Pettigrew v. Zavaras

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 30, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

RYAN ALEXANDER PETTIGREW,

Plaintiff-Appellant,

v. No. 12-1146
(D.C. No. 1:11-CV-00367-WYD-KLM)
ARISTEDES ZAVARAS, Executive (D. Colo.)
Director; SUSAN JONES, Warden;
LARRY REED, Warden; DENT;
SANDRA CROSS, Sgt. Intelligence
Officer; DANIEL STRAWN, Lt.
Correctional Officer; DONA
SAVISLAN, Food Services and
Laundry Program Manager;
ANTHONY A. DECESARO,
Grievance Officer; MACAIN
HILDEBRAND, Program Majors;
MARY MCCORMICK, Programs
Supervisor; DARRYL PROFFIT,
Regional Coordinator, Faith and
Citizens Programs; CHAVEZ, Case
Manager; KYLE BUFFUM, Case
Manager; DEBORAH C. ALLEN,
Parole Board Member; BECKY R.
LUCERO, Parole Board Vice Chair;
CELESTE M. CDEBACA, Parole
Board Member; MICKEY
HECKENBACH, Parole Board
Member; LESLEE V. WAGGENER,
Parole Board Member; DAVID L.
MICHAUD, Parole Board Chairman;
DALE BURKE, Hearings Officer;
COMFORT, Correctional Officer;
ROYBAL, Lt. Shift Commander,

Defendants-Appellees.
 ORDER AND JUDGMENT *

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

While an inmate of the Colorado Department of Corrections (“CDOC”),

Plaintiff-Appellant Ryan Pettigrew filed a pro se 42 U.S.C. § 1983 prisoner civil-

rights appeal. 1 The district court, adopting the recommendations of a magistrate

judge, granted Defendants’ motion to dismiss Mr. Pettigrew’s claims. Mr.

Pettigrew appeals this dismissal. He additionally seeks leave to proceed in forma

pauperis (“IFP”) on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, and

for the reasons set forth herein, we AFFIRM the judgment of the district court

dismissing Mr. Pettigrew’s claims and entering judgment in favor of Defendants.

Mr. Pettigrew’s motion to proceed IFP is GRANTED.

*
After examining the briefs and appellate record, this panel has
decided unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(C); 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This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because Mr. Pettigrew is proceeding pro se, his filings are construed
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).

2
 I

On February 11, 2011, Mr. Pettigrew initiated this litigation by filing a pro

se complaint under 42 U.S.C. § 1983, alleging violations of his constitutional

rights. He also asserted claims under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc. Mr. Pettigrew

was granted leave to proceed IFP pursuant to 28 U.S.C. § 1915.

On April 6, 2011, a magistrate judge determined that Mr. Pettigrew’s

complaint was deficient because it failed to allege the personal participation of all

named defendants and asserted a substantive due-process claim that was legally

without merit. Accordingly, the magistrate judge directed Mr. Pettigrew to file an

amended complaint. Instead of filing a timely amended complaint, Mr. Pettigrew

filed an objection to the magistrate judge’s order. In considering Mr. Pettigrew’s

objection, the district court dismissed certain defendants that were named in the

complaint. It also dismissed Mr. Pettigrew’s substantive due-process

claim—relating to his denial of parole based upon allegedly false information

contained in his prison file about his criminal history—as “legally frivolous.” R.

at 74 (Order to Dismiss in Part & Draw Case to Dist. Judge & Mag. Judge, filed

May 18, 2011).

Mr. Pettigrew then filed an amended complaint on June 20, 2011. 2 In this

2
The defendants named in the amended complaint (as described by
(continued...)

3
amended complaint, Mr. Pettigrew asserted seven claims for relief: (1) an Eighth

Amendment claim, resulting from detention in a strip cell for twenty-four hours,

against Defendants Zavaras, Jones, Roybal, and Comfort; (2) an Eighth

Amendment claim against Defendants Zavaras, Reed, Jones, Dent, and Cross,

predicated on Mr. Pettigrew’s incarceration in administrative segregation from

January 2005 through March 2010, and from December 2010 through the date of

his amended complaint—a form of incarceration that allegedly exacerbated his

mental illnesses; (3) a Free Exercise Clause claim, based on the denial from 2005

through 2010 of a religious diet and communion sought by virtue of his claimed

faith, “Christian Identity,” against Defendants McCormick, Reed, Hildebrand,

Proffit, Jones, and Zavaras; (4) a RLUIPA claim, based on the denial of a

religious diet and communion, against Defendants Reed, Jones, McCormick,

Hildebrand, and Proffit; (5) an equal-protection claim predicated on the prison’s

failure to offer Mr. Pettigrew a Passover diet and communion (which he sought

because of his claimed faith, “Christian Identity”), while offering a Passover diet

2
(...continued)
Mr. Pettigrew in the amended complaint) are: Aristedes Zavaras, Executive
Director of the Colorado Department of Corrections; Susan Jones, Warden of
Colorado State Penitentiary and Centennial Correctional Facility; Larry Reed, Ex-
Warden of Colorado State Penitentiary and Centennial Correctional Facility;
Sergeant Dent, Intelligence Officer; Sergeant Sandra Cross, Intelligence Officer;
Macain Hildebrand, Programs Major; Captain Mary McCormick, Programs
Supervisor; Darryl Proffit, Regional Coordinator of Faith and Citizens Programs;
Dale Burke, Hearings Officer; C/O Comfort, Correctional Officer; and Lieutenant
Roybal, Shift Commander.

