Brewer v. Gilroy

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

FOR THE TENTH CIRCUIT September 1, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DANNY DEWAYNE BREWER,

Plaintiff - Appellant,

v. No. 15-7027
(D.C. No. 6:13-CV-00471-RAW-SPS)
DEANA GILROY, Sergeant; FNU (E.D. Oklahoma)
PAVLUKEVICK, Corrections Officer;
JIMMY MARTIN, Warden’s
Administrative Assistant; ART LIGHTLE,
Deputy Warden; TERRY CRENSHAW;
WILLIAM TAYLOR; JUSTIN JONES;
MARK KNUTSON; SHEARWOOD;
PARKER; CAPTAIN RIDDLE; KEN
YOTT; RANDY KNIGHT; OFFICER
PINLEY,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________

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

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

*
This order and judgment is not binding precedent, except under the doctrines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 Rule 32.1 of the Federal Rules of Appellate
Procedure and Tenth Circuit Rule 32.1.
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.

Danny Dewayne Brewer, an Oklahoma State prisoner proceeding pro se,1

appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint, in which he

alleges that prison officials violated his constitutional rights. Exercising jurisdiction

under 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND

This case arises out of Mr. Brewer’s complaint, filed in the United States

District Court for the Eastern District of Oklahoma, seeking relief pursuant to 42

U.S.C. § 1983 for alleged constitutional violations that occurred during Mr. Brewer’s

incarceration in the custody of the Oklahoma Department of Corrections (ODOC).

Mr. Brewer’s complaint alleges that while he was incarcerated in the Davis

Correctional Facility (DCF), Corrections Officer Sergeant Deanna Gilroy repeatedly

sexually assaulted him in violation of his Eighth Amendment rights. Mr. Brewer filed

a grievance with DCF setting forth his claims of sexual abuse against Defendant

Gilroy and requesting that “[Defendant] Gilroy . . . be investigated and the witnesses

that I mention be questioned.” Although DCF staff investigated the grievance,

Mr. Brewer claims two DCF employees, identified as Defendant Captain Riddle and

Defendant Corrections Officer Pinley, failed to properly investigate the alleged

1
Because Mr. Brewer proceeds pro se, we construe his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

2
sexual assault.2 Mr. Brewer charges that Defendants Riddle’s and Pinley’s

investigation exhibited deliberate indifference to the alleged assault and violated

Mr. Brewer’s constitutional rights under the Eighth and Fourteenth Amendments.

Mr. Brewer also raises a similar claim against a DCF employee identified as

Corrections Officer Fnu Pavlukevick.

In addition, the complaint alleges that after Mr. Brewer reported the sexual

assault, Jimmy Martin, the administrative assistant to the DCF Warden, conspired

with Internal Affairs Officers and Oklahoma State Penitentiary (OSP) Deputy

Warden, Art Lightle, to transfer Mr. Brewer to OSP in order to prevent him from

filing the instant lawsuit.

Mr. Brewer further claims the prison conditions at OSP violated his Eighth and

Fourteenth Amendment rights. Specifically, he asserts he was placed in various unlit

cells that smelled of urine, feces, and sewage. He also claims OSP officials did not

give him a mattress, bedroll, or adequate food and water.

Mr. Brewer infers that these prison conditions were the product of racial

discrimination. He claims there is a history of racial discrimination at OSP and that

all high-ranking corrections officers are white. According to Mr. Brewer, various

OSP employees, including Defendant Lightle, used racial epithets when referring to

President Barack Obama or African-American prisoners.

2
Mr. Brewer sometimes refers to Defendant Pinley as Officer Pentley.

3
 Mr. Brewer claims he submitted to the ODOC several administrative

grievances challenging the prison conditions at OSP, two to Warden Randall

Workman and one to Director’s Designee Debbie Morton, but received no response.

Mr. Brewer also alleges he filed several emergency grievances to the ODOC

Director’s Designee, Defendant Mark Knutson, claiming racial discrimination and a

lack of water in his cell because the faucet was broken. Mr. Brewer claims Defendant

Knutson refused to address these grievances.

