FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 1, 2013
Elisabeth A. Shumaker
Clerk of Court
RICHARD GRISSOM,
Plaintiff-Appellant,
v. No. 12-3255
(D.C. No. 5:07-CV-03302-SAC)
ROGER WERHOLTZ, Secretary of (D. Kan.)
Corrections, in his official and individual
capacity; RAYMOND ROBERTS,
Warden, El Dorado Correctional Facility,
in his official and individual capacity;
LOUIS E. BRUCE, Former Warden,
Hutchinson Correctional Facility, in his
official and individual capacity;
SAM CLINE, Current Warden,
Hutchinson Correctional Facility, in his
official and individual capacity;
DAVID R. MCKUNE, Warden, Lansing
Correctional Facility, in his official and
individual capacity;
DUANE MUCKENTHALER,
Corrections Counselor/Unit Team
Manager, Lansing Correctional Facility,
in his official and individual capacity;
DEBRA MCCONAGHY, Corrections
Counselor II, Hutchinson Correctional
Facility, in her official and individual
capacity; THOMAS W. PHELAN,
Chaplain, El Dorado Correctional
Facility, in his official and individual
capacity,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Richard Grissom filed a 42 U.S.C. § 1983 action against defendants, alleging
numerous violations of his constitutional rights during his incarceration at three
Kansas correctional facilities: El Dorado Correctional Facility (EDCF), Lansing
Correctional Facility (LCF), and Hutchinson Correctional Facility (HCF). The
district court granted summary judgment in favor of defendants. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. Background
Mr. Grissom was convicted after a jury trial in Kansas of three counts of
first-degree murder, one count of aggravated kidnapping, four counts of robbery, two
counts of aggravated burglary, and one count of misdemeanor theft. He is serving
four consecutive life sentences for the first-degree-murder and
aggravated-kidnapping convictions.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Mr. Grissom has been in administrative segregation since August 4, 1996. He
was initially placed in segregation while incarcerated at LCF, pending an
investigation into his alleged involvement in narcotics trafficking at the prison. In
October of that year, his status was changed to “Other Security Risk” after the
investigation found that he was responsible for the procurement and trafficking of
contraband drugs at LCF. In December 1996, Mr. Grissom was transferred from
administrative segregation at LCF to administrative segregation at EDCF. When
Mr. Grissom asked for an explanation for his continued retention in segregation, he
was informed of the results of the investigation and told that “[d]ue to the elaborate
method used to traffic [the] contraband drugs, you are considered a threat to the
security of this facility if released to general population.” Aplt. App, Vol. III, at 459.
On February 15, 2001, Mr. Grissom’s status was changed to “Extreme Escape
Risk” after prison officials intercepted a letter from an outside source in which the
sender indicated a desire to aid Mr. Grissom in escaping LCF once he was released
back into general population. His status was changed back to “Other Security Risk”
on June 6, 2003. He remained in administrative segregation.
On November 25, 2003, while Mr. Grissom was in administrative segregation
at EDCF, prison officers found several contraband items, including a cellular phone
with extra batteries and accessories, in his cell. He was charged with trafficking in
contraband in a correctional institution, a felony. He pled no contest and was placed
in disciplinary segregation for thirty days.
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On January 26, 2005, while in administrative segregation at EDCF, a cellular
telephone was found on the floor near Mr. Grissom during a strip search. He was
charged with a violation of Kansas administrative regulations prohibiting the
possession of dangerous contraband by inmates. He pled no contest and was placed
in disciplinary segregation for thirty days. In February, he was transferred to
administrative segregation at LCF.
On June 1, 2005, while Mr. Grissom was in administrative segregation at LCF,
prison officers discovered numerous items of contraband in his cell, including: two
cellular telephones, chargers for the phones, sandpaper, razors, a soldering iron, box
cutter blades, a screw driver and drill bits. Mr. Grissom pled not guilty to the charge
of possessing dangerous contraband. He participated in a disciplinary hearing and
was found guilty. He was given forty-five days in disciplinary segregation. A week
later he was transferred to administrative segregation at HCF.
