Cardoso v. Calbone

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 18, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

R OG ELIO CA RD O SO ,

Plaintiff-Appellant,

v. No. 06-6266

SA M C ALB ON E, Warden; TA NYA
VA NW EY, Recreation Officer; GR EG
COURTNEY, Recreation Supervisor;
JEREM Y DAVIS, Correctional
Counselor/Case M anager; JEW EL
BEASLEY, Correctional Officer, Lt.;
RUSSELL STEW ART, Correctional
Officer; TRAVIS SM ITH, Assistant
W arden; JO E SPRUIELL, Unit
M anager; HORACE ALEXAN DER,
Correctional Counselor/Case M anager;
M ELINDA GUILFOYLE, Director’s
Designee; RON W ARD, Director,

Defendants-Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D.C. No. CIV-04-1212-L)

Submitted on the briefs: *

*
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
(continued...)
Rogelio Cardoso, Pro Se.

Anne E. Zachritz, Jennifer B. Scott, of Andrews Davis, Oklahoma City,
Oklahoma, for Defendants-Appellees Sam Calbone, Tanya Vanwey, Greg
Courtney, Jeremy Davis, Jewel Beasley, Russell Stewart, Travis Smith, Joe
Spruiell, and Horace A lexander.

Linda Soper, Assistant Attorney General, Oklahoma A ttorney General’s Office,
Litigation Section, Oklahoma City, Oklahoma, for Defendants-Appellees Ron
W ard and M elinda Guilfoyle.

Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.

BR ISC OE, Circuit Judge.

Plaintiff Rogelio Cardoso, an Oklahoma inmate proceeding pro se here as

in the district court, appeals the district court’s grant of summary judgment in

favor of defendants on his claims that they violated his constitutional rights.

He filed suit under 42 U.S.C. § 1983 alleging that defendants abridged his

due-process rights w hen they reduced his security-classification level from four to

two, which adversely affected the rate at which he could earn credits against his

sentence. In addition, he seeks damages for defendants’ violation of his rights in

a disciplinary proceeding that resulted in a sentence to administrative segregation

*
(...continued)
therefore ordered submitted without oral argument.

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and a loss of 180 earned credits. W e exercise jurisdiction under 28 U.S.C. § 1291

and affirm.

Background

During the relevant time, M r. Cardoso was incarcerated at Great Plains

Correctional Facility, a private prison. On February 3, 2004, he was called out of

his cell during a shakedown. W hile waiting to return to his cell, he had an

exchange with prison personnel, including defendant Vanwey, a prison

recreational officer. Shortly thereafter, defendant Spruiell, his unit manager,

informed him that his security classification level would be lowered from four to

two because during the shakedown he had been disrespectful and had exhibited a

poor attitude to staff. Under Oklahoma’s inmate-classification system, an inmate

is entitled to have his term of imprisonment reduced based upon the class level to

which he is assigned. Okla. Stat. Ann. tit. 57, § 138(A). W hile at level four,

M r. Cardoso earned forty-four credits per month, but at level two, he earned only

tw enty-two. See id. § 138(D )(2)(b).

The next day, February 4, M r. Cardoso’s adjustment review committee

issued a report officially dropping his security classification level to two. On

February 6, M r. Cardoso prepared request-to-staff forms and presented one form

each to defendants Vanwey and Smith. As a result, M r. Cardoso was issued a

citation for coercion of staff, later reduced to a charge of individual disruptive

behavior. Following a disciplinary hearing, M r. Cardoso was found guilty and

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sentenced to thirty days in administrative segregation and a loss of 180 earned

credits.

M r. Cardoso filed grievances challenging both the reduction in

classification and the resolution of the disruptive-behavior charge. The

grievances were ultimately denied; each was concluded by a decision issued

by defendant Guilfoyle. M r. Cardoso then filed suit. Defendants submitted

a special report and filed motions for summary judgment. A magistrate judge

recommended granting summary judgment in defendants’ favor, and the district

court adopted that recommendation following a de novo review. 1

On appeal, M r. Cardoso argues (1) the district court, sua sponte, should

have construed his § 1983 complaint as a habeas petition filed under 28 U.S.C.

§ 2241; (2) the prison officials who reduced his credit-earning status did not

comply with Okla. Stat. tit. 57, § 138(F); (3) the reduction of his classification

level, which adversely affected his opportunity to accrue earned credits,

implicated a liberty interest that required due-process protections; (4) defendants

maliciously conspired to fabricate the misconduct charge; and (5) defendants

1
M r. Cardoso concedes that defendant W ard did not participate personally in
any of the actions that allegedly violated his constitutional rights. Accordingly,
he has not stated a claim against M r. W ard. Trujillo v. W illiams, 465 F.3d 1210,
1227 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s
direct personal responsibility for the claimed deprivation of a constitutional right
must be established.”). W e construe M r. Cardoso’s pleadings liberally to
conclude that they state a claim against each of the remaining defendants.

