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James v. Argeys

United States District Court, D. Colorado

February 26, 2015

HENRY L. JAMES, JR. Plaintiff,
v.
MR. ARGEYS, Shift Commander over BVCF inmates, Defendant.

ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

CRAIG B. SHAFFER, Magistrate Judge.

THIS MATTER comes before the court on Defendant Argeys' Motion to Dismiss (doc. # 23), filed on August 11, 2014. By Minute Order (doc. #25), dated August 12, 2014, pro se Plaintiff Henry L. James, Jr. was directed to file any response he had to Defendant's Motion to Dismiss on or before September 9, 2014. Mr. James filed a Motion for Extension of Time (doc. #28) on September 24, 2014, requesting leave to file his response brief by November 2, 2014. On September 24, 2014, I granted Plaintiff's request and directed him to respond to the Motion to Dismiss on or before November 3, 2014. That Minute Order was mailed to Mr. James' current address at Fremont Correctional Facility in Canon City, Colorado. The court's records indicate that Plaintiff's copy of the September 24, 2014 Minute Order was not returned in the mail as undeliverable. To date, Mr. James has not responded to the Motion to Dismiss.

"[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response." Issa v. Comp USA, 345 F.3d 1174, 1177 (10th Cir. 2003) (internal quotation marks and citation omitted). "This is consistent with the purpose of Rule 12(b)(6) motions as the purpose of such motions is to test the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Id. at 1177-78. "Consequently, even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted." Id. I have carefully considered the pending motion, the entire court file and the applicable case law.

FACTUAL BACKGROUND

Mr. James initiated this action on April 7, 2014 with the filing of his Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a pro se Prisoner Complaint, along with attached exhibits. On April 10, 2014, Magistrate Judge Boyd Boland directed Mr. James to file an amended complaint after concluding that the original complaint failed "to allege facts that demonstrate how each of the named defendants personally participated in the asserted constitutional violations." Plaintiff also was told that his amended complaint "must comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and must set forth "simply and concisely, his specific claims for relief, including the specific rights that allegedly have been violated and the specific acts of each defendant that allegedly violated his rights." See doc. #6.

On May 6, 2014, Mr. James filed his Amended Complaint asserting under 42 U.S.C. § 1983 violations of his Eighth Amendment right against cruel and unusual punishment allegedly perpetrated by Warden Lenaerich, Case Manager Denwalt and Shift Captain Argeys, who were then assigned to the Buena Vista Correctional Facility (BVCF), in Buena Vista, Colorado. With an Order (doc. #10) dated May 14, 2014, the district court found that Mr. James had "failed to make any allegations demonstrating the personal participation of Warden Lenaerich or Case Manager Denwalt in the asserted constitutional violation" and dismissed the claims against those two defendants as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b).

The only claim remaining in this action is directed against Shift Captain Argeys and alleges a violation of Plaintiff's "Eighth Amendment right to be free from cruel and unusual punishment." More specifically, Mr. James asserts that on March 19, 2014, he spoke with Defendant Argeys about "possible problems with me and some other inmates here at the facility BVCF." After Plaintiff provided the names of those individuals, Defendant Argeys "handcuffed me and put me in segregation." Mr. James alleges that Defendant Argeys placed him in punitive without "[filing] a complaint or [making] any record of [Plaintiff] being in segregation." Plaintiff further claims that while in segregation, he was "denied all my rights such as religious (sic.), not being able to contact my family on the phone or my attorney on my appellate proceeding, " and that he was "handcuffed to and fro from the shower as well as handcuffed and shackled to and fro from the yard." Mr. James seeks an order requiring Colorado Department of Corrections (CDOC) Headquarters "to move me to another Level III medium facility as soon as possible, "[1] and to compensate him for the time he spent in punitive segregation in the amount of "$150.00 to $300.00 a day."

Defendant Argeys has moved to dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), arguing that Mr. James' claim is barred by the Eleventh Amendment and the doctrine of qualified immunity. Defendant also contends that Plaintiff's claim for compensatory damages is barred by the Prison Litigation Reform Act in the absence of any suggestion that Mr. James suffered a physical injury.

