Burnett v. Jones

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 31, 2011

TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

STEPHEN CRAIG BURNETT,

Plaintiff - Appellant,
No. 10-6285
v. (D.C. No. 10-CV-00257-M)
(W.D. Okla.)
JUSTIN JONES, Director DOC;
DEBBIE MORTON, Administrative
Review Authority; JOSEPH TAYLOR,
Warden; JOHN MIDDLETON,
Assistant Warden; ROBIN ROOF,
Health Services Administrator;
KATHY JONES, Grievance
Officer/Warden’s Secretary; LINDA
JESTER, Mail Clerk; SEBENICK,
Internal Affairs Officer; T. BATTLES,
Counselor; RAY CHOATE, Unit
Manager,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY, HARTZ, and HOLMES, Circuit Judges. **

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
 Plaintiff-Appellant Stephen Burnett, a state prisoner proceeding pro se,

appeals the district court’s adoption of the magistrate judge’s recommendation to

dismiss or grant summary judgment to Defendants-Appellees on his 13-count civil

rights complaint. There are two sets of Defendants: employees of the Cimarron

Correctional Facility (“CCF”) and employees of the Oklahoma Department of

Corrections (“ODOC”) (Mr. Jones is the director of the ODOC, and Ms. Morton

is his designee). The magistrate judge recommended that all claims against CCF

Defendants be dismissed for failure to exhaust administrative remedies, and that

all claims against the ODOC Defendants either be dismissed or that summary

judgment be granted to ODOC Defendants. The district court adopted the

magistrate judge’s recommendations in full.

Our jurisdiction arises under 28 U.S.C. § 1291. After reviewing the record,

we affirm with instructions to the district court to clarify its judgment to reflect

that certain claims against the CCF Defendants are dismissed without prejudice

for failure to exhaust. 1

Background

1
The CCF Defendants are entitled to judgment on the following claims
where we have rejected the district court’s exhaustion analysis and proceeded to
the merits: Count 1 based upon grievance 09-163 and 09-216; count 2 based upon
grievance 09-152; count 4 based upon appeal number 10-724; count 5 based upon
grievance 10-23 and appeal number 10-1724; counts 6, 7, 8, 9, and 13.

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 In May 2007 Mr. Burnett filed a second amended, 13-count complaint

under 42 U.S.C. § 1983, alleging numerous constitutional violations. 2 R., pt. 2,

p. 183. The complaint sought compensatory and punitive damages as well as

declaratory and injunctive relief. Id. at 209. After the magistrate judge requested

a Martinez report, see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (en banc)

(per curiam), 2 R., pt. 2, p. 300, the CCF Defendants moved to dismiss all 13

counts, arguing that Mr. Burnett failed to exhaust his administrative remedies as

required by the Prison Litigation Reform Act of 1996 (“PLRA”). 4 R., pt. 2, p.

228. The ODOC Defendants moved to dismiss all official-capacity claims for

monetary relief based on sovereign immunity and counts 1-8 for failure to allege

personal participation. 6 R., pt. 1, p. 15, 20. The ODOC Defendants also moved

for summary judgment on counts 9, 10, and 13 (Mr. Jones was the only ODOC

Defendant named in counts 9 and 10; both Ms. Morton and Mr. Jones were named

in count 13). Id. at 16-19.

After reviewing the record, the magistrate judge recommended that the

district court (1) grant CCF Defendants’ motion to dismiss all claims for failure to

exhaust, (2) grant the ODOC Defendants’ motion to dismiss all official-capacity

claims for monetary relief based on sovereign immunity, (3) grant the ODOC

Defendants’ motion to dismiss counts 1-8 for failure to allege personal

participation, (4) grant the ODOC Defendants’ motion for summary judgment on

counts 9, 10, and 13, and (5) dismiss counts 11 and 12 as to all Defendants, and

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count 1 as to Defendant Jester, as frivolous or for failure to state a claim under

the PLRA. 6 R., pt. 2, p. 295-96. The magistrate judge further recommended that

Mr. Burnett’s cross-motions for summary judgment be denied and all other

outstanding motions be denied as moot. Id.

Mr. Burnett filed an objection, id. at 302, but the district court adopted the

report and recommendation in its entirety without discussion or analysis, id. at

344.