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acted with malicious intent and violated due process by charging and convicting

him in a prison disciplinary proceeding, thus entitling him to money damages.

Standard of Review

“W e review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed. R. Civ. P. 56(c).” Steffey v.

Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (quotation omitted). For

dispositive issues on which the plaintiff will bear the burden of proof at trial,

he must “go beyond the pleadings and designate specific facts so as to make a

show ing sufficient to establish the existence of an element essential to [his] case

in order to survive summary judgment.” Sealock v. Colorado, 218 F.3d 1205,

1209 (10th Cir. 2000) (quotation omitted). “[E]vidence, including testimony,

must be based on more than mere speculation, conjecture, or surmise.

Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.) (citation and

quotations omitted), cert. denied, 127 S. Ct. 131 (2006). Because M r. Cardoso is

representing himself, we liberally construe his pleadings; however, we do not act

as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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 Discussion

A. Construe as § 2241 Habeas Petition

M r. Cardoso contends that the district court should have construed his

claims as a habeas petition under 28 U.S.C. § 2241, even though he never made

that request in the district court. His complaint did not challenge the execution of

his sentence, which is the proper purpose of a § 2241 petition. See Dulworth v.

Evans, 442 F.3d 1265, 1268 (10th Cir. 2006). Rather, the complaint sought

money damages based on various defendants’ allegedly improper actions. W e

decline to impose upon district courts a requirement to address claims and legal

theories not presented. In addition, “we find no reason to deviate from the

general rule that we do not address arguments presented for the first time on

appeal.” United States v. Helmstetter, 479 F.3d 750, 755 (10th Cir. 2007)

(quotation and alteration omitted).

B. Reduction in Credit-Earning Status

M r. Cardoso alleges that his constitutional rights were abridged by the

reduction in his ability to earn credits against his sentence. He first claims that

the defendants w ho signed the adjustment review report reducing his

classification level failed to comply with Okla. Stat. tit. 57, § 138(F) (pertaining

to adjustment review committees). He complains that they did not hold a meeting

to review his case and that M r. Spruiell wrote up the report for the others to sign,

thus preventing them from exercising their discretion. “An action under § 1983,

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however, cannot be maintained on the basis of alleged violations of state law.”

Stanko v. M aher, 419 F.3d 1107, 1117 (10th Cir. 2005). Accordingly,

M r. Cardoso is not entitled to relief on this claim.

M r. Cardoso also asserts that he was deprived of his due-process rights

when defendants reduced his classification level, which, in turn, reduced the

number of earned credits he could accrue each month. He contends that Okla.

Stat. tit. 57, § 138 created a liberty interest in the rate at which he could accrue

earned credits. Therefore, he maintains that he was entitled to due process to

determine whether M r. Spruiell’s assessment of his behavior as disrespectful was

supported by any evidence. See Wolff v. M cDonnell, 418 U.S. 539, 557 (1974)

(announcing the process due in prison disciplinary proceedings).

M r. Cardoso relies on Wilson v. Jones, 430 F.3d 1113, 1120-21, 1123

(10th Cir. 2005), cert. denied, 127 S. Ct. 158 (2006), the most recent published

Tenth Circuit case addressing an Oklahoma prisoner’s credit-earning status.

Inexplicably, defendants did not mention Wilson in their appellate briefs.

In Wilson, the plaintiff, an O klahoma state prisoner, was convicted of a Class X

misconduct, which required his classification level to be reduced from four to

one. 430 F.3d at 1115. The mandatory reduction implicated a liberty interest

because “[p]rison officials exercised absolutely no discretion over the imposition

of [the punishment] and had no discretion to allow [plaintiff] to avoid

[punishment].” Id. at 1120-21. Because the misconduct conviction “‘inevitably

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affect[ed] the duration of [the prisoner’s] sentence,’” id. at 1120 (quoting Sandin

v. Conner, 515 U .S. 472, 487 (1995)), he w as entitled to the due-process

protections of Wolff, 418 U.S. at 557, Wilson, 430 F.3d at 1124.