ANALYSIS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a motion to dismiss may be granted if the court lacks subject matter jurisdiction. The determination of subject matter jurisdiction is a threshold question of law. Madsen v. United States ex. rel. United States Army Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). The court applies a rigorous standard of review when presented with a motion to dismiss pursuant to Rule 12(b)(1). Consumers Gas & Oil, Inc. v. Farmland Indus. Inc., 815 F.Supp. 1403, 1408 (D. Colo. 1992)

Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. A court lacking jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking. A Rule 12(b)(1) motion to dismiss must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction. The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

Stine v. Wiley, Civ. No. 07-cv-01250-WYD-KMT, 2008 WL 4277748, at *3 (D. Colo. 2008) (internal quotation marks and citations omitted).[2]

Rule 12(b)(6) states that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitations of the elements of a cause of action will not do." See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

To withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Id. As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007),

the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

"The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim above the level of mere speculation. Id. The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

While pro se pleadings should be "construed liberally and held to a less stringent standard than formal proceedings drafted by lawyers, " Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), that standard does not override a pro se plaintiff's responsibility to provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. See Willis v. MCI Telecomms., 3 F.Supp.2d 673, 675 (E.D. N.C. 1998). This court cannot be a pro se litigant's advocate. Hall, 935 F.2d at 1110. Just as importantly, a plaintiff may not defeat a motion to dismiss by alluding to facts that have not been alleged, or by suggesting violations that have not been pled. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

1. A Claim Against Defendant in his Official Capacity

The Amended Complaint does not clearly indicate whether Defendant Argeys is being sued in his individual capacity, his official capacity, or both. Where a plaintiff fails to indicate the nature of the liability sought, the court should look to "the substance of the pleadings and the course of the proceedings' to determine whether the plaintiff is suing the defendants in their individual capacities or their official capacities, or both." Arceo v. City of Junction City, Kansas, 182 F.Supp.2d 1062, 1089-90 (D. Kan. 2002) (quoting Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993)). Here, where the Amended Complaint is not completely clear, the court will presume that Defendant Argeys has been sued both in his official and individual capacities.

Assuming that Mr. James is suing Defendant in his official capacity, he is in reality attempting to impose liability on Mr. Argeys' employer, the Colorado Department of Corrections. See Meade v. Grubbs, 841 F.2d 1512, 1529 (10th Cir. 1988). A suit against a state official in his or her official capacity is treated as a suit against the state. Hafer v. Melo, 112 S.Ct. 358, 361 (1991). Absent a waiver, the Eleventh Amendment forbids a suit for damages against a state in federal court. Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir. 1993) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Eleventh Amendment immunity extends to the states themselves and to those governmental entities that are "arms of the state." Ambus, 995 F.2d at 994. States, state officials sued in their official capacities, and governmental entities that are considered "arms of the state" are not "persons" within the meaning of 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Such entities cannot be sued for monetary damages arising from alleged conduct which deprives a plaintiff of his or her civil liberties. The Colorado Department of Corrections is an arm of the state and thus is entitled to Eleventh Amendment immunity. If the Eleventh Amendment applies, it confers total immunity from suit, not merely a defense to liability. Ambus, 995 F.2d at 994 (citation omitted). Thus, any claim for money damages against Defendant Argeys in his official capacity is barred by the Eleventh Amendment and properly dismissed with prejudice for lack of subject matter jurisdiction.

