FILED
United States Court of Appeals
Tenth Circuit
August 1, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOE JERRY HARRISON,
Plaintiff-Appellant, No. 12-7025
v. (E.D. of Okla.)
DEBBIE MORTON, ROBERT KING, (D.C. No. CV-11-00043-RAW-SPS)
ROBERT EZELL, and SERGEANT
WILSON,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Joe Jerry Harrison, an Oklahoma state prisoner proceeding pro se,
challenges an order of the district court dismissing Harrison’s complaint brought
pursuant to 42 U.S.C. § 1983. Harrison was convicted of a prison disciplinary
*
This order and judgment is not binding precedent except under the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.
violation in a proceeding which he claims violated the Due Process Clause of the
Fourteenth Amendment.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the
dismissal of Harrison’s claims.
I. Background
Harrison is an inmate in custody of the Oklahoma Department of
Corrections (ODOC) at the Davis Correctional Facility (DCF). Harrison is
serving an 85% sentence, which means that under Oklahoma law, he is ineligible
for parole and cannot earn good time credits until he has served 85% of his
sentence. 1 On May 15, 2010, ODOC Unit Manager Robert King conducted a
shakedown of Harrison’s cell and found a sharpened ten-inch piece of wood
hidden in a light fixture. 2 Harrison was not allowed to observe the search.
Harrison was charged with Possession/Manufacture of Contraband, a Class
X misconduct offense. On May 21, 2010, Harrison was given an offense report, a
staff statement, and a photocopy of a picture of the sharpened stick.
On May 24, 2010, Harrison appeared at a disciplinary hearing conducted by
Sergeant Wilson, the DCF Disciplinary Hearing Officer. Harrison and Sgt.
1
Okla. Stat. tit. 21, § 13.1. Harrison will have served 85% of his sentence
and become eligible for earned credits in 2018.
2
Harrison claimed he did not know the object was in the light fixture and
did not place it there. He also argued that when he was transferred to the cell, he
requested to have it searched but was denied.
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Wilson were the only individuals at the hearing. Harrison complains that the
actual evidence was not present at the hearing, only a poor-quality photograph.
He also claims he was not allowed to confront his accuser or call witnesses on his
behalf. But the Investigator’s Report, which Harrison signed, indicated he did not
want to present witnesses. In addition, an ODOC special report writer reviewed
the audio recording of the hearing and stated in an affidavit that Harrison did not
ask to confront his accuser or request the presence of any live witnesses at the
hearing, nor did he seek to introduce any documentary evidence. Harrison was
found guilty and penalized with the loss of 365 earned credits, 90 days on Level
1, 30 days in segregation, and mandatory security points. Harrison did not
actually lose any earned credits because, as discussed previously, he is currently
ineligible to earn good time credits until 2018.
Harrison administratively appealed his disciplinary conviction, arguing he
was denied due process at his disciplinary hearing. DCF Warden Robert Ezell
reviewed and affirmed Harrison’s conviction, finding Harrison received due
process. He provided Harrison with a memo responding to his claims. Harrison
then appealed his conviction to the ODOC’s Administrative Review Authority
(ARA). The ARA declined to review Harrison’s appeal, stating that because
Harrison did not lose any earned credits as a result of his disciplinary conviction,
it was unable to undertake a due process review of his conviction.
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Harrison then filed suit in federal court under § 1983, seeking damages and
declaratory and injunctive relief for the alleged denial of his rights to due process
and equal protection. Defendant Debbie Morton of the ARA filed a motion for
summary judgment, and the other defendants filed a motion to dismiss Harrison’s
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. The district court granted both motions. This appeal followed. 3
II. Discussion
We review de novo the district court’s ruling on a motion to dismiss for
failure to state a claim. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th
Cir. 2007). “We must accept all the well-pleaded allegations of the complaint as
true and must construe them in the light most favorable to the plaintiff.” Id.
(quoting David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.
1996)). But we also must consider whether the allegations in the complaint are
plausible. Id.