4
to Jewish inmates and communion to Catholic inmates, against Defendants

McCormick, Hildebrand, and Proffit; (6) a claim stemming from alleged

violations of the Free Exercise Clause and RLUIPA based on the prison’s

allegedly improper limitation of two books per inmate, thereby hobbling Mr.

Pettigrew’s book-based religious study, against Defendants Zavaras, Jones,

McCormick, and Hildebrand; and (7) a claim against Defendants Burke and

Zavaras stemming from alleged violations of Mr. Pettigrew’s Fourth and

Fourteenth Amendment rights, allegedly caused by an internal hearing officer’s

imposition on Mr. Pettigrew of a restitution order on December 16, 2010. 3

3
Claim one of Mr. Pettigrew’s original complaint was a substantive
due-process claim concerning an allegation that “parole and community
corrections were denied because of” purportedly false information in his CDOC
file. R. at 14 (Compl., filed Feb. 11, 2011). In its order directing Mr. Pettigrew
to file an amended complaint, the magistrate judge deemed that claim “deficient,”
id. at 52 (Order Dir. Pl. to File Am. Compl., filed Apr. 6, 2011), and expressly
stated that Mr. Pettigrew “should not include a substantive due process claim
concerning his parole proceedings . . . in the amended complaint,” id. at 54
(emphasis added). Mr. Pettigrew then objected to the magistrate judge’s order,
specifically challenging its directive regarding his substantive due-process claim.
See id. at 57 (Objection to Order, filed Apr. 18, 2011). In resisting the order, Mr.
Pettigrew conceded that “claim one should . . . have the community corrections
allegations dismissed but the parole allegations must stand.” Id. (emphasis
added). Two procedural outcomes flow from this statement. First, in lodging
such an objection, Mr. Pettigrew unambiguously made known his intent to
relinquish the community-corrections aspect of his substantive due-process
argument. See United States v. Carrasco-Salazar, 494 F.3d 1270, 1272–73 (10th
Cir. 2007) (agreeing with our sister circuits that “an abandoned objection is
waived”). And, second, Mr. Pettigrew preserved for appellate review his
argument that the portion of his substantive due-process claim concerning parole
should not have been dismissed.
(continued...)

5
 On August 1, 2011, Defendants filed a motion to dismiss pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The magistrate judge

recommended that the motion to dismiss be granted and that Mr. Pettigrew’s

amended complaint be dismissed with prejudice. Mr. Pettigrew filed an objection

to the magistrate judge’s recommendation on February 6, 2012. On March 30,

2012, the district court issued an order adopting the recommendation and

overruling Mr. Pettigrew’s objections. On April 2, 2012, the district court issued

3
(...continued)
Our conclusion that Mr. Pettigrew has preserved a challenge to the
dismissal of the parole-based argument of his original substantive due-process
claim is solidified by subsequent procedural events. Specifically, in his notice of
appeal following the district court’s entry of final judgment, Mr. Pettigrew did not
demonstrate any signs of abandoning his substantive due-process
challenge—through, for example, a specification of district court orders that
omitted the one dismissing his substantive due-process claim. Rather, Mr.
Pettigrew took his appeal from the judgment itself, which permitted him to raise
any challenges to all preceding orders, including the one dismissing his
substantive due-process claim. See McBride v. CITGO Petroleum Corp., 281 F.3d
1099, 1104 (10th Cir. 2002) (“[A] notice of appeal which names the final
judgment is sufficient to support review of all earlier orders that merge in the
final judgment.”); see also id. (“Having appealed from the judgment, the
appellant is free to attack any nonfinal order or ruling leading up to it.” (quoting
20 Moore’s Federal Practice ¶ 303.21[3][c][iii] (3d ed. 2001)) (internal quotation
marks omitted)); accord United States v. Battles, 745 F.3d 436, 448–49 (10th
Cir.), pet. for cert. filed, 82 U.S.L.W. 3663 (U.S. Apr. 28, 2014) (No. 13-1309);
Montgomery v. City of Ardmore, 365 F.3d 926, 934 (10th Cir. 2004). And we
also note that, on appeal, Defendants do not argue that Mr. Pettigrew has failed to
preserve his substantive due-process challenge. In sum, we are comfortable
concluding that Mr. Pettigrew has preserved his challenge to the dismissal of his
substantive due-process claim—even though it is absent from his amended
complaint. (Consequently, it is not addressed in the district court’s final order of
dismissal related to the amended complaint.)

6
an amended order adopting the recommendation and correcting an error in the

caption of the initial order. Mr. Pettigrew filed a timely notice of appeal from

this order on April 16, 2012.

II

We review de novo a district court’s dismissal order under both Rules

12(b)(1) and 12(b)(6). See Satterfield v. Malloy, 700 F.3d 1231, 1234 (10th Cir.