On appeal, Mr. Burnett argues that (1) he exhausted administrative

remedies, and (2) to the extent he failed to properly exhaust, he should be excused

because the failure was caused by the action or inaction of prison officials. See

Aplt. Br. 2, 4, 29. Specifically, Mr. Burnett argues that Ms. Morton improperly

rejected his grievance appeals on unauthorized grounds, just as had occurred in

Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010). See id. at 29. We agree

that, for several of Mr. Burnett’s grievances, the actions of prison officials

rendered exhaustion unavailable, thus excusing proper exhaustion. However, our

review of the record reveals that Mr. Burnett failed to state a claim upon which

relief could be granted, see Fed. R. Civ. P. 12(b)(6), so dismissal of the complaint

against the CCF Defendants was warranted.

We also affirm the dismissal of counts 1-8 against the ODOC Defendants

for failure to allege personal participation, dismissal of the official-capacity

claims for monetary damages against the ODOC Defendants, the grant of

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summary judgment to the ODOC Defendants on counts 9, 10, and 13, and

dismissal of count 12 for failure to state a claim.

Discussion

A. Dismissal of Counts 1-13 Against CCF Defendants.

We review de novo the district court’s conclusion that a prisoner failed to

exhaust administrative remedies. Little, 607 F.3d at 1249. “Under the Prisoner

Litigation Reform Act . . . a prisoner must exhaust his administrative remedies

prior to filing a lawsuit regarding prison conditions in federal court.” Id. at 1249

(citations omitted). A prison or prison system’s regulations define the steps a

prisoner must take to properly exhaust administrative remedies. Id. Failure to

follow these regulations may result in failure to exhaust. See Woodford v. Ngo,

548 U.S. 81, 93-95 (2006).

However, a prisoner must exhaust only those remedies that are “available.”

See Little, 607 F.3d at 1250. “Where prison officials prevent, thwart, or hinder a

prisoner’s efforts to avail himself of an administrative remedy, they render that

remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.”

Id. (citation omitted). A prison official improperly thwarts a prisoner’s attempt to

exhaust when she rejects a prisoner’s grievance appeal on grounds not permitted

by the relevant regulations. Id. at 1249-50. In other words, both prisoners and

prison officials must abide by the prison’s regulations—improper rejection of a

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grievance appeal excuses the prisoner’s failure to properly exhaust.

In this case, all parties agree that the grievance process at CCF is governed

by Oklahoma regulations and CCF’s contract with the ODOC. ODOC Policy OP-

090124 governs the grievance process. See 4 R., pt. 2, p. 194. CCF Policy 14-5

constitutes the facility-specific grievance policy. 2 See 4 R., pt. 2, p. 214.

OP-090124 establishes a four-step process. See 4 R., pt. 2, p. 198-205; see

also Little, 607 F.3d at 1249 (describing the grievance process). First, a prisoner

must attempt to resolve the complaint informally. 4 R., pt. 2, p. 198. If not

resolved, the prisoner must submit a Request to Staff (“RTS”). Id. at 198-99. If

the issue is still not resolved, the prisoner must submit a formal grievance. Id. at

199-200. After receiving a response to his formal grievance, the prisoner must

appeal to the administrative review authority or chief medical officer. Id. at 202-

03. Only upon proper completion of all four steps has the prisoner exhausted

administrative remedies. See id. at 205; see also Little, 607 F.3d at 1249. In this

case, the administrative review authority is Debbie Morton, an ODOC Defendant.

Twenty incidents form the foundation of Mr. Burnett’s thirteen counts. The

magistrate judge concluded that Mr. Burnett failed to exhaust administrative

remedies for all 20 incidents. See 6 R., pt. 2, p. 259-84. After reviewing the

record, we disagree—Mr. Burnett failed to exhaust administrative remedies for 10

2
For purposes of this case, the ODOC and facility-specific procedure are
the same.

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incidents, but Ms. Morton improperly rejected Mr. Burnett’s attempts to exhaust

the remaining 10 incidents.