Because Harrison is proceeding pro se, we will construe his pleadings
liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But Harrison
still has the duty to allege sufficient facts to serve as the basis for his claims. Id.
3
Before considering the merits of Harrison’s claims on appeal, we note
that in response to the two briefs filed separately by Morton and the other
defendants, Harrison filed two reply briefs. After being informed of Federal Rule
of Appellate Procedure 28(c)’s rule limiting an appellant to a single reply brief,
Harrison filed a motion asking us to consider both briefs. Although we note
Harrison repeats many of his arguments in both briefs, we grant his motion.
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In the absence of sufficiently specific allegations, it is not the court’s duty to
assume the role of advocate for the pro se litigant. Id.
A. Timeliness of Harrison’s § 1983 Claims
Harrison’s first claim is that the district court misapplied the law by
holding his § 1983 claims were premature under the Heck doctrine. Heck v.
Humphrey, 512 U.S. 477, 487 (1994). Heck held that a prisoner’s claim for
damages is not cognizable under § 1983 if a judgment in the plaintiff’s favor
would imply the invalidity of his conviction or sentence. Id. A prisoner can
evade this prohibition only by showing his conviction or sentence has been
overturned or otherwise invalidated. Id. This rule is also applicable to prison
disciplinary convictions. Edwards v. Balisok, 520 U.S. 641, 643 (1997). As
Harrison did not show his prison disciplinary conviction had been invalidated, the
district court found his § 1983 claims were barred by Heck.
Harrison argues the district court’s decision ignores Muhammad v. Close,
540 U.S. 749 (2004) (per curiam). Muhammad addressed the applicability of
Heck and Edwards to a § 1983 suit challenging a prisoner’s segregation prior to a
disciplinary hearing where he was acquitted of the charged offense and thus lost
no earned credits. Id. at 751. Muhammad held Heck does not bar a prisoner’s
§ 1983 suit when a favorable verdict would not affect his conviction or the
duration of his sentence. Id. at 751–52.
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In reaching this holding, the Court clarified “that the incarceration that
matters under Heck is the incarceration ordered by the original judgment of
conviction, not special disciplinary confinement for infraction of prison rules.”
Id. at 751 n.1. Because the petitioner in Muhammad lost no good-time credits as
a result of the challenged action, his § 1983 suit “could not therefore be construed
as seeking a judgment at odds with his conviction or . . . time to be served in
accordance with the underlying sentence.” Id. at 754–55. Stating its holding
another way, the Court found that because the petitioner raised no claim on which
habeas relief could have been granted, “Heck’s favorable termination requirement
was inapplicable.” Id. at 755.
Harrison claims Heck does not bar his claims in light of Muhammad, but he
misinterprets that decision. Muhammad held Heck is inapplicable only when a
prisoner’s § 1983 suit does not threaten his “conviction or the duration of his
sentence.” Id. at 751 (emphasis added). In Butler v. Compton, 482 F.3d 1277,
1280 (10th Cir. 2007), we held the conviction that matters under Muhammad and
Heck is the conviction tied “to the conduct alleged in the § 1983 action.” The
conduct Harrison challenges relates to his disciplinary conviction, not his original
criminal conviction. Harrison is correct that his § 1983 suit does not threaten the
duration of his underlying sentence, but it does threaten the validity of his
disciplinary conviction. Thus it would appear Muhammad does not bar the
application of Heck to Harrison’s § 1983 claims.
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But there is another wrinkle. Muhammad left open the possibility that Heck
might not apply when a habeas remedy is unavailable. 540 U.S. at 752 n.2.
Harrison likely would not be able to file a habeas petition challenging his
disciplinary conviction. We have held that a habeas petition under 28 U.S.C.
§ 2241 is available to challenge prison disciplinary proceedings only when those
proceedings affect “the fact or duration of the petitioner’s custody,” such as when
a prisoner is deprived of earned credits. McIntosh v. U.S. Parole Comm’n, 115
F.3d 809, 811–12 (10th Cir. 1997).