2012) (“[T]he standard of review is de novo under either subsection [12(b)(1) or

subsection 12(b)(6)].”); see also ClearOne Commc’ns, Inc. v. Biamp Sys., 653

F.3d 1163, 1171 (10th Cir. 2011) (“[W]e review de novo a district court’s ruling

on a motion to dismiss a complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim.”). Moreover, in assessing the propriety of

the district court’s dismissal, we apply “the same legal standard as the district

court.” Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1025

(10th Cir. 2011). Accordingly, we must “accept as true all well-pleaded factual

allegations in a complaint and view these allegations in the light most favorable

to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).

Even so, the plaintiff must allege facts that make his stated claim for relief

facially plausible. See Jordan-Arapahoe, 633 F.3d at 1025. “A claim has facial

plausibility when the [pleaded] factual content [] allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))

7
(internal quotation marks omitted).

III

In this appeal, Mr. Pettigrew challenges the district court’s dismissal of six

of the seven claims that he raised in his amended complaint, 4 the district court’s

dismissal of Defendants Jones and Zavaras from the case for lack of personal

participation in the alleged constitutional violations, and the district court’s

dismissal of his substantive due-process claim. Having thoroughly reviewed the

record and the briefs, we conclude that the district court’s rulings as to many of

the claims in this case—specifically, its dismissal of claims one, three, four, five,

and six of the amended complaint, and its dismissal of Defendants Jones and

Zavaras as parties to the case—were substantially correct, and can be affirmed

without the need for significant elaboration. We address these claims briefly

below before proceeding to the remaining issues.

A

The district court dismissed claim one of the amended complaint, which

4
Because Mr. Pettigrew has not challenged the district court’s
dismissal of claim seven of the amended complaint (alleging a violation of the
Fourth and Fourteenth Amendments resulting from the imposition of a restitution
order), we consider that claim to have been abandoned and do not address it. See
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that are not raised, or are inadequately presented,
in an appellant’s opening brief.”); Tran v. Trs. of State Colls. in Colo., 355 F.3d
1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed
abandoned or waived.” (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108
F.3d 1199, 1205 (10th Cir. 1997)) (internal quotation marks omitted)).

8
alleged a violation of Mr. Pettigrew’s rights under the Eighth Amendment based

on his detention in a strip cell, on qualified-immunity grounds. Having reviewed

the district court’s order, we are satisfied that its analysis is without error, and we

affirm this dismissal for substantially the same reasons set forth in the order.

Claims three through six of the amended complaint alleged violations of

Mr. Pettigrew’s rights under the Constitution’s Free Exercise and Equal

Protection Clauses and under RLUIPA. The district court dismissed each of these

claims as time-barred. With one exception, we find the district court’s reasoning

cogent, and we affirm for substantially the same reasons set forth by the district

court.

The exception relates to the limitations period applied to Mr. Pettigrew’s

claims under RLUIPA—that is, claims four and six. 5 As the district court

5
With regard to claim six, we note that in reaching its conclusion that
this claim was untimely, the district court found that Mr. Pettigrew’s claim
accrued on January 20, 2009, the date Mr. Pettigrew alleges that his step-one
grievance related to the two-book limit was denied. Arguably, this is not the
correct date. On February 10, 2009, Mr. Pettigrew’s step-two grievance on the
issue was denied; this would seemingly be the appropriate accrual date. Our
concern on this score arises from the fact that, under the administrative-
exhaustion requirements applicable to both RLUIPA and § 1983 claims, Mr.
Pettigrew was legally barred from filing suit until the later date (i.e., the date of
the denial of the step-two grievance). See 42 U.S.C. § 1997e(a) (“No action shall
be brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.”); Cutter v. Wilkinson, 544 U.S. 709, 723 n.12 (2005) (“[A] prisoner
may not sue under RLUIPA without first exhausting all available administrative
(continued...)

9
observed, the magistrate judge in this case “found that a two-year statute of

limitations applied to [Mr. Pettigrew’s] claims,” and Mr. Pettigrew “d[id] not

object [to] the Magistrate Judge’s conclusion.” R. at 227 (Am. Order Aff’g &

Adopting Mag. Judge’s Recommendation, filed Apr. 2, 2012). Though it is quite

true that the statute of limitations generally applicable to Mr. Pettigrew’s § 1983

claims is two years, see Blake v. Dickason, 997 F.2d 749, 750–51 (10th Cir. 1993)

(applying Colorado’s two-year residual personal-injury limitations period to

§ 1983 cases), RLUIPA has a separate four-year statute of limitations, see 28

U.S.C. § 1658(a); Al-Amin v. Shear, 325 F. App’x 190, 193 (4th Cir. 2009);

Alamiin v. Miller, No. CIV-08-1371-F, 2010 WL 3603150, at *20 (W.D. Okla.

June 28, 2010) (Mag. Judge’s Recommendation), adopted by dist. ct., 2010 WL

3604660 (W.D. Okla. Sept. 9, 2010). We discern no reason why the district court

should not have deemed a four-year statute of limitations applicable to Mr.

Pettigrew’s RLUIPA claims.