Defendants Crenshaw, Jones, 3 Knutson, Parker, Sherwood, Taylor, and Lightle

filed a motion to dismiss on the ground that Mr. Brewer failed to establish their

personal participation in any constitutional violations. Defendants Riddle and Pinley

also filed a motion to dismiss, arguing that Mr. Brewer had failed to properly exhaust

his administrative remedies as to them. In response, Mr. Brewer filed three motions

to amend his complaint, asserting in relevant part that he should be entitled to name

additional defendants, including Internal Affairs Officers Randy Knight and Ken

Yott.4

The district court agreed with Defendants Crenshaw, Jones, Knight, Knutson,

Parker, Sherwood, Taylor, and Lightle that Mr. Brewer’s claims of constitutional

violations were vague, conclusory, and failed to sufficiently assert that these named

3
The complaint names former ODOC Director Justin Jones, but Mr. Brewer
does not identify any allegations of specific misconduct on the part of this defendant.
4
Neither Officer Knight nor Officer Yott was served with the complaint. But
Officer Knight entered an appearance in the district court.

4
defendants had personally violated Mr. Brewer’s constitutional rights. See Brewer v.

Gilroy, No. CIV 13-471-RAW-SPS, 2015 U.S. Dist. LEXIS 33393, at *19 (E.D.

Okla. Mar. 18, 2015) (“Personal participation is an essential allegation in a § 1983

claim.” (quoting Bennett v. Passic, 545 F.2d 1260, 1262–63 (10th Cir. 1976))). The

district court also dismissed without prejudice Mr. Brewer’s claims that Defendants

Riddle and Pinley failed to properly investigate the sexual assault allegations against

Defendant Gilroy because Mr. Brewer had failed to exhaust his administrative

remedies with respect to those claims.5 Id. at *12-*13, *22. Ultimately, the court

found the complaint frivolous,6 dismissed the action in its entirety, and assessed a

strike against Mr. Brewer.7 Id. at *23; see Smith v. Veterans Admin., 636 F.3d 1306,

1313 (10th Cir. 2011) (“Under the PLRA, prisoners obtain a ‘strike’ against them for

purposes of future IFP eligibility when their action or appeal in a court of the United

States . . . [is] dismissed on the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted . . . .” (first and third alterations in original)

5
The district court dismissed without prejudice Mr. Brewer’s claims against
Defendants Gilroy, Pavlukevick, and Martin because the United States Marshals
Service was unable to serve them due to Mr. Brewer’s failure to provide their current
addresses. See Fed. R. Civ. P. 4(m); 12(b)(5) (permitting dismissal for insufficient
service of process). Mr. Brewer has not challenged the court’s dismissal of the claims
against these defendants and we do not consider them further.
6
In dismissing the case as frivolous, the district court also found “there are no
allegations that Internal Affairs Officers Knight and Yott personally participated in
constitutional violations against plaintiff.” Brewer v. Gilroy, No. CIV 13-471-RAW-
SPS, 2015 U.S. Dist. LEXIS 33393, at *19 (E.D. Okla. Mar. 18, 2015).
7
Mr. Brewer has not challenged the district court’s imposition of a strike
against him on appeal.

5
(internal quotation marks omitted)); see also Childs v. Miller, 713 F.3d 1262, 1266

(10th Cir. 2013) (“In this circuit, it is immaterial to the strikes analysis that the

dismissal was without prejudice.”).

Mr. Brewer timely appealed, and the district court, which had granted

Mr. Brewer leave to file his complaint in forma pauperis (IFP) under 28 U.S.C.

§ 1915 (see Dkt. No. 5),8 also granted Mr. Brewer leave to proceed IFP on appeal.

See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“[I]n order to

succeed on a motion to proceed IFP, the movant must show a financial inability to

pay the required filing fees, as well as the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised in the action.”).

II. DISCUSSION

On appeal, Mr. Brewer challenges the district court’s exhaustion ruling and

persists in his claim that Defendants Crenshaw, Jones, Knight, Knutson, Parker,

Sherwood, Taylor, and Lightle violated his constitutional rights during his

incarceration at OSP. In addition, he argues the district court improperly overlooked

his claim of civil conspiracy against DCF and OSP employees for allegedly

conspiring to transfer him to OSP to prevent him from filing the instant lawsuit. He

also claims the district court should have permitted him to amend his complaint to

cure any deficiencies rather than to dismiss it with prejudice. We first consider the

district court’s exhaustion ruling before turning to the merits of Mr. Brewer’s

8
All references to district court docket numbers will be in the format “Dkt.
No. __” and refer to the district court filings in this case.

6
constitutional claims. Finally, we address whether the district court properly

dismissed Mr. Brewer’s complaint without permitting him to amend.