1. Unexhausted Claims.

The record reveals that Mr. Burnett did not exhaust administrative remedies

pertaining to 10 incidents. Mr. Burnett did not submit a grievance regarding the

incidents underlying count 11 and one incident underlying count 4. 3 CCF

Defendants argue that Mr. Burnett did not appeal the denial of initial grievance

numbers 09-126, 09-157, 09-158, 09-199, 09-203, and 09-170, as is required to

properly exhaust administrative remedies. Aplee. Br. 11, 14, 17; see 4 R., pt. 2,

3
The following is a list of grievances, the count it relates to, and its
location in the appellate record.

1. 09-126 (count 1): 3 R., pt. 1, p. 55-63.
2. 09-163 (count 1): 3 R. pt. 1, 124-64.
3. 09-157 (count 1): 3 R., pt. 1, p. 112-16.
4. 09-158 (count 1): 3 R., pt. 1, p. 117-21.
5. 09-216 (count 1): 3 R., pt. 2, p. 220-33.
6. 09-152 (count 2): 3 R., pt. 1, p. 90-98.
7. 09-153 (count 2): 3 R., pt. 1, p. 99-110.
8. 09-199 (count 2): 3 R., pt. 2, p. 189-97.
9. 09-203 (count 3): 3 R., pt. 2, p. 198-205.
10. No grievance (count 4): 2 R., pt. 2, p. 190.
11. Appeal number 10-1724 (counts 4, 5): 2 R., pt. 2, p. 275-76.
12. 10-23 (count 5): 4 R., pt. 1, p. 23-37; 2 R., pt. 2, p 245.
13. No number (count 5): 2 R., pt. 2, p. 285-96.
14. 09-225 (count 6): 3 R., pt. 2, p. 252-64.
15. 10-35 (count 7): 4 R., pt. 1, p. 38-57.
16. 10-38 (counts 8, 9): 4 R., pt. 1, p. 63-74.
17. 09-170 (count 10): 3 R., pt. 2, p. 184-88.
18. 09-220 (count 10): 3 R., pt. 2, p. 234-47.
19. No grievance (count 11): 2 R., pt. 2., p. 201.
20. 09-168 (count 13): 3 R., pt. 2, p. 166-78.

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p. 203-05. After reviewing the record, we agree. In addition, grievance number

09-153 was untimely. Mr. Burnett’s failure to file a timely RTS or appeal the

reviewing authority’s response under policy OP-090124 compels the conclusion

that he failed to exhaust his administrative remedies with respect to these

incidents. See Woodford, 548 U.S. at 93-95.

Our review of the record reveals that Mr. Burnett also did not exhaust

grievance number 09-220. Warden Taylor, the reviewing authority, rejected the

initial grievance for failure to comply with the grievance-restriction procedures

contained in OP-090124. See 4 R., pt. 2, p. 195; 3 R., pt. 2, p. 238. Mr. Burnett

appealed, and Ms. Morton, the administrative review authority, rejected the

appeal on the same grounds. See 4 R., pt. 2, p. 195; 3 R., pt. 2., p. 235. The

Supreme Court has held that prisoners must adhere to the relevant prison policies

in order to exhaust administrative remedies. Woodford, 548 U.S. at 93.

Grievance number 09-220 was not notarized, as is required by OP-090124. See 3

R., pt. 2, p. 238; 4 R., pt. 2. p. 207. Accordingly, Mr. Burnett failed to properly

exhaust grievance number 09-220.

As we explain below, administrative remedies may be rendered

unavailable—and consequently proper exhaustion may be excused—if, after a

prisoner receives a response on the merits from the reviewing authority, the

administrative review authority rejects a grievance appeal for failure to adhere to

procedural requirements at the initial stage. See infra p. 10-12. This did not

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occur with grievance number 09-220. Mr. Burnett did not receive a response on

the merits on his initial grievance. See 3 R., pt. 2, p. 238. Thus, on appeal Ms.

Morton could only consider the reviewing authority’s treatment of the procedural

issue. Ms. Morton did not exceed her authority in rejecting the grievance appeal

on the same procedural grounds as the reviewing authority—she merely

confirmed the reviewing authority’s determination that Mr. Burnett did not

comply with the relevant procedures.

Mr. Burnett argues that his failure to exhaust is due to the manipulation,

action or inaction of prison officials and exhaustion should be excused. See Aplt.

Br. 29. However, the record shows that failure to exhaust the above-listed

grievances resulted from Mr. Burnett’s own failure to submit a grievance in

compliance with OP-090124. Mr. Burnett also argues that grieving the incidents

underlying count 11 would have been futile. See 6 R., pt. 2, p. 282. But there is

no futility exception to the PLRA’s exhaustion requirement—exhaustion is

required even when the administrative process does not afford the type of relief

sought by the prisoner. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).

Accordingly, we affirm the district court’s adoption of the magistrate judge’s

recommendation that counts 3, 10, and 11 be dismissed for failure to exhaust.