5
(...continued)
remedies.”). In any event, we need not decide here whether the appropriate
accrual date was January 20 or February 10, since Mr. Pettigrew’s complaint was
untimely under either scenario due to his waiting to file his complaint until
February 11, 2011. In reaching this determination, we note that Mr. Pettigrew
cannot benefit from the prison mailbox rule. Our precedent makes clear that a
prisoner seeking to invoke the rule in connection with the use of the regular
prison mail must demonstrate timely filing “with a notarized statement or a
declaration under penalty of perjury of the date on which the documents were
given to prison authorities and attesting that postage was prepaid.” Price v.
Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005); see Fed. R. App. P. 4(c)(1). Mr.
Pettigrew did not file such a statement or declaration.

10
 Yet, significantly, Mr. Pettigrew has never challenged the application of the

two-year statute of limitations—not before the district court and not in his

briefing on appeal. Ordinarily, a litigant’s failure to raise an issue in his appellate

briefing would lead us to deem the issue waived. See, e.g., Bronson, 500 F.3d at

1104; Tran, 355 F.3d at 1266. Moreover, given Mr. Pettigrew’s silence regarding

the limitations issue on appeal, there is not even the foundation for review under

the rigorous plain-error standard. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its

application on appeal . . . surely marks the end of the road for an argument for

reversal not first presented to the district court.”). Accordingly, in affirming the

district court, we acknowledge the possibility that the district court applied the

wrong statute of limitations to Mr. Pettigrew’s RLUIPA claims, but Mr. Pettigrew

is not situated to avail himself of any error in this regard.

Finally, Mr. Pettigrew argues that the district court erred in dismissing

Defendants Jones and Zavaras as parties in this case. Having reviewed the

district court’s order, we find that the district court correctly concluded that these

individuals were improper defendants in a § 1983 action because Mr. Pettigrew

failed to establish that either caused or personally participated in the alleged

violations of Mr. Pettigrew’s rights. Accordingly, we affirm the dismissal of

these defendants for substantially the same reasons as the district court.

11
 B

The remaining two issues that Mr. Pettigrew presents require somewhat

more discussion, though we ultimately agree with the district court that each of

the claims warrants dismissal.

1

Claim two of the amended complaint alleged an Eighth Amendment

violation based on Mr. Pettigrew’s placement in administrative segregation from

January 2005 through March 2010, and from December 2010 through the date of

his amended complaint; specifically, Mr Pettigrew alleged that the administrative-

segregation placement exacerbated his mental illnesses. The district court

dismissed this claim as time-barred. It found, as the magistrate judge previously

had, that the claim accrued well before February 11, 2009 (which would be the

earliest permissible accrual date, given that Mr. Pettigrew initiated this lawsuit on

February 11, 2011).

In particular, the district court found that Mr. Pettigrew’s claim accrued as

early as 2005, “when he was placed in segregation . . . , even if he did not know

the full extent of his injuries until some later point in time.” R. at 228; see id. at

182–83 (Mag. Judge’s Recommendation, filed Jan. 23, 2012) (“[T]he conditions

[Mr. Pettigrew] complains of, . . . and the resulting alleged harm to his mental

health, were allegedly as present in January 2005 as they are currently. [Mr.

Pettigrew] knew, or at the least, through the exercise of reasonable diligence

12
would have known, that these conditions allegedly in violation of his

constitutional rights existed far before the expiration of the statute of

limitations.”).

On appeal, Mr. Pettigrew argues that the district court was wrong in

assuming that he was aware of the harm to his mental health during the full

duration of his time in administrative segregation. Instead, Mr. Pettigrew claims

he was unaware of the adverse effects that this segregation was having on him

until the conditions of his confinement changed after August 2009, when he was

transferred temporarily to a different facility. See Aplt. Opening Br. at 8 (“It was

not until after August of 2009, when [Mr. Pettigrew] was placed in a different

environment, that he finally knew that the isolation from ad-seg worsened his

mental state.”).

While we are not quick to negate the possibility that an individual in Mr.

Pettigrew’s position might not recognize the deleterious mental effects of

prolonged solitary confinement until his circumstances materially change (and,

notably, that solitary confinement ceases), we need not definitively opine on the

merits of Mr. Pettigrew’s argument. That is because, even if we were to agree

with Mr. Pettigrew that his claim did not accrue until after August 2009 (when his

confinement conditions changed), and thus the claim was not time-barred, we

would be obliged to affirm on the alternative ground of qualified immunity. See,

e.g., United States v. Corral, 970 F.2d 719, 726 n.5 (10th Cir. 1992) (“[W]e may

13
affirm a judgment on a basis not relied upon by the lower court if supported by

the record and the law.”); accord Dubbs v. Head Start, Inc., 336 F.3d 1194, 1217

(10th Cir. 2003).

To overcome qualified immunity, Mr. Pettigrew would need to show that

two requirements are met—viz., (1) that Defendants violated one of his

constitutional rights, and (2) that the violated right was “clearly established” at

the time of the violation. See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir.

2010). We need not reach the second requirement here, since Mr. Pettigrew

plainly has not established the existence of an Eighth Amendment violation.