A. Exhaustion of Administrative Remedies

We review de novo the district court’s determination that Mr. Brewer’s

constitutional claims against Defendants Riddle and Pinley were barred for failure to

exhaust his administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032

(10th Cir. 2002). Under the Prison Litigation Reform Act (PLRA), prisoners are

required to exhaust their administrative remedies before initiating an action to

vindicate federally protected rights. 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.”). The exhaustion

requirement is an affirmative defense. Therefore, defendants “bear the burden of

asserting and proving that the plaintiff did not utilize administrative remedies.”

Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). “Once a defendant proves

that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that

remedies were unavailable to him . . . .” Id.

Here, we have little difficulty concluding Mr. Brewer’s claims against

Defendants Riddle and Pinley are barred for failure to exhaust administrative

remedies. Although Mr. Brewer filed an administrative grievance regarding the

alleged sexual assault, he did not assert the constitutional claims he now brings

against these defendants for failure to adequately investigate his allegations. And

7
Mr. Brewer points to nothing that convinces us that acts of prison officials rendered

those administrative remedies unavailable. Cf. Little v. Jones, 607 F.3d 1245, 1250

(10th Cir. 2010) (holding that exhaustion is not required “[w]here prison officials

prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative

remedy”). Rather, the administrative grievance process appears to have been

available to Mr. Brewer at both the DCF and OPS facilities. See Patel v. Fleming,

415 F.3d 1105, 1111 (10th Cir. 2005) (holding that a prisoner failed to exhaust

administrative remedies where, after he was transferred to a different facility, he

failed to timely file his grievance); Gonyea v. Mink, 206 F. App’x 745, 747 (10th Cir.

2006) (rejecting inmate’s claim that grievance process was unavailable where he

could have filed a grievance against a county prison after his transfer to a county jail

and in fact had filed multiple administrative requests with the jail).9 Thus, the district

court properly dismissed without prejudice Mr. Brewer’s claims against Defendants

Riddle and Pinley.

B. Dismissal for Failure to State a Claim

Next, we consider whether the district court properly dismissed Mr. Brewer’s

claims against Defendants Crenshaw, Jones, Knight, Knutson, Parker, Sherwood,

Taylor, and Lightle for failure to state a plausible claim that any named defendant

violated Mr. Brewer’s constitutional rights. The district court granted these

9
Though not binding, we find unpublished decisions from this court to be
persuasive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential,
but may be cited for their persuasive value.”).

8
defendants’ 12(b)(6) motion to dismiss these claims and, acting sua sponte, it also

dismissed Mr. Brewer’s IFP complaint as frivolous under 28 U.S.C. § 1915.10

We review de novo a district court’s dismissal pursuant to Rule 12(b)(6) and,

although we construe Mr. Brewer’s pro se complaint liberally,11 “our role is not to act

as his advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). We

also review de novo the district court’s decision to dismiss an IFP complaint under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. See Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). And “[w]e apply the same standard of review for

dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil

Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Id.; see also

McKinley v. Maddox, 493 F. App’x. 928, 931 (10th Cir. 2012) (same).

To determine under Rule 12(b)(6) whether Mr. Brewer has sufficiently stated

his claims, we accept as true the well-pled factual allegations and consider whether

he has provided “enough facts to state a claim to relief that is plausible on its face.”

See Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 547 (2007)). Because Mr. Brewer is bringing his claims

pursuant to § 1983, his complaint “must plead that each Government-official

10
This Section provides that “the court shall dismiss the case at any time if the
court determines that . . . the action . . . is frivolous [or] fails to state a claim on
which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).
11
“This liberal treatment is not without limits, and ‘this court has repeatedly
insisted that pro se parties follow the same rules of procedure that govern other
litigants.’” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting Garrett v.
Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)).

9
defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The complaint must

therefore “contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face’” as to the specific constitutionally impermissible actions

allegedly committed by each named defendant to survive a motion to dismiss as to

each defendant. Id. at 678 (quoting Twombly, 550 U.S. at 570). “Conclusory

allegations are not enough to withstand a motion to dismiss.” Gallagher, 587 F.3d at

1068.

Mr. Brewer’s complaint, read liberally, asserts that (1) the prison conditions at

OSP constituted cruel and unusual punishment and denied him due process; (2) OSP

and ODOC prison officials refused to address grievances submitted through the

mandatory prisoner grievance process in violation of his Fifth and Fourteenth

Amendment due process rights; (3) OSP and ODOC prison officials racially

discriminated against him in violation of equal protection; and (4) DCF and OSP

employees conspired to transfer him to OSP to prevent him from filing the instant

lawsuit.

In considering the sufficiency of the allegations in the complaint supporting

these claims, we conclude the district court properly dismissed Mr. Brewer’s

complaint.