Because of the seriousness of Mr. Grissom’s three contraband violations while
he was in administrative segregation, Defendant Louis E. Bruce, the warden at HCF
during that time, felt compelled to develop a more restrictive protocol to manage
Mr. Grissom. Mr. Bruce stated in his affidavit that:
Cell phones are one of the most concerning devices an inmate can
possess. Not only do cell phones permit the inmate to communicate
beyond the ability of the correctional facility to monitor him, but an
inmate with a cell phone can actually execute an escape plan with those
on the outside, which was another serious concern about [Mr. Grissom]
possibly attempting an escape.
Id., Vol. I, at 121-22.
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The protocol included video surveillance of Mr. Grissom’s cell, limited
contact with staff members, more frequent searches of his cell, limitations on his time
in the yard and in the showers, and inspections of any items that were given to him.
Another part of the protocol was to rotate Mr. Grissom between HCF, LCF, and
EDCF “to make it more difficult for him to obtain these items of contraband by
reducing his opportunity to establish unduly familiar relationships with staff.” Id. at
124. Defendants David R. McKune and Duane Muckenthaler at LCF and Defendant
Raymond Roberts at EDCF adopted and implemented a similar protocol for
Mr. Grissom.
Since May 2005, Mr. Grissom’s confinement in segregation has been reviewed
monthly and semi-annually. Mr. Grissom has had the opportunity to participate in
the reviews. He has elected to participate in some but not all of the reviews.
In December 2007, Mr. Grissom filed a pro se complaint in district court,
raising a number of claims about the conditions of his confinement. The district
court dismissed his first four claims for failure to state a claim for relief.1 The
defendants filed a Martinez report regarding the remaining claims and then a few
weeks later filed a motion to dismiss those claims. The district court gave notice to
the parties that it was converting the motion to dismiss into a motion for summary
judgment. Mr. Grissom retained counsel who filed a response to the motion.
1
Mr. Grissom is not appealing the dismissal of those four claims.
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Defendant Roger Werholtz, the Kansas Secretary of Corrections at that time,
moved to be dismissed from the case, arguing that Mr. Grissom failed to show his
personal participation in the alleged constitutional violations. The other defendants
moved for summary judgment on the basis of qualified immunity, asserting that their
actions did not violate any federal constitutional or statutory right. The district court
granted judgment in favor of all defendants. Mr. Grissom now appeals from the
district court’s decision.
II. Discussion
Generally, we review a grant of summary judgment de novo, applying the
same legal standard as the district court. Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007). Under that standard, 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).
Review of summary judgment orders in the context of qualified immunity is
slightly different. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir.
2009). “When a defendant asserts qualified immunity at summary judgment, the
burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional
right and (2) the constitutional right was clearly established.” Id. (internal quotation
marks omitted). “In determining whether the plaintiff has met its burden of
establishing a constitutional violation that was clearly established, we will construe
the facts in the light most favorable to the plaintiff as the nonmoving party.” Id.
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On appeal, Mr. Grissom contends that the district court erred in dismissing
Mr. Werholtz for lack of personal participation and in granting summary judgment in
favor of the other defendants on the basis of qualified immunity. He asserts that the
district court erred in determining that he had not demonstrated a violation of his
constitutional rights on three of his claims.
In claim six, Mr. Grissom alleged that his First Amendment rights were
violated when Defendants Werholtz, Bruce, Sam Cline and Debra McConaghy
deprived him of magazine subscriptions while he was housed at HCF. In claim
seven, Mr. Grissom alleged that Defendants Werholtz, McKune, Bruce, and Cline
violated his due process rights under the Fourteenth Amendment and the cruel and
unusual punishment clause of the Eighth Amendment by retaining him in
administrative segregation from June 2005 to the present. In claim ten, Mr. Grissom
alleged that Defendants Werholtz and Thomas W. Phelan violated the Free Exercise
Clause and Establishment Clause of the First Amendment by forcing him to change
his religious preference in order to retain possession of a Celtic-cross necklace.