2. Physical Injury

It is well-established that in an action brought pursuant to § 1983, a plaintiff must prove not only a constitutional violation, but also demonstrate that the constitutional deprivation caused him some actual injury. Miner v. City of Glen Falls, 999 F.2d 655, 660 (2d Cir. 1993). The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, has heightened this requirement by barring a prisoner from bringing a civil action "for mental or emotional injury suffered while in custody without a prior showing of physical injury." See 42 U.S.C. § 1997e(a) and (e).[3]

Although Mr. James alleges that he was subjected to cruel and unusual punishment during the period he spent in punitive segregation, a careful reading of the Amended Complaint finds no allegation or use of the phrase "physical injuries." Plaintiff's "Request for Relief" states, without elaboration, that he was placed on "mental medication" on April 10, 2014 apparently as a result of his confinement in segregation. "[A]lthough claims for mental and emotional distress can be brought pursuant to § 1983, ... § 1997e(e) provides that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms.'" Turner v. Schultz, 130 F.Supp.2d 1216, 1222-23 (D. Colo. 2001) (quoting Perkins v. Kansas Department of Corrections, 165 F.3d 803, 807 (10th Cir. 1999)). See also Flanery v. Wagner, No. 98-3235, 182 F.3d 931, at *2 (10th Cir. May 19, 1999) (holding that the trial court properly granted summary judgment as to plaintiff's claim for compensatory damages where plaintiff failed to show that he suffered physical injuries as a result of defendant's alleged conduct). For example, where inmates have alleged that defendants were deliberately indifferent to their safety or welfare, or inflicted emotional injury by depriving them of basic necessities of life, courts have applied section 1997e(e) to restrict the availability of judicial remedies if there is no showing of physical injury. See, e.g., Mason v. Schriro, 45 F.Supp.2d 709, 716 (W.D. Mo. 1999) ("a review of cases from other courts indicates that [§ 1997e(e)] is most frequently applied where plaintiff alleges that defendants' actions have caused him to fear physical injury and fear for his safety and welfare, but he fails to show any physical injury"). Moreover, "a number of courts have held that a prisoner cannot satisfy Section 1997e(e) by alleging only that he suffered from the physical manifestations of mental or emotional injuries." Hughes v. Colorado Department of Corrections, 594 F.Supp.2d 1226, 1238 (D. Colo. 2009).

Quite simply, the Amended Complaint contains no factual allegations that would demonstrate or even infer that Mr. James suffered physical injury caused by conduct attributable to the Defendant. This omission is fatal to Plaintiff's claim for compensatory damages. Nevertheless, Mr. James would not be precluded from recovering nominal or punitive damages if he were to prevail on the merits. See, e.g., Wares v. VanBebber, 391 F.Supp.2d 1237, 1253 (D. Kan. 2004).

3. Qualified Immunity

Defendant Argeys has raised the defense of qualified immunity as to the single claim asserted against him. Under the doctrine of qualified immunity, government officials are immune from civil damages liability for constitutional torts as long as their actions could reasonably have been thought consistent with the rights they allegedly violated. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity protects defendants not only from liability, but also from suit. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Such immunity is qualified in that it does not obtain when otherwise immune officials violate clearly established statutory or constitutional rights of which a reasonable person would have known." Armijo v. Wagon Mound Public Schools, 159 F.3d 1253, 1260 (10th Cir. 1998) (quoting Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). Whether Defendants are entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).

This court must review Defendant's claim of qualified immunity "under the customary motion to dismiss standard." Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. However, the court is also mindful of the United States Supreme Court's admonition that a ruling on the issue of qualified immunity should be made at the earliest possible stage of the proceeding in order to preserve the protections of the privilege. See Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).

Resolution of a dispositive motion based on qualified immunity involves a two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, ... the court must decide whether the right at issue was clearly established at the time of the defendant's alleged misconduct.

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks and citations omitted). In determining whether a right is clearly established, the relevant inquiry is "whether it would be clear to a [reasonable government official] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. "A reviewing court may exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. "Qualified immunity is applicable unless" the plaintiff can satisfy both prongs of the inquiry. Id. The plaintiff bears the burden of showing with particularity facts and law establishing the inference that the defendant violated a clearly established federal constitutional or statutory right. Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994).

The defense of qualified immunity also implicates the pleading requirements of Fed.R.Civ.P. 8(a). Robbins v. Oklahoma, 519 F.3d at 1248. Qualified immunity insures that public officials are not subjected to "broad-ranging discovery' that can be peculiarly disruptive of effective government." Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987).