“A prison official’s ‘deliberate indifference’ to a substantial risk of serious

harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511

U.S. 825, 828 (1994). A deliberate-indifference Eighth Amendment claim has an

objective component and a subjective component. See id. at 834. Under the

objective component, a plaintiff must prove that his alleged deprivation was

“sufficiently serious,” i.e., that he was “incarcerated under conditions posing a

substantial risk of serious harm.” Id. (internal quotation marks omitted). To

satisfy the subjective component, a plaintiff must demonstrate that the

defendant—the specific prison official—was aware of and ignored an excessive

risk to the inmate’s health or safety. See id. at 837; Sealock v. Colorado, 218

F.3d 1205, 1209 (10th Cir. 2000).

Here, Mr. Pettigrew clearly has not demonstrated the subjective component

14
of a deliberate-indifference claim. Indeed, for the period prior to August 2009,

Mr. Pettigrew acknowledges that even he was not aware of the risk posed to his

mental health by his incarceration in administrative segregation. Thus, one may

reasonably wonder why the prison-official defendants should be deemed to have

possessed greater knowledge of the risk than Mr. Pettigrew himself. And Mr.

Pettigrew has not identified anything in the record from which we might conclude

that Defendants possessed such knowledge. For the period after August 2009,

when Mr. Pettigrew claims to have recognized that his mental-health problems

were worsening, he offers no specific reason to think that Defendants shared in

his realization, nor does he suggest that he shared his own insight with them.

Indeed, the only indication anywhere in Mr. Pettigrew’s briefs and amended

complaint that prison officials were aware of his deteriorating mental health is

found in his amended complaint’s statement that, after his symptoms began to

worsen, he “had mental health visits about his increased mania and possible

obsessive compulsive disorder.” R. at 117–18. If anything, this statement

suggests that once prison officials became aware of a risk to Mr. Pettigrew’s well-

being, they took steps to address the risk—in other words, it does not suggest that

they recklessly ignored the risk. Thus, we may readily affirm the district court’s

ruling on claim two on the alternative ground that Mr. Pettigrew has not carried

his burden under the qualified-immunity standard to establish that Defendants

committed a deliberate-indifference Eighth Amendment violation.

15
 2

Finally, Mr. Pettigrew appeals from the district court’s dismissal of his

substantive due-process claim. Mr. Pettigrew’s substantive due-process claim

was premised on an allegation that the parole board considered false information

in his prison file concerning his criminal history in reviewing his application for

parole. 6 The district court rejected this claim, noting that “[t]he Due Process

Clause applies to parole proceedings only when the state parole statute creates a

legitimate expectation of release,” R. at 71 (citing Greenholtz v. Inmates of Neb.

Penal & Corr. Complex, 442 U.S. 1, 7 (1979)), and the court ruled that

Colorado’s statute provided no such expectation. Thus, the court concluded that

“[b]ecause Mr. Pettigrew d[id] not have a liberty interest in early release . . . , his

Fourteenth Amendment substantive due process claim [was] legally frivolous.”

Id. at 73. Importantly, in conducting its analysis, the court directly responded to

Mr. Pettigrew’s purported constitutional concern regarding the allegedly false

information in the CDOC’s files, and thereby forged a nexus between the absence

6
We underscore that, as explained in note 3, supra, Mr. Pettigrew has
preserved his challenge to the district court’s dismissal of his substantive due-
process claim through diligent pursuit of that argument in all proceedings before
the district court. Consequently, we address this argument even though it was not
raised in Mr. Pettigrew’s amended complaint or addressed in the district court’s
final order of dismissal. Nonetheless, we reiterate that Mr. Pettigrew has only
preserved this challenge insofar as it concerns any allegations regarding the
denial of parole; he has waived the right to argue a substantive due-process
violation insofar as it concerns the denial of community-corrections placement.

16
of a liberty interest and his concern. Specifically, the court noted that, since he

did not have a constitutionally protected liberty interest in early release, “Mr.

Pettigrew [could not] invoke § 1983 as a basis for challenging the validity of the

information considered by the parole board or the adequacy of the process of

correcting the information.” Id. at 72 (citing Orellana v. Kyle, 65 F.3d 29, 31–32

(5th Cir. 1995) (per curiam)).

Having closely reviewed the record and briefs, we agree with the district

court’s outcome, and (as far as it goes) we are in substantial agreement with its

reasoning. However, drawing on various and disparate strands of authority, Mr.

Pettigrew vigorously contends that the district court misunderstood the thrust of

his argument and, consequently, reached the wrong outcome. We pause to

address Mr. Pettigrew’s most salient contentions in this regard.

Mr. Pettigrew insists that the district court’s analysis is misguided because

it rests on procedural due-process authorities, such as the Supreme Court’s

Greenholtz decision, and consequently wrongly deems fatal his lack of a liberty

interest in early release from prison. According to Mr. Pettigrew, he does not

dispute that he has no liberty interest in early release from incarceration, but

rather, he contends that state law does confer on him a constitutionally protected

liberty interest in a fair parole hearing and that he also has a liberty interest in his

reputation. And furthermore, at bottom, he insists that his claim rests on an

infringement of substantive due-process rights.