1. Challenge to the Prison Conditions at OSP

Mr. Brewer’s challenges to the prison conditions at OSP arise under the Eighth

and Fourteenth Amendments to the U.S. Constitution. “The Eighth Amendment,

10
which applies to the States through the Due Process Clause of the Fourteenth

Amendment, prohibits the infliction of cruel and unusual punishments on those

convicted of crimes.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 809 (10th Cir.

1999) (quoting Wilson v. Seiter, 501 U.S. 294, 296–97 (1991)). The Eighth

Amendment requires that prison officials “provide humane conditions of confinement

by ensuring inmates receive the basic necessities of adequate food, clothing, shelter,

and medical care and by taking reasonable measures to guarantee the inmates’

safety.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (internal quotation

marks omitted). Likewise, “[t]he Fourteenth Amendment prohibits any State from

depriving a person of life, liberty, or property without due process of law.” Perkins,

165 F.3d at 808 (quoting Meachum v. Fano, 427 U.S. 215, 223 (1976)). “A prisoner’s

liberty interests may arise . . . from state law.” Id. But state-created liberty interests

are generally limited to conditions that impose “atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” Id. (quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995)). As noted, “[i]n determining whether a dismissal

is proper, we must accept the allegations of the complaint as true and construe those

allegations, and any reasonable inferences that might be drawn from them, in the

light most favorable to the plaintiff.” Kay, 500 F.3d at 1217 (internal quotation marks

omitted).

a. Abuses by prison employees not named as defendants

Mr. Brewer asserts prison officials at OSP violated his constitutional rights

when they placed him in unlit cells that smelled of urine, feces, or sewage, and

11
refused to give him a mattress, bedroll, or adequate food and water. According to

Mr. Brewer, he was denied food entirely for seven days. He further alleges that at

other times, prison employees threw food into his cell so that he would have to eat

off the floor.

Taken as true, these allegations might well support a plausible claim under the

Eighth or Fourteenth Amendments.12 However, Mr. Brewer’s claims based on these

allegations fail because the named defendants are not the individuals Mr. Brewer

claims were personally involved in these alleged abuses.

For instance, Mr. Brewer alleges that on the day of his transfer to OSP, March

4, 2012, a Sergeant Hammell and Corporal Crenshaw, the son of named defendant

Terry Crenshaw, denied him food at lunch and dinner. Other than the fact that Terry

Crenshaw and Corporal Crenshaw are father and son, respectively, Mr. Brewer

provides no explanation why the named defendant, Terry Crenshaw, should be liable

for the alleged conduct of Corporal Crenshaw, who is not named as a defendant.

12
Compare Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (finding
no constitutional violation where plaintiffs were temporarily placed in a filthy cell
with inadequate lighting and ventilation, there was a lack of enclosures around the
shower and toilet, the prison provided unappetizing food, and there was no access to
recreational facilities), with Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir.
1996) (concluding prisoner sufficiently alleged constitutional violation where he
claimed he was “provided no mattress, blankets or bedding of any kind, . . . not
allowed to leave his cell for exercise, not provided with writing utensils, not provided
with adequate ventilation, . . . and only sometimes allowed minimal amounts of toilet
paper,” and “[t]hese conditions supposedly lasted for a period of days, weeks and
months”).

12
 Mr. Brewer further alleges that because the cell to which he was initially

assigned had no lights or working plumbing, Mr. Brewer covered the window to get

attention. He alleges a Captain Kennedy responded and moved him to another cell

that had functioning plumbing, but also lacked working lights. Mr. Brewer claims he

told Captain Kennedy he had not been fed, but Captain Kennedy responded that it

was 1:30 a.m. and the kitchen was closed. According to Mr. Brewer, he then went

seven consecutive days and nights without food.

Mr. Brewer identifies the person responsible for bringing his food as Sergeant

Spears13 and alleges Ms. Spears explained to him that Deputy Warden Art Lightle

had imposed a seven day sack lunch restriction on Mr. Brewer but the kitchen was

not sending the sack lunches. When Mr. Brewer asked for one of the trays of food

visible on Ms. Spears’ food cart, she allegedly refused, explaining that the sack lunch

restriction prohibited him from having a tray lunch, even if the kitchen was not

actually sending the sack lunches.