Although we apply "the same standard in evaluating dismissal in qualified immunity cases as to dismissals generally, " complaints in § 1983 cases against individual government actors pose a greater likelihood of failures in notice and plausibility because they typically involve complex claims against multiple defendants.... Without allegations sufficient to make clear the "grounds" on which the plaintiff is entitled to relief, it would be impossible for the court to perform its function of determining, at an early stage in the litigation, whether the asserted claim is sufficient clear.

Robbins, 519 F.3d at 1249. The court will proceed to apply these standards to the claim asserted in the Amended Complaint.

A. Plaintiff's Eighth Amendment Claim

The Eighth Amendment prohibits cruel and unusual "punishments, " not cruel and unusual "conditions." Farmer v. Brennan, 511 U.S. 825, 832 (1994). Where an Eighth Amendment claim is based upon conditions of confinement, an inmate must demonstrate that the deprivation suffered was "objectively sufficiently serious, '" and that the defendant had a "sufficiently culpable state of mind" or was "deliberately indifferent" to the inmate's health or safety. Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302-303 (1991)). Deliberate indifference requires a higher degree of fault than negligence or even gross negligence. Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990). A defendant acts with deliberate indifference if his or her conduct "disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Id. at 1496. The Supreme Court explained the test for deliberate indifference:

We hold... that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer, 511 U.S. at 837. See also Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997). "To be guilty of deliberate indifference, the defendant must know he is creating a substantial risk of bodily harm." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (internal quotation marks and citation omitted).

The Amended Complaint fails to properly allege a violation of the Eighth Amendment based upon the conditions of Mr. James' placement in punitive segregation. Conditions of confinement that constitute cruel and unusual punishment must be measured by evolving standards of decency that mark the progress of a maturing society. Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981) (Eighth Amendment violated only when an inmate is deprived of the "minimal civilized measure of life's necessities"). The Eighth Amendment requires prison officials to "provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical care." Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)). See also Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) ("state must provide... reasonably adequate ventilation, sanitation, bedding, hygienic materials and utilities (i.e., hot and cold water, light, heat, plumbing)"); Finney v. Arkansas Bd. of Corrections, 505 F.2d 194, 207-08 (8th Cir. 1974) (holding that a prisoner in punitive solitary confinement should not be deprived of "basic necessities including light, heat, ventilation, sanitation, clothing and a proper diet").

The Amended Complaint does not allege a denial of basic necessities, such as food, clothing, shelter or sanitation. Rather, Mr. James summarily alleges that he was denied "religious" rights and was prevented from contacting his family and attorney on the telephone. He also claims that he was handcuffed while moving to and from his cell. Those allegations, standing alone, do not describe conditions of confinement "sufficiently serious" to constitute cruel and unusual punishment. Moreover, the Amended Complaint does not set forth any facts that would demonstrate Defendant Argeys could have drawn and actually did draw the inference that Plaintiff's conditions of confinement in punitive segregation posed a substantial risk of serious harm. In the absence of additional well-pled facts, I conclude that Mr. James' allegations fail to state a claim that Defendant Argeys subjected to him to a substantial risk of serious harm in violation of the Eighth Amendment.

B. A Possible Due Process Claim

While the Amended Complaint expressly invokes the Eighth Amendment, the allegations state that Defendant Argeys placed Mr. James in punitive segregation without filing a complaint or preparing the necessary record in support of that action. As a result of those omissions, Mr. James contends that he spent approximately 66 days in punitive segregation without any administrative record that would support that action. Because the court must liberally construe Plaintiff's pro se pleadings, I address whether Mr. James' allegations as sufficient to support a claim under the Due Process Clause of the Fourteenth Amendment.

As the Tenth Circuit explained in Meek v. Jordan, 534 F.Appx. 762, 765 (10th Cir. 2013), on a motion to dismiss, the court must decide a threshold question: has the plaintiff alleged facts that would plausibly implicate a protected liberty interest?