Harrison’s conviction, because it has no bearing on the fact or duration of
his confinement, does not qualify. But we need not decide whether Heck would
bar Harrison’s § 1983 claims in the absence of a habeas remedy because even if
his claims are allowed to proceed, Harrison cannot demonstrate that his
constitutional rights were violated.
B. Due Process
Harrison claims the defendants violated his due process rights during his
disciplinary proceedings. We agree with the district court that Harrison failed to
establish his proceedings implicated a protected liberty interest. Thus we
conclude the district court properly dismissed his due process claim.
“The Fourteenth Amendment prohibits states from depriving citizens of
liberty without due process of law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th
Cir. 2005). This guarantee applies to prison inmates, but “[p]rison disciplinary
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proceedings are not part of a criminal prosecution, and the full panoply of rights
due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418
U.S. 539, 556 (1974). The Supreme Court has established that protected liberty
interests are at issue in the prison setting only when an inmate is subjected to (1)
conditions that “impose[] atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life” or (2) disciplinary actions that
“inevitably affect the duration of his sentence.” Sandin v. Conner, 515 U.S. 472,
484, 487 (1995).
If a protected liberty interest is implicated, the following procedures must
be provided in a prison disciplinary hearing:
(1) advance written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the factfinder
of the evidence relied on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The results
of the disciplinary hearing must also be supported by “some evidence in the
record.” Id. at 454. Harrison’s disciplinary hearing did not implicate a protected
liberty interest, so he was not entitled to procedural due process. 4
4
Even if Harrison was entitled to procedural due process, he received all
the process due under Hill. 472 U.S. at 454. He was given a written notice of the
disciplinary charges three days before his hearing, was given the opportunity to
present evidence and call witnesses but declined to do so, and was given a written
statement of the evidence relied on and the reasons for his conviction. Id. His
conviction was also supported by some evidence, including Unit Manager King’s
(continued...)
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Harrison acknowledges his disciplinary conviction did not deprive him of
earned credits and thus did not affect the duration of his sentence. But he argues
it imposed atypical and significant hardships on him because it negatively
impacted his security classification, resulting in a reduction in his monthly pay
and a loss of many privileges. He also claims it will negatively affect his parole
consideration. Harrison further argues that ODOC policies and Oklahoma law
created an additional liberty interest by establishing a statutory right to
administratively appeal disciplinary convictions. See Okla. Stat. tit. 57, §
566.3(G); OP-060125.
This court recently considered and rejected the same arguments Harrison
raises regarding his security classification and eligibility for parole. See Marshall
v. Morton, 421 F. App’x 832, 837–38 (10th Cir. 2011). In Marshall, we
concluded a reduction in an inmate’s security classification did not implicate a
liberty interest for inmates serving an 85% sentence even though it reduces the
rate at which inmates earn good-time credits because 85%-rule inmates are
ineligible to receive earned credits. Id. at 838. In addition, we concluded the
other privileges lost with a reduced security classification, such as reduced pay or
4
(...continued)
statement that he found a sharpened stick hidden in Harrison’s cell, as well as a
photo of the weapon. Id. at 455–56. Harrison claims Warden Ezell should not
have applied the “some evidence” standard in his administrative appeal, but the
case he cites for this proposition is not binding in this circuit and, in any case,
applies only when a disciplinary conviction affects an inmate’s supervised release
date. See Carrillo v. Fabian, 701 N.W.2d 763, 777 (Minn. 2005).
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restrictions on recreational privileges, did not impose an atypical hardship
compared to the normal incidents of prison life. Id.; see also Penrod v. Zavaras,
94 F.3d 1399, 1407 (10th Cir. 1996) (holding an inmate has no protected liberty
interest in prison employment). And we held the possibility a disciplinary
conviction will negatively impact an inmate’s parole consideration to be “too
attenuated” and based on too many other considerations to constitute a protected
liberty interest. Marshall, 421 F. App’x at 838 (citing Sandin, 515 U.S. at 487).
We find Marshall’s reasoning persuasive and adopt it here.