In contrast to Wilson, the reduction of M r. Cardoso’s classification level

was not mandatory. Under the applicable scheme, an adjustment review

comm ittee is vested with discretion to determine a prisoner’s classification level

based on various subjective factors, including evaluations for participation in

work, education, or program assignments; an ability to maintain adequate

standards for his personal hygiene and maintenance of his living area; and

cooperative behavior toward facility staff and other inmates. Okla. Stat. tit. 57,

§ 138(D)(1) & (3). The committee uses an evaluation scale from “outstanding”

to “poor” to assess an inmate’s performance and assign a classification level.

Id. § 138(D)(4). Objective factors, such as length of incarceration and whether an

inmate has been given a work, education, or program assignment, must also be

considered in determining an inmate’s classification level, see id. § 138(D)(1),

but the majority of the criteria are subjective, see id. § 138(D )(1), (3) & (4).

Accordingly, we reject M r. Cardoso’s argument that Wilson recognized an

unconditional liberty interest in an Oklahoma prisoner’s credit-earning

classification. W e conclude that because the determination that M r. Cardoso was

disrespectful to staff and the attendant decision to reduce his classification level

were discretionary, no liberty interest w as implicated. This conclusion comports

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with “the view expressed [by the Supreme Court] that federal courts ought to

afford appropriate deference and flexibility to state officials trying to manage a

volatile environment.” Sandin, 515 U.S. at 482.

W e turn to M r. Cardoso’s final argument in support of a liberty interest

in his classification level. He claims that a liberty interest was implicated by

M r. Spruiell’s memorandum reducing his credit-earning level because it contained

derogatory remarks that injured his reputation. The memorandum characterized

M r. Cardoso’s behavior toward prison staff as disrespectful. He contends that

this injury to his reputation, coupled with the reduction in his credit-earning level,

satisfied the “stigma plus” standard articulated in Gwinn v. Awmiller, 354 F.3d

1211, 1216 (10th Cir. 2004), where this court held that classifying the plaintiff as

a sex offender, together with the registration and treatment requirements for sex

offenders, implicated a liberty interest. The Gwinn plaintiff therefore was entitled

to due process before being classified as a sex offender. Id. at 1217. In contrast,

the characterization of M r. Cardoso’s conduct as disrespectful to prison staff does

not rise to the level necessary to injure his reputation. Gwinn is inapposite.

Because the reduction in M r. Cardoso’s classification level does not implicate a

liberty interest, the district court correctly granted summary judgment to

defendants.

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 C. Disciplinary Proceedings

M r. Cardoso asserts that some or all of the defendants conspired to violate

his rights by fabricating the misconduct charge of coercion of staff, later changed

to individual disruptive behavior. He has not alleged “specific facts showing an

agreement and concerted action amongst the defendants.” Tonkovich v. Kan. Bd.

of Regents, 159 F.3d 504, 533 (10th Cir. 1998). Accordingly, his conclusory

allegations of a conspiracy are insufficient to state a § 1983 claim. See id.

M r. Cardoso next alleges that defendants violated his due-process rights as

follows: (1) defendants conspired with malicious intent to charge and convict

him of the misconduct violation; (2) defendant Courtney prepared a memo falsely

accusing him of “bugging [M ]rs. Vanwey about his write up,” R. Vol. I, Doc. 22,

Attach. 7 at 6; (3) he did not receive advance notice of the disciplinary hearing;

(4) the disciplinary hearing officer (D HO) ruled against him, finding erroneously

that “some evidence” supported the conviction; (5) the DHO did not state the

facts on which inferences were based or give reasons for finding that the report of

the prison official was more credible than the reports by M r. Cardoso and his

witness; and (6) the DHO based her decision, in part, on a mistaken belief that

M r. Cardoso violated a rule against handing request-to-staff forms directly to

prison personnel. As relief for the alleged due-process violations, M r. Cardoso

is seeking to recover money damages. Id., Vol. II, D oc. 46, at 5.

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 M r. Cardoso’s claims are foreclosed by Edwards v. Balisok, 520 U.S. 641

(1997). There, the Supreme Court explained that “a state prisoner’s claim for

damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence,’

unless the prisoner can demonstrate that the conviction or sentence has previously

been invalidated.” Id. at 643 (quoting Heck v. Humphrey, 512 U.S. 477, 487

(1994)). This rule also applies to challenges to punishments imposed as a result

of prison disciplinary infractions. See Edwards, 520 U.S. at 648. W e have

considered the allegations underlying M r. Cardoso’s due-process claim, and we

agree with the district court that a judgment in his favor would necessarily imply

the invalidity of his disciplinary conviction. Consequently, because M r. Cardoso

has not shown that the conviction for individual disruptive behavior has

previously been invalidated, his request for damages resulting from his prison

disciplinary proceedings was correctly denied based on Heck and Edwards.

The judgment of the district court is AFFIRMED.

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