For inmates being punished for misconduct, a liberty interest exists only when the penalty lengthens the confinement or involves an "atypical and significant hard ship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).

Id. In this case, it appears that the length or duration of Plaintiff's confinement did not change as a result of the time he spent in punitive segregation at BVCF. Thus, as in Meek, the issue in this case "is whether 60 days [or so] in punitive segregation would involve an atypical and significant hardship on [Mr. James] in relation to the ordinary incidents of prison life." Id.

In analyzing a prisoner's due process claim, the court's inquiry does not focus on the language of specific prison regulations, but rather on the specific conditions alleged in the complaint relative to the ordinary incidents of prison life. Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks and citation omitted). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S. at 485-87).

As a general proposition, prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence"), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (Colorado laws and regulations do not entitle inmates to remain in the general population absent certain conduct).

The Tenth Circuit has identified relevant factors to consider when determining whether placement in administrative segregation implicates a protected liberty interest: (1) whether "the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) [whether] the conditions of placement are extreme; (3) [whether] the placement increases the duration of confinement...; and (4) [whether] the placement is indeterminate." Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007). "While courts in this circuit have used these factors to guide the liberty interest analysis, we have never suggested that the factors serve as a constitutional touchstone." Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012) (citations omitted). And "any assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." DiMarco, 473 F.3d at 1342 (citation omitted).

In this case, it appears that Mr. James was placed in punitive segregation at BVCF for no more than 66 days.[4] Placement for that limited duration, standing alone, does not create a cognizable liberty interest that triggers the protections of due process. See, e.g., Gaines v. Stenseng, 292 F.3d 1222, 1226 (10th Cir. 2002) ("Finally, we note that the holding in this case is limited to the length of the seventy-five day disciplinary segregation. Disciplinary segregation for some lesser period could fail as a matter of law to satisfy the atypical and significant requirement in a case in the future.") (internal quotation marks and citation omitted)). Cf. Meek, 534 F.Appx. at 765 (plaintiff failed to plead "any facts that would plausibly indicate that 60 days in disciplinary segregation is atypical in relation to the ordinary incidents of prison life") (citing Hoskins v. Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005) (two months in punitive segregation did not trigger a liberty interest); Scott v. Crowley County Correctional Facility, No. 03-1253, 2003 WL 22093917, at *2 (10th Cir. Sept. 10, 2003) (65 days in segregation did not impose an "atypical and significant hardship in relation to the ordinary incidents of prison life"); Blum v. Fed. Bureau of Prisons, No. 98-1055, 1999 WL 638232, at *3 (10th Cir. Aug. 23, 1999) (ninety-day disciplinary detention in segregation did not differ in degree and duration from ordinary incidents of prison life to create a protected liberty interest).

As for his specific conditions of confinement while in punitive segregation, Plaintiff contends, in part, that his ability to communicate with family members and his attorney was restricted. Yet, a prisoner does not have a protected liberty interest in visitation privileges. See Jenner v. McDaniel, 123 F.Appx. 900, 905 (10th Cir. 2005). Cf. Overton v. Bazzetta, 539 U.S. 126, 137 (2003) (restrictions on visitation privileges do not represent "a dramatic departure from accepted standards for conditions of confinement"); Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (holding that plaintiff had no constitutional right to visitation privileges); Dunford v. McPeak, No. 7:08cv00018, 2008 WL 204481, at *2 (W.D. Va. Jan. 24, 2008) ("[n]either prisoners nor would-be visitors have a constitutional right to visitation... [i]n sum, visitation is a privilege, not a constitutional right"). Similarly, Mr. James' claim of reduced access to legal information does not establish a protected liberty interest in the absence of any alleged actual injury. Cf. Watson v. Dorsey, No. 99-2205, 215 F.3d 1338 (10th Cir. Feb. 29, 2000); Vasquez v. Zavaras, No. 95-1501, 82 F.3d 427 (10th Cir. Apr. 9, 1996); Gorton v. Miller, No. CIV-08-1342-F, 2009 WL 2252112, at *3 (W.D. Okl. Jul. 28, 2009). See also Lewis v. Casey, 518 U.S. 343, 349-53 (1996) (a plaintiff alleging denial of access to the courts must demonstrate he has suffered actual injury by showing that the defendant's acts hindered his ability to pursue a non-frivolous legal claim); Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir. 1978) "restricted access to the law library is not per se denial of access to the courts").

