted sex offender. Consequently, we do not need to

reach the deliberate indifference issue, although we note that Brown’s proof falls

far short on that issue as well.

Finally, Brown may have been able to establish a procedural due process

violation if he could have shown that defendants permanently revoked and

deprived him of earned credits that he had previously earned. See Taylor v.

Wallace , 931 F.2d 698, 700 (10th Cir. 1991) (addressing inmate’s claim to earned

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good time credits under Oklahoma law and holding that “an inmate’s liberty

interest in his earned good time credits cannot be denied without the minimal

safeguards afforded by the Due Process Clause of the Fourteenth Amendment”)

(quotation omitted). As noted above, however, defendants put forth evidence

showing that all of the revoked earned credits were subsequently returned to

Brown, see R., Doc. 24 at 5-6, 14, and Brown never rebutted defendants’

evidence on this point. Thus, any due process claim relating to the revoked

earned credits is moot, and summary judgment was appropriate. 3

C. Retaliation Claims.

“42 U.S.C. § 1997e(a) . . . requires that ‘available’ administrative remedies

be exhausted prior to filing an action with respect to prison conditions under

§ 1983.” Jernigan v. Stuchell , 304 F.3d 1030, 1032 (10th Cir. 2002). Having

carefully reviewed the record and the prison grievance documents contained

3
To the extent Brown is claiming that his due process rights were violated
because he was deprived of the ability to earn future earned credits as a result of
the change in his security classification following his removal from the SOTP,
that claim also fails as a matter of law. See Searcy v. Simmons, 299 F.3d 1220,
1226 (10th Cir. 2002) (“[T]he Constitution itself does not guarantee good-time
credits for satisfactory behavior while in prison.”) (quoting Wolff v. McDonnell ,
418 U.S. 539, 557 (1974)); see also Templeman v. Gunter , 16 F.3d 367, 369
(10th Cir. 1994) (“Changing an inmate’s prison classification ordinarily does not
deprive him of liberty, because he is not entitled to a particular degree of liberty
in prison.”); Twyman v. Crisp , 584 F.2d 352, 356-57 (10th Cir. 1978) (holding
that change in prisoner’s security classification and transfer to maximum custody
was matter within sphere of prison officials’ authority).

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therein, we agree with the district court that Brown failed to exhaust his

administrative remedies with respect to his retaliation claims. 4
See R., Doc. 32

at 10-12. Accordingly, § 1997e(a) bars Brown from pursuing the claims under

§ 1983.

D. First Amendment Claims.

Brown claims that defendants violated his rights under the First

Amendment by requiring him to recite a “serenity prayer” at the beginning of each

SOTP therapy session and by requiring him to engage in masturbation satiation

sessions. We hold that defendants were entitled to summary judgment on both of

these claims.

With respect to the serenity prayer, defendants asserted in their district

court summary judgment brief that “[SOTP] participants are not required to

participate in a serenity prayer.” R., Doc. 24 at 12. In his response brief,

although Brown addressed defendants’ assertion in terms of the SOTP as a whole,

he failed to address it in the context of his own personal participation in the

4
Specifically, while Brown submitted a “Request to Staff” concerning his
claim that defendants had him removed from the SOTP as retaliation for his
complaints regarding alleged deficiencies in the program, see R., Doc. 23, Ex.
B-1 at 6-7, he failed to raise the retaliation issue in the prison grievances that he
subsequently filed, id. , Ex. B-3 at 1-4. Also, while Brown asserted a retaliation
claim in one of the administrative appeals that he filed regarding his misconduct
offenses, id. , Ex. I-3 at 1-4, he failed to file the appeal in a timely manner, id. ,
Ex. I-3 at 11-12; Ex. N at 2.

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SOTP. Instead, he simply asserted in conclusory fashion that “SOTP directed a

formal religious exercise by reciting the Serenity Prayer to commence each

program group meeting. ODOC & SOTP not only had plenary control but in fact

initiated the Serenity Prayer, which was not inmate initiated.” Id. , Doc. 30 at 12.

This was simply a reformulation of the conclusory allegations that Brown made in

the brief he submitted in support of his complaint, as Brown alleged in his brief

that “the extant Policies and Procedures of the [SOTP] violate[] Federal Laws of

‘Separation of Church and State,’ e.g., 1st Amendment, Establishment Clause by

their initiation of prayer into the alleged [therapeutic program].” Id. , Doc. 4

at 24.

In response to defendants’ motion for summary judgment, Brown was

required to go beyond his pleadings and “‘set forth specific facts’ that would be

admissible in evidence from which a rational trier of fact could find for [him].”

Adler , 144 F.3d at 671 (quoting Fed. R. Civ. P. 56(e)). Brown failed to carry this

burden, however, as he failed to provide the district court with specific facts

describing the role of the serenity prayer in the therapy sessions that he personally

attended. As a result, Brown failed to rebut defendants’ assertion that he was not

required to participate in a serenity prayer. He has likewise failed to explain,

with the aid of either specific facts or legal argument, why defendants’ factual

assertion is not dispositive of his Establishment Clause claim. Accordingly, the

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district court acted correctly in entering summary judgment on Brown’s

Establishment Clause claim.

With respect to the alleged masturbation satiation sessions, our review of

the record reveals that Brown failed to exhaust his administrative remedies

concerning this aspect of his First Amendment claim. The claim is therefore

barred by 42 U.S.C. § 1997e(a). 5

The judgment of the district court is AFFIRMED. Brown’s motion to

proceed in forma pauperis was granted by the district court. He is reminded that

he is obligated to continue making partial payments toward the balance of the

assessed fees and costs, until they are paid in full.

Entered for the Court

Bobby R. Baldock
Circuit Judge

5
We also note that Brown has conceded in his opening brief that the
masturbation satiation sessions were a part of a sex offender treatment program at
the Joseph Harp Correctional Center (JHCC), where he was initially incarcerated,
and not at JLCC. See Aplt. Opening Br. at 6, 8. As a result, this aspect of
Brown’s First Amendment claim also fails on the merits, because: (1) he has not
asserted claims against any of the prison staff members at JHCC, and he therefore
has no basis to recover money damages; and (2) he is no longer incarcerated at
JHCC, and he therefore has no basis for seeking declaratory or injunctive relief.

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