17
 a

Mr. Pettigrew’s claimed liberty interest in a fair parole proceeding rests on

Colorado statutes that (as he reads them) require, inter alia, the parole board to

consider paroling inmates annually once they reach their parole eligibility date

and to keep accurate records. But Mr. Pettigrew’s argument in this regard is

misguided: he is attempting to alchemically transform a purported entitlement to

certain procedures into a constitutionally protected liberty interest; however,

controlling precedent makes clear that such an attempt must end in failure. See

Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir. 2012) (noting, regarding the

Due Process Clause, that “the protected interests are substantive rights, not rights

to procedure”); see also Olim v. Wakinekona, 461 U.S. 238, 250 n.12 (1983)

(“[A]n expectation of receiving process is not, without more, a liberty interest

protected by the Due Process Clause.”); Shirley v. Chestnut, 603 F.2d 805,

806–07 (10th Cir. 1979) (per curiam) (noting that “appellants sought a declaration

that the Due Process Clause of the Fourteenth Amendment requires published

criteria for parole release, access to adverse material in inmate files, right to

subpoena witnesses at the hearing, and written reasons for the denial of parole”

and holding that “[i]n the absence of such liberty interest, the specific due process

procedures requested by the appellants are not applicable”); cf. Montero v. Meyer,

13 F.3d 1444, 1447 (10th Cir. 1994) (“Whether an interest created by state law

rises to the level of a ‘liberty interest’ protected by the Due Process Clause of the

18
Fourteenth Amendment is a matter of federal law.”).

By reference to the purported fairness of the State’s parole procedures, Mr.

Pettigrew cannot escape the inescapable: the gravamen of his concern is the

parole board’s “denials of parole,” Aplt. Opening Br. at 14; yet, by his own

admission, Mr. Pettigrew possesses no liberty interest that has been directly

infringed by these denials. Accordingly, Mr. Pettigrew’s asserted right to fair

parole procedures is unavailing in this context. 7 See Orellana, 65 F.3d at 32

(“[B]ecause Orellana has no liberty interest in obtaining parole in Texas, he

cannot complain of the constitutionality of procedural devices attendant to parole

decisions.”).

Under a similar logic, Mr. Pettigrew’s asserted liberty interest in his

reputation does not advance his cause. “Damage to one’s reputation alone . . . is

not enough to implicate due process protections.” Gwinn v. Awmiller, 354 F.3d

1211, 1216 (10th Cir. 2004); see Paul v. Davis, 424 U.S. 693, 701 (1976) (“While

we have in a number of our prior cases pointed out the frequently drastic effect of

the ‘stigma’ which may result from defamation by the government in a variety of

7
Although we have suggested in the parole context that “an
expectation [such as Mr. Pettigrew’s], with attendant due process rights, may also
be based on regulations, policies, understandings, contractual arrangements or
institutional practices,” Candelaria v. Griffin, 641 F.2d 868, 870 n.2 (10th Cir.
1981) (per curiam) (internal quotation marks omitted), this limited exception also
lends Mr. Pettigrew no aid because, as was true in Candelaria, he “has not
alleged such factors in his complaint,” id.

19
contexts, this line of cases does not establish the proposition that reputation

alone . . . is either ‘liberty’ or ‘property’ by itself sufficient to invoke the

procedural protection of the Due Process Clause.”).

Rather, a plaintiff in this context “must demonstrate,” inter alia, that “the

plaintiff experienced some governmentally imposed burden that ‘significantly

altered [his or] her status as a matter of state law.’” Gwinn, 354 F.3d at 1216

(alteration in original) (quoting Paul, 424 U.S. at 710–11). In this regard, Mr.

Pettigrew contends that the parole board’s use of “blatantly false information in

his [C]DOC file” had the effect of “changing his inmate status.” Aplt. Opening

Br. at 15. But it is patent from his briefing that the purported change in his status

that Mr. Pettigrew bewails stems from the parole board’s decision to keep him

incarcerated and thus “to deny his freedom,” id.—that is, to deny him release on

parole. Yet, as we have noted—and Mr. Pettigrew does not dispute—he does not

possess a substantive state-law right to a status involving such release.

Accordingly, Mr. Pettigrew’s assertion of reputational harm does in fact stand

“alone” and, therefore, “is not enough to implicate due process protections.”

Gwinn, 354 F.3d at 1216.

b

In insisting that the district court was misguided in relying on Greenholtz

and its procedural due-process progeny in deciding that the absence of a liberty

interest was fatal to his due-process claim—which he has labeled a substantive

20
due-process claim—Mr. Pettigrew notably cites the Third Circuit’s decision in

Block v. Potter, 631 F.2d 233 (3d Cir. 1980). There, the court held the following:

“Even if a state statute does not give rise to a liberty interest in parole release

under Greenholtz, once a state institutes a parole system all prisoners have a

liberty interest flowing directly from the due process clause in not being denied

parole for arbitrary or constitutionally impermissible reasons.” Id. at 236.

Block has been interpreted as holding that “denial of parole may give rise to

a substantive due process violation even though there is no liberty interest in

parole.” Rauso v. Vaughn, No. CIV. A. 98-CV-6312, 1999 WL 111474, at *1

(E.D. Pa. Mar. 2, 1999); see Wildermuth v. Furlong, 147 F.3d 1234, 1239 n.7

(10th Cir. 1998) (Anderson, J., dissenting) (citing Block and noting that “at least

one circuit, the Third, has held that although an inmate may have no liberty

interest in parole, and thus no procedural due process claim, that inmate may

nevertheless bring a substantive due process claim”); see also Aplt. Opening Br.

at 13 (noting that the “Block [inmate] does not claim to have a liberty interest in

parole that must be preserved by procedural safeguards but rather states that

otherwise satisfactory procedures were applied arbitrarily and in an impermissible

manner, thus Greenholtz did not apply” (first italics added)). But see Burkett v.