Even if the court broadly construes the Amended Complaint to encompass a due process claim, Mr. James has failed to allege facts that plausibly state a protected liberty interest. Without an underlying liberty interest, Plaintiff was not deprived of constitutionally mandated due process protections. Accordingly, the Amended Complaint must be dismissed as to Defendant Argeys.

4. Injunctive Relief

Actions in federal court seeking injunctive relief against state officials are not always barred by the Eleventh Amendment. See Ex parte Young, 209 U.S. 123, 159-60 (1908) (holding that the Eleventh Amendment generally does not bar official capacity claims seeking prospective injunctive relief from a state official). See also Will, 491 U.S. at 71 n. 10 ("Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.'") (quoting Kentucky v. Graham, 473 U.S. at 167 n. 14).

Plaintiff's Amended Complaint requests injunctive relief in the form of an order requiring the CDOC Headquarters "to move [him] to another Level III medium facility as soon as possible."[5] See doc. #19. As Plaintiff is not longer at BVCF, his request for injunctive relief is now moot and should be denied on that basis. See Ricco v. Conner, No. 04-3261, 146 Fed.App'x. 249, 253 (10th Cir. Aug. 8, 2005) (prisoner no longer in administrative segregation does not have viable claims pertaining to the administrative segregation sanction) (citation omitted); Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (inmate's claims for declaratory and injunctive relief regarding prison conditions were moot when he was transferred to another facility and was no longer subject to those conditions) (citations omitted); Weaver v. Wilcox, 650 F.2d 22, 27 n. 13 (3d Cir. 1981) (stating that prisoner's transfer from the prison moots claim for injunctive and declaratory relief with respect to prison conditions).

CONCLUSION

In view of the foregoing analysis, Defendant Argeys' Motion to Dismiss (Doc. #23) is GRANTED. No claims or Defendants remaining, this civil action is dismissed in its entirety.

Attorneys and Law Firms

Mikeal Glenn Stine, Florence, CO, pro se.

J. Benedict Garcia, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER AFFIRMING AND ADOPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION

WILEY Y. DANIEL, District Judge.

I. Introduction

*1 This matter is before the Court on the Defendant's Motion to Dismiss which was filed on October 9, 2007 (docket # 21). The matter was referred to Magistrate Judge Mix for a recommendation by Order of Reference dated October 10, 2007. Magistrate Judge Mix issued a Recommendation on August 8, 2008, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b), D.C.COLO.LCivR. 72.1.

II. Analysis

Magistrate Judge Mix recommends that Defendant's Motion to Dismiss be granted. On August 15, 2008, Plaintiff filed a timely Objection, which necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1).

I now turn to the merits of the Recommendation. Magistrate Judge Mix found that Plaintiff's claims pursuant to Bivens against Defendant Ron Wiley in his official capacity are barred by sovereign immunity and recommended that these claims be dismissed for lack of subject matter jurisdiction. Recommendation at 7.

As to the Plaintiff's Claims One and Two, Magistrate Judge Mix found that although asserted as two separate claims they allege the same disparate and discriminatory treatment by Defendant and should be analyzed as one equal protection claim. Id. She also found that Plaintiff has not alleged that Defendant acted based upon a discriminatory intent or motive. Further, she found that Plaintiff does not allege that he experienced different conditions than other similarly situated inmates in the "C-Range" SHU. Nor has he alleged that his a member of a constitutionally protected class or that he has been denied a fundamental right. Id. at 8. Therefore, Defendant's action of prohibiting radios need only bear a rational relation to a legitimate state purpose. Id. (citing Vacco v. Quill, 521 U.S. 793, 799 (1997)). Magistrate Judge Mix found that Plaintiff's Complaint fails to allege facts sufficient to overcome the presumption of reasonableness applied to prison policies and Plaintiff's Claims One and Two should be dismissed. Id. at 10. I agree with Magistrate Judge Mix that Plaintiff's Claim One and Two should be dismissed.