In considering Mr. Burnett’s remaining counts, we will consider only the

factual incidents for which exhaustion is excused.

2. Claims for Which Exhaustion is Excused.

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 The remaining 10 incidents must be treated differently. Mr. Burnett filed

an initial grievance for each of these incidents, and received a response on the

merits by the reviewing authority. However, Ms. Morton rejected each of the

grievance appeals for failure to abide by procedures required at the initial stage. 4

As we explain below, under OP-090124 Ms. Morton did not have the authority to

do so.

Nine of Mr. Burnett’s grievance appeals—numbers 09-152, 09-163, 09-216,

10-23, count 5 (no number), 09-225, 10-35, 10-38, and appeal number 10-

1724—were denied for failure to include proper documentation. At the time the

initial grievances were submitted, Mr. Burnett was on grievance restriction.

Pursuant to OP-090124, he was required to attach to each grievance (1) a duly-

verified affidavit, and (2) a list of grievances submitted within the last 12 months.

See 4 R., pt. 2, p. 207. OP-090124 provides that the “reviewing authority will

determine whether the offender has complied with the [grievance-restriction]

requirements for being permitted to submit a grievance.” Id. The “reviewing

authority” is the facility head or health services administrator “to whom the

grievance is first submitted.” Id. at 195 (emphasis added). Ms. Morton is the

4
One of the grievance appeals, number 10-23, was rejected by Genese
McCoy, the Chief Medical Officer. See 2 R., pt. 2, p. 245. OP-090124 requires
an appeal to either the Director of the ODOC’s designee, in this case Ms. Morton,
or the chief medical officer, in this case Ms. McCoy. See 4 R., pt. 2, p. 203-04.
The requirements for appeal to either are the same. Accordingly, our treatment of
the grievance appeal denied by Ms. McCoy is the same as those denied by Ms.
Morton.

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“administrative review authority,” the ODOC Director’s designee “to whom the

formal grievance is submitted for final appeal.” Id. (emphasis added).

OP-090124 imposes no additional requirements for grievance appeals

submitted by prisoners on grievance restriction. See id. at 203-04. There is no

provision authorizing the administrative review authority to reject a grievance

appeal for failure to comply with grievance-restriction procedures when the

prisoner has received a response on the merits from the reviewing authority.

See id.; cf. Little, 607 F.3d at 1250 (noting that OP-090124 does not grant the

administrative review authority the ability to reject a grievance appeal for

including more than one issue). Indeed, the precise opposite is true: OP-090124

expressly states that the reviewing authority will ensure compliance with the

grievance-restriction procedures, implying that the administrative review

authority lacks that power. See 4 R., pt. 2, p. 207; cf. Little, 607 F.3d at 1250

(noting that the policy permitted the reviewing authority to reject a grievance with

more than one issue, implying that the administrative review officer did not have

that authority).

Accordingly, we conclude that under OP-090124 the administrative review

authority lacks the authority to reject a grievance appeal for failure to comply

with the grievance-restriction procedures when the reviewing authority responds

on the merits. Thus, Ms. Morton erred in rejecting Mr. Burnett’s grievance

appeals for grievances numbers 09-152, 09-163, 09-216, 10-23, count 5 (no

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number), 09-225, 10-35, 10-38, and appeal number 10-1724. Because Ms.

Morton’s actions in rejecting these appeals rendered proper exhaustion

unavailable, proper exhaustion for these incidents is excused. See Little, 607

F.3d at 1250.

Our decision in Little also compels the conclusion that Ms. Morton erred in

rejecting Mr. Burnett’s appeals concerning grievance number 09-168, which Ms.

Morton returned unanswered for failure to submit the RTS to the appropriate staff

member and for failure to include time-frames in the original grievance, even

though the reviewing authority responded to the grievance on the merits. See 3

R., pt. 2, p. 167; Little, 607 F.3d at 1250 (concluding that the administrative

review authority could not reject a grievance appeal for failure to comply with the

procedures for an initial grievance).

Several times in the report and recommendation the magistrate judge stated

that Mr. Burnett was informed he could resubmit the grievance appeal within 10

days, and that Mr. Burnett’s failure to do so constituted failure to exhaust. See,

e.g., 6 R., pt. 2, p. 265, 266, 268. But there is no provision in OP-090124 for

resubmitting a grievance appeal. See 4 R., pt. 2, p. 202-05. Thus, the magistrate

judge erred to the extent it based its ultimate conclusions on Mr. Burnett’s failure

to resubmit a grievance appeal. See Little, 607 F.3d at 1250.