Mr. Brewer further asserts that an African American corrections officer,

Sergeant Richard Buie, brought Mr. Brewer sack lunches during his shifts. When

Mr. Brewer informed Lieutenant Glover, Ms. Spears’ superior, that Ms. Spears was

not bringing him food, Lieutenant Glover claimed to have seen Mr. Brewer receive

every meal over the security cameras. Mr. Brewer alleges that after Sergeant Buie

13
Mr. Brewer’s complaint makes allegations against two corrections officers
who are married to each other and are both identified as Sergeant Spears in the
record. For clarity and because the record does not provide a first name for
Ms. Spears, we refer to them as Mr. and Ms. Spears in this decision.

13
told the kitchen to send sack lunches to Mr. Brewer, Ms. Spears withheld them, even

when he could see his name and cell number on sack lunches on her cart. But

Mr. Brewer has not named Ms. Spears, Captain Kennedy, or Lieutenant Glover as

defendants in this action.

Mr. Brewer asserts he informed Chief Peters that he had not received his sack

lunches for seven days (except for, presumably, the lunches Sergeant Buie brought

him). In response, Chief Peters allegedly agreed to have his lieutenants personally

bring Mr. Brewer his lunches. Mr. Brewer contends Lieutenant Glover and

Lieutenant Jowels thereafter threw Mr. Brewer’s food into his cell so that he would

have to eat it off the floor, which he claims contained puddles of water from leaks in

the quad’s roof that had seeped in under the door of his cell. Mr. Brewer also failed

to name Lieutenant Jowels as a defendant in his complaint.

Mr. Brewer next alleges he was moved to a different quad where Ms. Spears’

husband, Sergeant David Spears, was responsible for food delivery. Mr. Spears and

an Officer Heartfield allegedly told the inmate “run man”14 on the quad that he would

fire him if he gave Mr. Brewer anything. Mr. Brewer claims his new cell again had

no functioning lighting, and he could see and smell raw sewage coming up from the

pipes. According to Mr. Brewer he was not provided with a mattress or bed roll for

seven days and was eating only every other day. When a new inmate run man was

14
“The run man is responsible for cleaning the Quad and passing out tea, juice,
milk, coffee, toilet tissue, clothing, and indigent hygiene items.” Brewer, 2015 U.S.
Dist. LEXIS 33393, at *16.

14
assigned to the quad, Mr. Brewer alleges Officer Heartfield repeated his instruction

that Mr. Brewer not be given anything from the cart.15 Mr. Brewer claims he

complained to corrections officers Sergeant Taylor16 and Sergeant Hands, who

refused to intervene. Mr. Spears, Officer Heartfield, Sergeant Taylor, and Sergeant

Hands are also not named as defendants in this action.

Mr. Brewer further alleges that a year after complaining about these issues,

Deputy Warden Art Lightle and Unit Manager William Taylor moved him to a high

max cell.17 According to Mr. Brewer, unnamed corrections officers again denied him

food for several days after the move. Mr. Brewer does not identify the prison officials

who allegedly withheld food from him while he was housed in a high max cell and

offers no allegations connecting these activities to any named defendants.

15
Mr. Brewer adds here an allegation that seems to imply that named
defendant Case Manager Sherwood joined Officer Heartfield in this statement to the
run man. However, this sole allegation in the complaint relating to Keith Sherwood
(reading, in its entirety, “also the case manager Sharewood!”) is simply too tenuous
to implicate him, even if the denial of access to items from the run man’s cart could
rise to the level of a constitutional violation.
16
Although it is unclear from the allegations in the complaint, this Sergeant
Taylor appears to be a different individual than the named Unit Manager William
Taylor, based on the plainest reading of the language in the complaint.
17
Although Mr. Brewer does not provide further details about this in his
complaint beyond noting that such a move is usually for punishment and he believes
he had not been guilty of any misconduct since he arrived at OSP, in one of the
grievance notices he attached to his complaint, he explains that he was moved to a
high max cell for allegedly throwing something on the run man.

15
 b. Allegations against named defendants

The district court correctly dismissed Mr. Brewer’s claims, despite his detailed

factual allegations, because he failed to allege that any named defendant personally

participated in the alleged deprivations. See Mitchell, 80 F.3d at 1441 (affirming

district court’s dismissal of claim where plaintiff failed to link the named appellees to

the unconstitutional action, and holding that supervisor status by itself is insufficient

to support liability). In the absence of specific allegations against one or more named

defendants, Mr. Brewer cannot maintain a claim with respect to the conditions at

OSP. See Bennett, 545 F.2d at 1262–63 (“Personal participation is an essential

allegation in a § 1983 claim.”).