Love, 89 F.3d 135, 140 (3d Cir. 1996) (describing “Block’s premise” in equal-

protection terms); Robles v. Dennison, 745 F. Supp. 2d 244, 294 (W.D.N.Y. 2010)

(“Although the Block court characterized the petitioner’s argument as a due

21
process claim, given its use of the term ‘liberty interest’, the facts of the [case]

suggest that it was an equal protection issue.”).

“However, not only has this position [of Block] been rejected by other

circuits . . . , but it has also been called into doubt by the Third Circuit itself.”

Wildermuth, 147 F.3d at 1239 n.7 (Anderson, J., dissenting); see Bell v. Anderson,

301 F. App’x 459, 462 (6th Cir. 2008) (per curiam) (“Unfortunately for the

petitioner, the reasoning [of, inter alia, Block] . . . has not been adopted in this

circuit. Moreover, that analysis has been criticized by other courts.”); Robles,

745 F. Supp. 2d at 293 n.16 (“Courts within the Third Circuit as well as courts

from outside that circuit have criticized Block.”). That Block has been so roundly

rejected is not entirely surprising, since its holding at least arguably divorces

certain substantive due-process claims from their textual grounding in the

Constitution; specifically, a plaintiff need not demonstrate under Block that he has

been deprived of a “liberty” interest in the parole proceeding at issue. Compare

Block, 631 F.2d at 236 (“Even if a state statute does not give rise to a liberty

interest in parole release under Greenholtz, once a state institutes a parole system

all prisoners have a liberty interest flowing directly from the due process

clause . . . .” (emphasis added)), with U.S. Const. amend. XIV, § 1 (“[N]or shall

any State deprive any person of life, liberty, or property, without due process of

law . . . .” (emphases added)); see Steffey v. Orman, 461 F.3d 1218, 1221 (10th

Cir. 2006) (“A due process claim under the Fourteenth Amendment can only be

22
maintained where there exists a constitutionally cognizable liberty or property

interest with which the state has interfered.”); see also Hyde Park Co. v. Santa Fe

City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (“[T]o prevail on either a

procedural or substantive due process claim, a plaintiff must first establish that a

defendant’s actions deprived plaintiff of a protectible property interest.”); Rosalie

Berger Levinson, Protection Against Government Abuse of Power: Has the Court

Taken the Substance Out of Substantive Due Process, 16 U. Dayton L. Rev. 313,

360 (1991) (“Assuming that a property or liberty interest within the historically

broad meaning of those terms has been adversely affected by intentional or

recklessly indifferent government misconduct, federal courts should recognize a

viable substantive due process claim.” (emphasis added) (footnotes omitted)); cf.

2 Roland D. Rotunda & John E. Nowak, Treatise on Constitutional

Law § 14.6(a)(ii), at 723 (5th ed. 2012) (“The concept the Court employs to

control the substance of legislation under the due process clause is that certain

types of lawmaking go beyond any proper sphere of governmental activity. . . .

The judicial premise for this position is that any life, liberty or property limited

by such a law is taken without due process because the Constitution never granted

the government the ability to pass such a law.” (emphasis added)).

Moreover, Mr. Pettigrew does not suggest—nor does our research

indicate—that we have ever adopted a holding akin to that in Block. See

Wildermuth, 147 F.3d at 1239 n.8 (Anderson, J., dissenting) (“Our circuit has not

23
directly addressed this issue in a published opinion, but in an unpublished opinion

we cited Greenholtz and concluded there was no substantive due process violation

where there was no liberty interest in parole.” (citing Reed v. Hinckley, 951 F.2d

1260, 1991 WL 268915, at *1 (10th Cir. Dec. 10, 1991))). 8 In light of the

prevailing unfavorable view of Block among our sister circuits, and in the absence

of any cogent arguments from Mr. Pettigrew, we are disinclined to adopt Block’s

substantive due-process reasoning here.

Even if we did so, however, Block would not lend Mr. Pettigrew any

succor. “Where the Third Circuit has found arbitrary action to qualify as a

cognizable due process claim, it has done so only upon the establishment of

egregiously arbitrary actions.” Bell, 301 F. App’x at 462. The bar to obtain relief

under this rubric “is an exceptionally high one.” Id. In this regard, there is no

suggestion here that the parole board denied Mr. Pettigrew relief “on the basis of

race, religion, or political beliefs,” which, as Block intimated, might satisfy that

standard. 631 F.2d at 236 n.2. And, although Mr. Pettigrew asserts that “his case

manager verified that false information was in his [C]DOC file,” Aplt. Opening

8
In denying the prisoner’s 28 U.S.C. § 2254 petition on the merits,
rather than dismissing it “[b]ecause [Petitioner] does not allege the violation of a
federal right,” Wildermuth, 147 F.3d at 1239 (Anderson, J., dissenting), the
majority in Wildermuth was completely silent regarding Judge Anderson’s
alternate path for rejecting Petitioner’s claims and did not cite, much less endorse,
the substantive due-process position of Block. So, we do not view the Wildermuth
majority as addressing—one way or the other—the precise issue before us today.