A. Magazine-Subscription Claim (Claim Six)
With respect to Mr. Grissom’s magazine-subscription claim, the district court
concluded that the prison regulation prohibiting inmates in segregation from
subscribing to magazines was reasonably related to a valid penological interest. See
Aplt. App., Vol. III, at 566-68 (applying four-factor analysis from Turner v. Safley,
482 U.S. 78, 89 (1987)). In reaching this conclusion, the district court noted that
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Mr. Grissom had not addressed the “logical safety rationale for limiting his access to
magazines—namely, the need to prevent him from receiving or passing contraband
hidden in magazines, or from using magazines for bartering.” Id. at 567. The court
noted also that Mr. Grissom had alternative means of exercising his First Amendment
right as he had access to reading materials from the prison library. The court further
noted that to accommodate Mr. Grissom’s request would have required the prison to
grant him an exception from its general order excluding segregation inmates from the
privilege of subscribing to magazines.
On appeal, Mr. Grissom relies on an unpublished district court decision,
Prison Legal News, Inc. v. Werholtz, No. Civ. A. 02-4054-MLB, 2007 WL 2875113
(D. Kan. Oct. 1, 2007), to support his position that the district court erred in its
consideration of this claim. In that case, the district court concluded that the
regulations requiring all prisoners in the general population to purchase magazine
subscriptions from their inmate account—which limited the amount an inmate could
spend on such subscriptions and effectively prohibited gift subscriptions from
families or friends outside of prison—was not reasonably related to the penological
interests identified by the prison. Id. at *1, *6. One of the three penological interests
identified in that case was security concerns, id. at *3, which is similar to the
penological interest identified here.
An unpublished case from a district court, however, is not precedent that this
court must follow. Moreover, the Turner analysis is a case-specific analysis. The
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Prison Legal News case did not involve the regulation at issue here prohibiting
inmates in segregation from subscribing to magazines, nor did it involve an inmate
with Mr. Grissom’s history of possessing dangerous contraband. And, as the district
court noted, the Supreme Court has upheld a prison regulation prohibiting access to
magazines for inmates in the most restrictive level of that state’s long-term
segregation unit, see Beard v. Banks, 548 U.S. 521, 524-526 (2006). Under the
circumstances in this case, we see no error in the district court’s determination that
Mr. Grissom failed to raise a material question of fact regarding the facial or
as-applied constitutionality of the magazine-subscription prohibition for inmates in
segregation.
B. Religious Liberty Claim (Claim Ten)
Mr. Grissom received a Celtic cross in December 2003 that was initially
approved by Chaplain Dow at EDCF and blessed by a Catholic priest in April 2006.
In August 2007, Mr. Grissom ordered a new chain to hold his cross. When
Defendant Phelan, another chaplain at EDCF, came to Mr. Grissom’s cell to deliver
the chain, he asked to see the cross. Defendant Phelan told Mr. Grissom that the
Celtic cross was not approved for Catholics under the relevant prison regulation and
would need to be confiscated unless he changed his religious preference.
Mr. Grissom had a change-of-religion form in his own documents and filled one out,
stating a change from Catholic to Protestant. He gave it to Defendant Phelan so he
could keep his Celtic cross. He then filed a grievance, but was unsuccessful. The
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response to the grievance notes that Mr. Grissom could submit a “Request for
Accommodation of Religious Practices” to seek an exception to the regulation
governing approved religious artifacts for each religion. Aplt. App, Vol. I, at 187.
Mr. Grissom did not file such a request.