To the extent Mr. Brewer has made allegations against the named defendants,

we agree with the district court that the specific allegations of misconduct against

Defendants Crenshaw, Sherwood, Taylor, and Lightle do not establish actionable due

process or Eighth Amendment violations. For example, placing Mr. Brewer on a

temporary sack lunch restriction does not implicate due process, see, e.g., Rogers v.

Holt, 49 F. App’x 231, 232 (10th Cir. 2002) (holding that there was no arguable due

process claim where the prisoner alleged the denial of recreation and substitution of

sack lunches for a period of five days), nor does the discretionary decision to transfer

him to a high-max cell, see, e.g., Meachum v. Fano, 427 U.S. 215 (1976) (ruling that

changes in prison security classifications do not implicate the Fourteenth Amendment

and, therefore, transfer to another, more restrictive prison does not violate due

process) and Twyman v. Crisp, 584 F.2d 352, 356–57 (10th Cir. 1978) (concluding

16
that discretionary intra state prison transfers and change of security status do not give

rise to due process rights).

Likewise, the allegation that Defendant Parker falsified Mr. Brewer’s prison

record in order to conceal a refusal to follow OSP policy regarding yard time and

showers, even if taken as true, is too vague to establish an actionable constitutional

claim. Indeed, Mr. Brewer’s complaint fails to provide any factual detail regarding

this claim. Without such information, it is impossible to tell whether the alleged

restrictions on yard time and showers implicate the Due Process Clause. Compare

Perkins, 165 F.3d at 810 (recognizing that the total denial of exercise for an extended

period of time could constitute cruel and unusual punishment), with Marshall v.

Morton, 421 F. App’x 832, 838 (10th Cir. 2011) (holding that “restrictions on an

inmate’s telephone use, property possession, visitation and recreation privileges are

not different in such degree and duration as compared with the ordinary incidents of

prison life to constitute protected liberty interests under the Due Process Clause”).

For these reasons, Mr. Brewer has failed to sufficiently allege that Defendants

Crenshaw, Jones, Knight, Parker, Sherwood, Taylor, or Lightle violated his

constitutional rights, and the district court correctly dismissed his due process and

Eighth Amendment claims against these named defendants.

2. Disposition of Grievances

Throughout this period at OSP, Mr. Brewer alleges he submitted a number of

grievances to the prison administration. During March 2012, when he alleges Mr. and

Ms. Spears were withholding his food and Lieutenants Glover and Jowels were

17
throwing his food onto his cell floor, Mr. Brewer claims he filed three grievances and

a “Request to Staff” with the prison administration. Mr. Brewer asserts he sent two

grievances to Warden Randall Workman and one to Director’s Designee Debbie

Morton. He claims he did not receive responses to these grievances and that he was

moved to a high max cell a year after making these complaints.18

Because he felt prison officials were inadequately addressing his complaints,

Mr. Brewer wrote directly to Deputy Director D.B. Parker. Mr. Brewer credits

writing to Deputy Director Parker with improving the situation because he was then

granted yard and exercise time, allowed showers three times a week, and provided

three meals every day. Mr. Brewer nevertheless filed further grievances with the

Director’s Designee Mark Knutson, one labeled an “emergency” grievance relating to

the allegedly broken water faucet in his high max cell and two others labeled

alternatively “emergency” and “sensitive” relating to racial discrimination he claimed

he was experiencing at that time. Mr. Brewer claims Mr. Knutson responded that his

broken water faucet was not an “emergency” and that Mr. Knutson “refused to

address the racism issues.”

The district court outlined the requirements of the mandatory grievance

process in use by the ODOC at the relevant time. See Brewer, 2015 U.S. Dist. LEXIS

18
Neither Randall Workman nor Debbie Morton is named as a defendant in
this case.

18
33393, at *10-*11.19 In addressing Mr. Brewer’s claims about deficiencies in the

disposition of his grievances, the district court considered the Martinez reports it had

ordered defendants to prepare. See id. at *1.20 The uncontroverted Martinez report

relating to OSP (Dkt. No. 61) included a sworn affidavit of Director’s Designee Mark

Knutson (Dkt. No. 61, Ex. 15). In his affidavit, Mr. Knutson addresses each of the

grievances filed by Mr. Brewer and the disposition of each according to the ODOC

19
The district court described the process as follows:

According to DOC Policy OP-090124, “Inmate/Offender Grievance
Process,” an inmate first must attempt to resolve his complaint
informally. If that is unsuccessful, he may submit a Request to Staff
(RTS). If the complaint still is not resolved, he then may file a
grievance. If the grievance also does not resolve the issue, the inmate
may appeal to the Administrative Review Authority or the Chief
Medical Officer. The administrative process is exhausted only after all
of these steps have been taken. . . . .