However, our conclusions regarding exhaustion do not end the matter. We

may affirm the district court’s dismissal on any ground supported by the record.

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See GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 882 (10th Cir. 2005).

Accordingly, we will review the record to determine whether dismissal was

appropriate for those counts supported by grievances for which exhaustion is

excused.

To survive a motion to dismiss, “the complaint must allege sufficient facts

to make the claim plausible on its face.” Kerber v. Qwest Group Life Ins. Plan,

— F.3d —, 2011 WL 2151201, at *7 (10th Cir. 2011) (citation omitted).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009). Mr. Burnett’s complaint fails to state a claim on which relief may be

granted against the CCF Defendants.

1. Count 1.

In count 1, Mr. Burnett alleges that CCF Defendants Jester and Middleton

interfered with his constitutional rights to send and receive legal mail. 2 R., pt. 2,

p. 188. Two grievances for which exhaustion has been excused, 09-163 and 09-

216, form the basis to count 1. Id. Mr. Burnett alleges that (1) on one occasion

Mr. Burnett was not allowed access to the legal mail center, and (2) on one

occasion incoming legal mail was delayed for two-and-a-half days for no valid

reason. Id.

To state a claim for violation of the constitutional right to access the courts,

a prisoner “must demonstrate actual injury . . . —that is, that the prisoner was

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frustrated or impeded in his efforts to pursue a nonfrivolous legal claim

concerning his conviction or his conditions of confinement.” Gee v. Pacheco, 627

F.3d 1178, 1191 (10th Cir. 2010) (citing Lewis v. Casey, 518 U.S. 343, 351-55

(1996)). Mr. Burnett does not allege that the Defendants’ actions actually

hindered his ability to pursue a nonfrivolous legal claim. Accordingly, we affirm

the dismissal of count 1.

2. Count 2.

In count 2, Mr. Burnett alleges that CCF Defendants Taylor and Middleton

interfered with his right to litigate in court by denying him adequate time in the

law library. 2 R., pt. 2, p. 188. One grievance, 09-152, for which exhaustion is

excused forms the basis for this count. Id. However, again Mr. Burnett does not

allege that the Defendants’ actions hindered his ability to pursue a nonfrivolous

legal claim. See Gee, 627 F.3d at 1191. Accordingly, we affirm the dismissal of

count 2.

3. Count 4.

In count 4, Mr. Burnett alleged that he attempted to place a collect phone

call to his son, an attorney, but that the phone call had been blocked. 2 R., pt. 2,

p. 190. He alleges that this single occurrence infringed upon his free-speech

rights under the First Amendment. Id.

One grievance, appeal number 10-1724, for which exhaustion is excused

underlies this count. Id. In response to Mr. Burnett’s request to staff, Ms. Kathy

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Jones, a CCF Defendant, replied that in order to permit a collect phone call she

needed a letter on the attorney’s letterhead stating that he was Mr. Burnett’s

attorney of record. Id.

Mr. Burnett cites no cases for the proposition that restricting collect phone

calls in this manner violates the First Amendment, and our independent research

reveals none. Indeed, we have acknowledged that “‘a prisoner’s right to

telephone access is subject to rational limitations in the face of legitimate security

interests of the penal institution.’” Robinson v. Gunja, 92 F. App’x 624, 627

(10th Cir. 2004) (unpublished) (quoting Washington v. Reno, 35 F.3d 1093, 1100

(6th Cir. 1994)). Mr. Burnett does not allege or argue that the CCF’s telephone

policy is not rationally related to a legitimate penological interest or provide other

facts suggesting that the policy is invalid. Accordingly, dismissal of count 4 was

appropriate.

4. Count 5.

In count 5, Mr. Burnett alleges that prison officials subjected him to cruel

and unusual punishment and retaliation by failing to automatically renew his

prescription for Naproxen, an anti-inflammatory drug that was prescribed by the

facility medical provider. 2 R., pt. 2., p. 191. Two grievances for which

exhaustion is excused, 10-23 and appeal number 10-1724, underlie count 5. Id.

However, the complaint reveals that Mr. Burnett’s prescription was renewed after

he submitted a grievance, precluding a plausible claim of deliberate indifference.

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See 2 R., pt. 2, p. 191; see Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir.