Mr. Grissom stated in his complaint that he “had no alternative but to change
his religious denomination to Protestant on paper.” Id. at 18. But the district court
noted that Mr. Grissom “chose to change his stated religious affiliation so he could
keep the Celtic cross, but did not seek an exception to the policy which may have
permitted him to retain both his Catholic religion and his cross.” Id., Vol. III, at 583.
The court noted also that Mr. Grissom conceded in his complaint that although he
changed his religious denomination on paper, he did not change it “in his heart or
practices.” Id., Vol. I, at 18-19. The district court ultimately concluded that
Mr. Grissom had not established the existence of a genuine issue of material fact
regarding defendants’ violation of his free-exercise rights because the relevant prison
regulation did not substantially burden any sincerely-held religious belief of his nor
did any defendant coerce him into changing his religion.
On appeal, Mr. Grissom argues that there are factual disputes surrounding his
interaction with Defendant Phelan over the Celtic cross, but he does not identify how
those disputes are material. He also argues that defendants did not provide a valid
penological interest for the regulation. But the district court concluded that
defendants did not need to make such a showing because Mr. Grissom failed to meet
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the first part of the two-step inquiry of showing that the prison regulation
“substantially burdened any sincerely-held religious belief.” Id., Vol. III, at 584; see
also id. at 582 (setting forth two-step inquiry to show a constitutional violation based
on a free exercise claim). We see no reversible error in the district court’s
determination on this issue.
C. Excessive-Isolation Claims (Claims Seven and Nine)
Mr. Grissom’s complaint involved two claims related to his extended
placement in administrative segregation. The district court determined that many of
the acts alleged in claim nine were barred by the statute of limitations and that any
timely acts alleged in claim nine were duplicative of those alleged in claim seven.
Mr. Grissom does not challenge these rulings on appeal. Accordingly, he has waived
any challenge to the district court’s disposition of claim nine. See Bronson v.
Swenson, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an
opening brief generally forfeits appellate consideration of that issue.”).
In his complaint, Mr. Grissom asserted that defendants’ decision to keep him
housed in a segregation unit from June 2005 to the present constituted excessive
isolation in violation of the due process clause of the Fourteenth Amendment and of
the cruel and unusual punishment clause of the Eighth Amendment. The district
court concluded that Mr. Grissom’s allegations did “not come within the purview of
the Eighth Amendment’s prohibition against cruel and unusual punishment.”
Aplt. App., Vol. III, at 577. In reaching this conclusion, the district court explained
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that “[t]he denial of privileges which normally accompanies confinement in
administrative segregation does not amount to a denial of life’s necessities or present
a sufficiently serious potential for harm, nor does the record reveal officer’s
deliberate indifference to any risk to plaintiff’s health or safety.” Id.
Mr. Grissom does not appear to be challenging the district court’s disposition
of the Eighth Amendment portion of claim seven. He never mentions the Eighth
Amendment, how the district court erred in its treatment of that claim, or how his
allegations met the standard for showing such a constitutional violation; instead, his
briefing focuses almost exclusively on the district court’s conclusion that he had not
established a protected liberty interest that would implicate the due process clause of
the Fourteenth Amendment. See Aplt. Br. at 14-21. Under these circumstances, we
conclude that he has waived any challenge to the district court’s determination on the
Eighth Amendment portion of claim seven. See Bronson, 500 F.3d at 1104 (“[W]e
routinely have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.”).
With respect to the due process portion of claim seven, the district court
evaluated Mr. Grissom’s claim considering the four factors identified in Estate of
DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342-43 (10th Cir.
2007), for determining whether placement in administrative segregation implicates a
protected liberty interest that would give rise to a due process claim. Those factors
are: (1) whether “the segregation relates to and furthers a legitimate, penological
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interest, such as safety or rehabilitation”; (2) whether “the conditions of the
placement are extreme”; (3) whether “the placement increases the duration of
confinement”; and (4) whether “the placement is indeterminate.” Id. The district
court concluded that all four factors weighed against a protected liberty interest.