Both DOC and CCA/DCF policies provide a specific remedy to an
inmate in the event of failure of staff to respond to a RTS. Pursuant to
DOC policy, if there has been no response within 30 calendar days of
submission, the inmate may file a grievance to the reviewing authority
with evidence of submitting the RTS to the proper staff member. The
grievance may assert only the issue of lack of response to the RTS.

Brewer, 2015 U.S. Dist. LEXIS 33393, at *10-*11. Moreover, the ODOC grievance
policies “permit a prisoner to circumvent the informal resolution processes and
submit a grievance without first talking to an appropriate official and submitting a
Request to Staff, provided that the grievance addresses a sensitive or emergency
matter. A prisoner must use a particular form and write the word ‘emergency’ at the
top of the form.” Smith v. Beck, 165 Fed. Appx. 681, 684 (10th Cir. 2006) (citation
omitted).
20
Although a “Martinez report may not be used to resolve disputed factual
issues,” in the Tenth Circuit, “an uncontroverted report may serve as the basis for a
dismissal” on a 12(b)(6) motion. Gallagher, 587 F.3d at 1068 n.7.

19
grievance procedures in effect at that time, including the reason that each grievance

was returned or denied.21

Mr. Brewer has no independent due process rights that arise out of OSP or

ODOC employees’ disposition of internal grievances. See, e.g., Gallagher, 587 F.3d

at 1069 (holding that allegations related to the denial of prisoner’s grievances were

insufficient to state a cognizable due process claim); Boyd v. Werholtz, 443 F. App’x

331, 332 (10th Cir. 2011) (holding that there is no independent constitutional right to

state prison administrative grievance procedures). And the uncontroverted Martinez

report relating to OSP reveals Mr. Brewer’s allegations of deficiencies in the

disposition of his grievances as specious. The district court therefore correctly

dismissed Mr. Brewer’s claims against Mr. Knutson.

3. Racial Discrimination at OSP

21
For example, Mr. Brewer’s “sensitive emergency grievance” of September
27, 2012 complaining of being placed on restriction was “unanswered due to the
issue not being of an emergency or sensitive nature,” and Mr. Brewer “was directed
to follow the standard grievance process.” Mr. Brewer’s May 30, 2013 “emergency
grievance” relating to the broken water faucet “went unanswered due to the issue not
being of an emergency nature,” and because Mr. Brewer had failed “to provide
information regarding any informal action taken to resolve the complaint.”
Mr. Brewer’s first grievance to Mr. Knutson about alleged racial discrimination,
dated September 17, 2013 and marked “sensitive,” was unacceptable under the
guidelines because it was not “of a sensitive nature,” and Mr. Brewer “was directed
to follow the standard grievance process.” Finally, Mr. Brewer’s second grievance
alleging racial discrimination, dated August 23, 2014, suffered from the “procedural
error of raising multiple issues in one grievance,” and this was indicated to
Mr. Brewer on the response form. (See Dkt. No. 61, Ex. 15, Affidavit of Mark
Knutson dated June 11, 2014, at ¶¶ 7-11.)

20
 We also agree with the district court that Mr. Brewer has not sufficiently

alleged an equal protection violation. “Equal protection ‘is essentially a direction that

all persons similarly situated should be treated alike’.” Grace United Methodist

Church v. City of Cheyenne, 427 F.3d 775, 792 (10th Cir. 2005) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)), vacated on rehearing

on other grounds by 451 F.3d 643 (10th Cir. 2006). Thus, to establish an equal

protection violation, Mr. Brewer must allege facts that show the defendants treated

him differently than other similarly situated prisoners. Fogle v. Pierson, 435 F.3d

1252, 1261 (10th Cir. 2006).22

Considering Mr. Brewer’s complaint under this standard, we conclude it fails

to state a plausible equal protection claim against any named defendant.

Mr. Brewer’s generic allegations of racial discrimination at OSP—ungrounded in

specific factual averments that would show that he was treated differently from

similarly situated white prisoners—are insufficient to state a plausible equal

protection claim. Compare Abdulhaseeb v. Calbone, 600 F.3d 1301, 1322–23 (10th

Cir. 2010) (holding that plaintiff could not show an equal protection violation where

he made vague and conclusory allegations but failed to provide specific facts

22
Because Mr. Brewer asserts an equal protection claim based on race, it is
unnecessary for him to show that his treatment was not reasonably related to some
legitimate penological purpose. See Tennyson v. Carpenter, 558 F. App’x 813, 820
(10th Cir. 2014); cf. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994)
(concluding that because the prisoner failed to allege disparate treatment on the basis
of any suspect classification, he was required to show that the distinction between
himself and other inmates was not reasonably related to some legitimate penological
purpose).