2009) (“[T]he prisoner must show that the defendants knew he faced a substantial

risk of harm and disregarded that risk, by failing to take reasonable measures to

abate it.” (emphasis added) (internal quotation marks and citation omitted)).

Mr. Burnett also alleges that prison officials failed to renew his

prescription before it was anticipated to run out. 2 R., pt. 2, p. 191. However, he

does not allege that prison officials failed to take reasonable measures to remedy

the situation. See Martinez, 563 F.3d at 1089. Indeed, the complaint does not

reveal whether officials provided Mr. Burnett with medication before his supply

actually ran out. See 2 R., pt. 2, p. 191.

Regarding Mr. Burnett’s allegations of retaliation, he alleges no “‘specific

facts showing retaliation because of the exercise of the prisoner’s constitutional

rights.’” Gee, 627 F.3d at 1191 (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1

(10th Cir. 1990)). Accordingly, count 5 does not state a claim upon which relief

can be granted, and dismissal was appropriate.

5. Count 6.

In count 6, Mr. Burnett alleges that CCF Defendant Taylor denied him his

First Amendment right to practice his religion. 2 R., pt. 2, p. 192. Mr. Burnett

does not allege any statutory violations. He alleges that the facility was on

lockdown during Hanukkah and Christmas, and that he was denied the

opportunity to gather with other members of his faith to celebrate those religious

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holidays. Id. He further alleges that despite the lockdown, prisoners were able to

perform their normal jobs, suggesting that the facility’s stated security concerns

were pretextual. Id. Grievance number 09-225, for which exhaustion is excused,

underlies count 6. Id. In response to his grievance, prison officials said that Mr.

Burnett could practice his religion by worshiping in his cell. 3 R., pt. 2, p. 207.

“[I]n order to allege a constitutional violation based on a free exercise

claim, a prisoner-plaintiff must survive a two-step inquiry.” Kay v. Bemis, 500

F.3d 1214, 1218 (10th Cir. 2007). The prisoner “must first show that a prison

regulation substantially burdened sincerely-held religious beliefs.” Id. (internal

quotation marks and citation omitted). Then, the prison officials may advance a

legitimate penological interest to justify the regulation. Id. at 1218-19. After this

initial two-step, the court must apply the four-factor balancing test from Turner v.

Safley, 482 U.S. 78, 89-91 (1987). Id. at 1219.

Mr. Burnett does not allege that the failure to allow group gatherings

substantially burdened his religious practice. Contra Boles v. Neet, 486 F.3d

1177, 1182 (10th Cir. 2007) (plaintiff showed substantial burden by alleging that

“according to . . . Jewish Law, Jewish males are required to wear a head covering

at all times” (internal quotation marks and citation omitted)). Indeed, Mr.

Burnett’s allegations establish, at the most, a bare desire to hold group gatherings

to mark religious holidays. Devoid of allegations that his religious practice is

substantially burdened, count 6 does not state a claim upon which relief may be

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granted. See Kay, 500 F.3d at 1218.

6. Count 7.

In count 7, Mr. Burnett alleges that several CCF Defendants retaliated

against him by decreasing his security level from 4 to 1. 2 R., pt. 2, p. 193.

Grievance number 10-35, for which exhaustion is excused, forms the basis for

count 7. Id. According to Mr. Burnett, Defendants informed him that he was

demoted because he did not have a job. Id. Mr. Burnett alleges that there are

prison inmates who do not have jobs that are nonetheless classified as level 3 or

4. Id. However, Mr. Burnett does not allege any facts demonstrating causation

between protected activities and demotion, much less the required “‘specific facts

showing retaliation because of the exercise of the prisoner’s constitutional

rights.’” Gee, 627 F.3d at 1191 (quoting Frazier, 922 F.2d at 562 n.1).

Mr. Burnett also alleges that he was demoted from level 4 to level 1

without due process, in violation of the 14th Amendment. 2 R., pt. 2, p. 193.

However, Mr. Burnett acknowledges that because he is serving a life sentence he

does not receive good-time credits based on his level. Id. Thus, the downgrade

does not inevitably effect the duration of his sentence. See Sandin v. Connoer,

515 U.S. 472, 487 (1995). Further, the decreased privileges that flow from

demotion from level 4 to level 1 do not “present a dramatic departure from the

basic conditions” of Mr. Burnett’s confinement. Id. at 485. Accordingly, Mr.

Burnett was not deprived of a protected liberty interest, and count 7 fails to state

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a claim upon which relief can be granted.