With respect to the first factor, the court found that defendants had met their
burden of showing a reasonable relationship between Mr. Grissom’s isolation and the
prisons officials’ asserted penological interests, noting Mr. Grissom’s propensity for
obtaining dangerous contraband and the security risks created by such behavior. On
the second factor, the court concluded that the conditions Mr. Grissom endured in
segregation were not extreme or atypical. On the third factor, the court noted that
Mr. Grissom is serving four life sentences and his parole-eligible date has not been
affected by his placement in segregation. Finally, on the fourth factor, the court
found that Mr. Grissom’s placement in administrative segregation is not
indeterminate because “the prisons conducted regular reevaluations of
[Mr. Grissom’s] placement in administrative segregation via twice-yearly program
reviews, as well as various monthly reviews.” Aplt. App., Vol. III, at 575.
The court concluded that Mr. Grissom had “failed to raise a material question
of fact that his long-term confinement in administrative segregation created a liberty
interest. Therefore, no particular process was constitutionally due or required.” Id.
at 576 (internal quotation marks omitted). But the court also noted that, even if
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Mr. Grissom had a protected liberty interest, the facts did not demonstrate that he was
denied due process.
On appeal, Mr. Grissom argues generally about the negative effects of solitary
confinement and the long duration of his segregation. He also contends that there are
factual disputes about the reasons for his continued placement in segregation,
pointing to apparent inconsistencies in the defendants’ summary judgment motion.
But Mr. Grissom’s chronological prison file reflects the following reasons for his
continued placement, which is consistent with the district court’s analysis:
Due to [Mr. Grissom’s] involvement in drug distribution and drug sales
at LCF, the escape correspondence intercepted by I&I and his recent
possession of prohibited items, he continues to pose a threat to the
safety and security of any facility in which he may be housed. His
status will remain as being housed in long term segregation on Other
Security Status.
Id., Vol. I, at 209. Mr. Grissom also conducts his own evaluation of the DiMarco
factors and concludes that they weigh in his favor, but we do not find his analysis
persuasive. Finally, Mr. Grissom does not address the district court’s conclusion
that, even if Mr. Grissom established a protected liberty interest, he received all of
the process that he was due. We see no reversible error in the district court’s
consideration of Mr. Grissom’s due process claim.
D. Personal Participation by Defendant Werholtz
The district court explained that § 1983 actions require “personal participation
in the specific constitutional violation,” and “that the denial of . . . grievances alone
is insufficient to establish personal participation.” Id., Vol. III, at 556 (alteration in
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original) (internal quotation marks omitted). Defendant Werholtz submitted an
affidavit in which he swore that he “was not directly involved with anything
connected with [Mr. Grissom’s] conditions of confinement” and that he “did not have
any direct involvement in anything about which [Mr. Grissom] now complains.” Id.,
Vol. I, at 117-18. He explained that the protocol for managing Mr. Grissom was
developed by Warden Bruce and that “[t]he details of the housing rules at each
facility were determined by each facility’s staff.” Id. at 118. In the district court and
on appeal, Mr. Grissom speculated that Defendant Werholtz had greater involvement
in managing the conditions of his confinement, but he did not provide any specific
facts to create a factual dispute on this issue. As the district court correctly
concluded, “Defendants’ admissible evidence on this issue defeats [Mr. Grissom’s]
speculation to the contrary.” Id., Vol. III, at 557.
III. Conclusion
We agree with the district court’s decision to dismiss Defendant Werholtz for
lack of personal participation. We also agree with the district court’s decision that
the other defendants were entitled to qualified immunity because Mr. Grissom did not
establish a genuine issue of material fact regarding their alleged violations of any of
his constitutional rights. Accordingly, for the reasons set forth herein and more fully
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stated in the district court’s thorough and well-reasoned thirty-eight-page
memorandum and order, we affirm the judgment of the district court.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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