21
showing that white inmates were treated more favorably), with Tennyson v.

Carpenter, 558 F. App’x 813, 820 (10th Cir. 2014) (concluding that an equal

protection claim was not frivolous where the defendant alleged that he was the only

African American in the choir and the only member disciplined for conduct common

to all choir members, thereby alleging a suspect classification based on race). For this

reason, the district court correctly rejected Mr. Brewer’s claims that defendants

Crenshaw, Jones, Knight, Knutson, Parker, Sherwood, Taylor, or Lightle

impermissibly discriminated against him on the basis of his race.

4. Civil Conspiracy Claim

We also reject Mr. Brewer’s contention that he sufficiently pled a civil

conspiracy claim. Although the district court was required to read Mr. Brewer’s

complaint liberally, it was under no obligation to craft Mr. Brewer’s claims for him.

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[Although] a pro se

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

than formal pleadings drafted by lawyers[,]” it is improper for “the district court to

assume the role of advocate for the pro se litigant.”). Mr. Brewer’s complaint cannot

be fairly read to assert a plausible civil conspiracy claim, even under the most

generous reading. Rather, this claim consists of a few conclusory assertions of

conspiracy, without providing any specific facts that would establish any named

defendants took concerted action to transfer Mr. Brewer to OSP to prevent him from

filing the instant lawsuit. We agree with the district court that this is insufficient to

raise a civil conspiracy claim. See Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504,

22
533 (10th Cir. 1998) (explaining that although allegations of conspiracy can form a

§ 1983 claim, “a plaintiff must allege specific facts showing an agreement and

concerted action amongst the defendants[;] [c]onclusory allegations of conspiracy are

insufficient” (internal quotation marks and citation omitted)).

C. Dismissal Without Permitting Amendment

Finally, we consider whether the district court properly dismissed

Mr. Brewer’s complaint without permitting him leave to amend. A “district court

should allow a plaintiff an opportunity to cure technical errors or otherwise amend

the complaint when doing so would yield a meritorious claim.” Curley v. Perry, 246

F.3d 1278, 1284 (10th Cir. 2001). But the district court need not permit an

opportunity to amend when “it is obvious that the plaintiff cannot prevail on the facts

he has alleged and it would be futile to give him an opportunity to amend.” Perkins v.

Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (internal quotation marks

omitted).

Here, the district court found Mr. Brewer’s complaint frivolous, dismissing it

without granting him leave to amend. Brewer v. Gilroy, No. CIV 13-471-RAW-SPS,

2015 U.S. Dist. LEXIS 33393, at *23 (E.D. Okla. Mar. 18, 2015). Mr. Brewer did not

provide necessary additional factual averments in his filings with the district court to

make out plausible claims that any named defendants violated his constitutional

rights. Specifically, Mr. Brewer’s three motions to amend failed to identify any

allegations that would have cured the deficiencies in his complaint. See, e.g., Curley,

246 F.3d at 1284 (affirming a district court’s sua sponte dismissal of a complaint for

23
failure to state a claim where the plaintiff failed to file a motion to reconsider

explaining why the dismissal was erroneous). The district court did not abuse its

discretion in dismissing Mr. Brewer’s complaint without granting him leave to amend

because Mr. Brewer’s proposed amendments would have been futile. See Anderson v.

Suiters, 499 F.3d 1228, 1238 (10th Cir 2007) (“A proposed amendment is futile if the

complaint, as amended, would be subject to dismissal.” (internal quotation marks

omitted)).

III. CONCLUSION

We therefore AFFIRM the district court’s dismissal of Mr. Brewer’s complaint

and its assessment of one strike against Mr. Brewer.23 The district court permitted

Mr. Brewer leave to proceed in forma pauperis on appeal, but we remind him of his

obligation to continue making partial payments until the entire fee has been paid.

ENTERED FOR THE COURT

Carolyn B. McHugh
Circuit Judge

23
We affirm the strike assessed against Mr. Brewer because he did not
challenge it on appeal. But because we agree with the district court that Mr. Brewer’s
appeal is not frivolous, we do not impose a second strike. See Jennings v. Natrona
Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999).

24