7. Count 8.

In count 8, Mr. Burnett alleges that CCF Defendants Taylor and Choate

denied him his constitutional rights to freedom of speech, familial association,

privacy, and confidential communication with his attorney. 2 R., pt. 2, p. 194.

Mr. Burnett alleges that members of his family—including his son, who is a

licensed attorney—traveled long distances to visit him. He requested a “special

visit,” which permits contact between prisoners and visitors. His request was

denied by Defendants Taylor and Choate, and he was afforded a no-contact,

“behind-glass” visit, with communication only through a recorded telephone

system. Id. Mr. Burnett alleges that he was denied a contact visit out of

retaliation, and that his status as a level 1 inmate was pretext for retaliation. Id.

Grievance number 10-38, for which exhaustion has been excused, forms the basis

for count 8. Id.

Again, Mr. Burnett fails to allege “specific facts showing retaliation

because of the exercise of the prisoner’s constitutional rights.” Gee, 627 F.3d at

1191 (quoting Frazier, 922 F.2d at 562 n.1). Indeed, the visitation policy clearly

states that level 1 prisoners are limited to non-contact visits. See 4 R., pt. 2, p.

178. Thus, to the extent he alleges retaliation, he fails to state a claim on which

relief can be granted. See Gee, 627 F.3d at 1191. Further, Mr. Burnett does not

allege that the non-contact visit impeded his ability to pursue a nonfrivolous legal

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claim, as is required to state a claim for interference of the right to access the

courts. See Gee, 627 F.3d at 1191; Eckert v. Camp, 166 F.3d 347, 1998 WL

830551, at *4 (10th Cir. 1998) (unpublished table decision) (applying actual

injury standard to alleged denial of visitation with attorney). Finally, the

ODOC’s visitation regulation, in relevant part, is substantially the same as the

visitation policy upheld in Overton v. Bazzetta, 539 U.S. 126 (2003). Compare

Overton, 539 U.S. at 129-30 with 4 R., pt. 2, p. 176-88. Mr. Burnett alleges no

facts and makes no argument on which to distinguish Overton. Therefore, count 8

does not state a claim upon which relief can be granted and was correctly

dismissed.

8. Count 9.

In count 9, Mr. Burnett alleges that the CCF’s visitation policy violated the

14th Amendment. 2 R., pt. 2, p. 196. Grievance number 10-38, for which

exhaustion is excused, underlies count 9. Id.

As we note supra in the context of count 8, the ODOC’s visitation policy is

this case is substantially similar to that in Overton. Again, Mr. Burnett alleges no

facts and makes no arguments on which to distinguish Overton. Compare

Overton, 539 U.S. at 129-30 with 4 R., pt. 2, p. 176-88. Accordingly, dismissal

of count 9 was appropriate.

9. Count 13.

In count 13, Mr. Burnett alleges that CCF is under-staffed, leading to

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unsafe conditions that violate the Eighth Amendment. 2 R., pt. 2, p. 203.

Grievance number 09-168, for which exhaustion is excused, underlies count 13.

Id. Mr. Burnett alleges that, due to a shortage of staff, a gang fight broke out

among inmates, and that the dangerous conditions are ongoing. Id. However, Mr.

Burnett also alleges that prison officials placed the facility on lockdown after the

fight. See id. While he alleges that two other incidents took place as the facility

was coming off lockdown, he does not allege any facts supporting the conclusion

that Defendants’ decisions regarding staffing contributed to those incidents. See

id. Accordingly, Mr. Burnett has failed to demonstrate that prison officials did

not take reasonable steps to abate the risk as is required to show deliberate

indifference in violation of the Eighth Amendment, see Martinez, 563 F.3d at

1089, and dismissal of count 13 was appropriate.

Because Mr. Burnett has failed to state a claim on which relief may be

granted, we affirm the district court’s adoption of the magistrate judge’s

recommendation to dismiss counts 1, 2, 4, 5, 6, 7, 8, 9 and 13 against the CCF

Defendants. On remand, the district court shall clarify its judgment to reflect

which claims are dismissed without prejudice.

B. Dismissal of Official-Capacity Claims Against ODOC Defendants.

The magistrate judge recommended that official-capacity claims for

monetary damages be dismissed. 6 R., pt. 2, p. 284. The district court correctly

adopted this recommendation. Id. at 343-44; see Edelman v. Jordan, 415 U.S.