24
Br. at 16, Mr. Pettigrew has not established that the parole board itself was aware

that it was acting on false information regarding his criminal background, and

Defendants do not concede as much in their briefing before us. Thus, at most,

Mr. Pettigrew’s assertions indicate that the parole board may have acted

unwittingly or negligently in denying him relief, and such unintentional conduct

does not implicate the Due Process Clause. See Daniels v. Williams, 474 U.S.

327, 332 (1986) (“Far from an abuse of power, lack of due care suggests no more

than a failure to measure up to the conduct of a reasonable person. To hold that

injury caused by such conduct is a deprivation within the meaning of the

Fourteenth Amendment would trivialize the centuries-old principle of due process

of law.”). Compare Monroe v. Thigpen, 932 F.2d 1437, 1441–42 (11th Cir. 1991)

(rejecting defendants’ argument that “because there is no liberty interest in parole

release or in a particular security classification [Plaintiff] has no right to due

process in the procedures relating to parole release” and that “so long as the

Alabama parole statute confers no liberty interest in parole they may rely on

admittedly false information in denying parole without offending the Due Process

Clause” (emphasis added)), with Parker v. Dinwiddie, No. 08-6124, 2009 WL

175053, at *1–2 (10th Cir. Jan. 27, 2009) (citing Monroe and noting that “[w]e

have not adopted (and do not now adopt) the Eleventh Circuit’s due process

construction but, even if we were to do so, [Petitioner] has not alleged the

necessary facts to support his claim,” in that he “failed to allege the state officials

25
relied on admittedly false information in the decision to deny parole” (emphasis

added)).

c

Lastly, Mr. Pettigrew seeks shelter in our explication of the Supreme

Court’s substantive due-process jurisprudence in Seegmiller v. LaVerkin City, 528

F.3d 762 (10th Cir. 2008). There, we observed, “The Supreme Court has

described two strands of the substantive due process doctrine. One strand

protects an individual’s fundamental liberty interests, while the other protects

against the exercise of governmental power that shocks the conscience.” Id. at

767. Regarding these two strands, Mr. Pettigrew avers that “he actually satisfies

both.” Aplt. Opening Br. at 15. We disagree.

“A fundamental right or liberty interest is one that is ‘deeply rooted in this

Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”

Seegmiller, 528 F.3d at 767 (quoting Chavez v. Martinez, 538 U.S. 760, 775

(2003)). If, as the Supreme Court instructs, “[t]here is no constitutional or

inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence,” Greenholtz, 442 U.S. at 7—and, indeed, Mr.

Pettigrew even concedes that he has no state-law interest of this sort—we are

hard-pressed to see how Mr. Pettigrew could plausibly claim that his interest “in

his good name,” Aplt. Opening Br. at 15—or, for that matter, any other interests

related to his efforts to be released from incarceration before the expiration of his

26
term—could constitute a “fundamental liberty interest,” Chavez, 538 U.S. at 775,

as understood by the Supreme Court. See Robles, 745 F. Supp. 2d at 290 (“The

Supreme Court has held that a convicted petitioner has no right to release from

prison before the expiration of a valid sentence. Clearly, then, the possibility of

parole release cannot qualify as one of the fundamental rights and liberties which

are, objectively, deeply rooted in this Nation’s history and tradition, and implicit

in the concept of ordered liberty, such that neither liberty nor justice would exist

if they were sacrificed . . . .” (quoting Washington v. Glucksberg, 521 U.S. 702,

721 (1997)) (internal quotation marks omitted)). Accordingly, Mr. Pettigrew has

not satisfied the first strand of the substantive due-process doctrine.

Mr. Pettigrew likewise cannot satisfy the second strand of this doctrine.

“Conduct that shocks the judicial conscience [in the context of substantive due

process] . . . is deliberate government action that is ‘arbitrary’ and ‘unrestrained

by the established principles of private right and distributive justice.’”

Seegmiller, 528 F.3d at 767 (emphasis added) (quoting Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998)). Putting aside Mr. Pettigrew’s failure to

establish the legal predicate of a protected liberty interest, the reasons that led us

to reject the application of the arbitrary-conduct rubric of Block in the

immediately preceding section (Part III.B.2.b, supra) lead us ineluctably to the

same result in this section: we conclude that the parole board’s denial of relief to

Mr. Pettigrew—which, at most (on this record), may have been inadvertently or

27
negligently based in part on false information—does not come close to shocking

the judicial conscience. Accordingly, Mr. Pettigrew cannot prevail on the merits.

In sum, we conclude that the district court correctly rejected Mr.

Pettigrew’s substantive due-process claim.

IV

For the foregoing reasons, the judgment of the district court is

AFFIRMED. Although he did not prevail, we find that Mr. Pettigrew “has

demonstrated . . . the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted),

and, accordingly, his motion to proceed IFP on appeal is GRANTED.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

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