Harrison also fails to establish that ODOC policy and Oklahoma law create
a liberty interest in his right to an administrative appeal. Prison disciplinary
procedures do not create constitutionally protected liberty interests. Crowder v.
True, 74 F.3d 812, 814–15 (7th Cir. 1996) (citing Sandin, 515 U.S. at 484). And
though states may sometimes create liberty interests protected by the due process
clause, these interests are “generally limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484.
Even assuming Okla. Stat. tit. 57, § 566.3(G) created a liberty interest in
“freedom from restraint which . . . imposes atypical and significant hardship,”
Sandin, 515 U.S. at 484, Harrison has failed to show that deviations from this law
and policies created pursuant to it imposed atypical or significant hardships on
him, or inevitably affected the duration of his sentence. He alleges the ARA’s
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refusal to review his appeal prevented him from exhausting his administrative
remedies and precluded him from pursuing his claims in court, but Harrison is not
required to have his appeal actually reviewed by the ARA to exhaust his
administrative remedies. All he has to do is request such review and “see the
process to its conclusion.” See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
Cir. 2002). It appears Harrison did so in this case, which is why the district court
did not reject his complaint on exhaustion grounds.
Harrison has not established that a protected liberty interest was implicated
in his disciplinary proceedings. Thus even if his § 1983 claim for damages
arising from the denial of due process is not barred by Heck, the district court’s
dismissal of it was proper.
C. Equal Protection
Harrison also argues that the ARA’s refusal to review his disciplinary
conviction due to his ineligibility to receive earned credits violated his Fourteenth
Amendment right to equal protection. He alleges ODOC treats inmates serving
85% sentences differently than other inmates. To prevail on an equal protection
claim, a plaintiff must show the government treated him differently than others
who were similarly situated. Penrod, 94 F.3d at 1406. If the difference in
treatment is not based on a suspect classification, the plaintiff must also allege
facts sufficient to establish “the distinction between himself and other inmates
was not reasonably related to some legitimate penological purpose.” Templeman
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v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). The district court observed that
inmates subject to the 85% rule have been convicted of particularly serious
crimes, and found Harrison failed to challenge the legitimate penological
justification for treating these inmates differently.
Harrison claims he challenged the penological purpose for treating 85%-
rule inmates differently in the context of a disciplinary hearing. But his only
arguments on this point are (1) that inmates who violate the same disciplinary
provision should be treated in the same manner, and (2) there is no valid
distinction between an inmate serving a 40-year sentence who is subject to the
85% rule and an inmate who is serving five consecutive twenty-year sentences
and is not subject to the 85% rule. But there is a valid distinction between these
inmates, and it was articulated by the district court: inmates subject to the 85%
rule have been convicted of particularly serious crimes. See Okla. Stat. tit. 21,
§ 13.1 (subjecting persons convicted of murder, first-degree rape, aggravated
child molestation, and so on to the 85% rule). Harrison simply points out that
these inmates are treated differently; his arguments do not challenge the reasons
underlying this disparate treatment, except to say they are not valid. As we held
when considering similar claims in Marshall, this is inadequate to state an equal
protection claim. 421 F. App’x at 839.
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D. Declaratory and Injunctive Relief
In addition to his § 1983 claims, Harrison sought declaratory and injunctive
relief on the grounds his due process and equal protection rights were violated by
the ARA’s refusal to review his appeal. The district court found Harrison was not
entitled to an injunction unless he could demonstrate that his constitutional rights
were actually violated. Rizzo v. Goode, 423 U.S. 362, 377 (1976). The district
court found Harrison failed to state a claim that either his due process or equal
protection rights were violated, so the court found he was not entitled to an
injunction. As we also conclude Harrison failed to state a claim that either his
due process or equal protection rights were violated, we affirm the district court’s
denial of injunctive and declaratory relief.
III. Conclusion
For the foregoing reasons, we AFFIRM the order of the district court
dismissing Harrison’s petition. We DENY Harrison’s motion seeking an
exception. In addition, we remind Mr. Harrison that he must continue making
partial payments until the entire balance of his appellate filing fee is paid.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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