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651, 664-67 (1974) (sovereign immunity bars official-capacity suits for

retrospective relief). The district court was also correct in adopting the

magistrate judge’s recommendation that all claims against the ODOC be

dismissed. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988)

(sovereign immunity bars suits against the Colorado DOC).

C. Dismissal of Counts 1-8 Against ODOC Defendants.

The magistrate judge recommended that counts 1-8 against the ODOC

Defendants be dismissed for failure to allege personal participation. 6 R., pt. 2, p.

284-85. The district court adopted the recommendation. Id. at 343-44.

“‘Individual liability under § 1983 must be based on personal involvement

in the alleged constitutional violation.’” Gallagher v. Shelton, 587 F.3d 1063,

1069 (10th Cir. 2009) (quoting Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.

1997)). The complaint contains an initial paragraph alleging, in conclusory

fashion, that all Defendants personally participated in all the alleged

constitutional violations. See 2 R., pt. 2, p. 187. However, in the body of the

complaint Mr. Burnett alleges no facts suggesting that the ODOC Defendants

were personally involved in the deprivations alleged in counts 1-8. Accordingly,

dismissal of counts 1-8 against the ODOC Defendants was appropriate.

D. Summary Judgment to ODOC Defendants.

The magistrate judge recommended that the ODOC Defendants’ motion for

summary judgment on counts 9, 10, and 13 be granted. 6 R., pt. 2, p. 295-96.

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The district court adopted the recommendation in full. Id. at 344.

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We review the grant of summary judgment

de novo. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010).

1. Count 9.

In count 9, Mr. Burnett alleges that he was subjected to unequal treatment

and discriminatory enforcement of CCF’s visitation policy, and that the visitation

policy violated the 14th Amendment. 2 R., pt. 2, p. 196. The magistrate judge

recommended granting summary judgment to the ODOC Defendants, concluding

that the policy was a reasonable restriction on visitation under Overton v.

Bazzetta, 539 U.S. 126 (2003) and Wirsching v. Colorado, 360 F.3d 1191 (10th

Cir. 2004). 6 R., pt. 2, p. 288-90. The magistrate judge also concluded that Mr.

Burnett produced no evidence in support of his retaliation claim. Id. at 289-90.

After carefully reviewing the record, we agree. Mr. Burnett did not produce

evidence that raises a genuine dispute that the visitation policy does not bear a

rational relation to legitimate penological interest, Overton, 539 U.S. at 132, nor

did he produce any evidence that the policy was enforced in a discriminatory or

retaliatory manner.

2. Count 10.

The magistrate judge recommended that summary judgment on count 10 be

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granted for failure to allege personal participation by the ODOC Defendants. See

6 R., pt. 2, p. 290-91. However, as we hold supra, Mr. Burnett did not submit a

grievance for count 10, and exhaustion is not excused for the incidents underlying

that count. Accordingly, we affirm the grant of summary judgment to ODOC

Defendants on that ground.

3. Count 13.

In count 13, Mr. Burnett alleges that, due to a chronic shortage of staff,

CCF became so unsafe as to violate the Eighth Amendment’s ban on cruel and

unusual punishment. 2 R., pt. 2, p. 203-05. The magistrate judge recommended

that summary judgment be granted to Defendants on this count, concluding that

Mr. Burnett “provided no facts creating an inference that any prison official knew

of and disregarded a substantial risk of serious harm to Plaintiff’s safety.” 6 R.,

pt. 2, p. 292. We agree. Mr. Burnett’s allegations of a gang fight and subsequent

lockdown do not show that “prison official[s] w[ere] deliberately indifferent to

his safety,” Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006) (internal

quotation marks and citation omitted). Accordingly, summary judgment was

appropriate.

As we noted supra, Mr. Burnett did not submit a grievance regarding count

11. Accordingly, we affirm the dismissal of count 11 against the ODOC

Defendants.

In count 12, Mr. Burnett sought to invoke the district court’s supplemental

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jurisdiction to assert violations of state law. 2 R., pt. 2, p. 202. But Mr. Burnett

alleges no such state-law claims. Accordingly, count 12 was properly dismissed.

Given our disposition, we need not reach Mr. Burnett’s numerous

challenges to different orders of the district court. We deny Mr. Burnett’s motion

to proceed IFP. We deny all other outstanding motions as moot.

AFFIRMED with instructions to the district court to clarify its judgment to

reflect any claims against CCF Defendants dismissed without prejudice for failure

to exhaust.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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