As to the First Amendment claim, Magistrate Judge Mix found that Plaintiff merely makes a conclusory statement that his First Amendment rights were violated, that he does not state that his beliefs are religious in nature, that he has not alleged any facts showing the inability to watch religious programing was necessary to the practice of his religion, and that he has not clearly described the nature of the religious practice or ritual he was prevented from conducting or its relevance to his religion. Id. at 11. Therefore, Magistrate Judge Mix found, in the absence of such allegations, Plaintiff cannot show a violation of his First Amendment Free Exercise rights and Plaintiff's Claim Three must be dismissed. Id. I agree with Magistrate Judge Mix that Plaintiff's Third Claim for relief should be dismissed.

*2 Plaintiff objects to the Recommendation asserting that it is not his fault that the Court did not receive his response to the Motion to Dismiss and that because he is a pro se Plaintiff Magistrate Judge Mix should allow him to amend the Complaint. Plaintiff cites no case law and fails to provide any specific arguments as to why he believes Magistrate Judge Mix's recommendation is misplaced. While I acknowledge that Plaintiff is unhappy with Magistrate Judge Mix's recommendation, such complaints do not constitute a valid legal objection.

Having reviewed Magistrate Judge Mix's Recommendation and Plaintiff's Objection, I find that the Recommendation is well-reasoned and thorough. Accordingly, for the reasons stated above, it is

ORDERED that the Recommendation of United States Magistrate Judge (filed August 8, 2008) is AFFIRMED AND ADOPTED. In accordance therewith, it is

FURTHER ORDERED that Defendant's Motion to Dismiss, filed October 9, 2008 (docket # 21) is GRANTED. It is

FURTHER ORDERED that this case is DISMISSED.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KATHLEEN M. TAFOYA, United States Magistrate Judge.

This matter is before the court on "Defendant's Motion to Dismiss" (Doc. No. 21). Jurisdiction is premised upon 28 U.S.C. § 1331 (2007) and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

FACTUAL BACKGROUND

1. Facts

The following facts are taken from Plaintiff's Prisoner Complaint and the parties' submissions with respect to this Recommendation. Plaintiff is an inmate at United States Penitentiary in Florence, Colorado ("ADX Florence"). (Amended Prisoner Compl. at 2 [hereinafter "Compl."] [filed July 9, 2007].) Plaintiff states he was housed in "administrative housing" from October 2, 2006, through February 23, 2007, and, at the time of the filing of the Complaint, he was "pending" administrative detention ("AD") in Special Housing Unit ("SHU"). (Id. at 3.)

In Claim One, Plaintiff asserts Defendant violated mandates of 28 C.F.R. § 541.22, thereby violating his liberty interest by not allowing radio or television. (Id. at 3-4.) In Claim Two, Plaintiff asserts Defendant has discriminated against him by not allowing him a radio with headphones, thereby violating his equal protection rights. (Id. at 5.) In Claim Three, Plaintiff asserts he is being denied free exercise of religion because he is not allowed to listen to or watch religious services through closed circuit television. (Id. at 6.) He claims without television and radio, he is denied the ability to practice any type of religion. (Id. )

Plaintiff has named Ron Wiley, the Warden of ADX Florence, as a defendant in both his individual and official capacities. (Id. at 2.) Plaintiff seeks equitable relief and money damages. (Id. at 8.)

Defendant has filed a motion to dismiss, asserting that (1) this court lacks jurisdiction over Plaintiff's official capacity Bivens claims; (2) there was no equal protection violation; (3) there was no religious violation; (4) 18 U.S.C. § 3626 prohibits the court from ordering the Bureau of Prisons to provide all inmates with radios; and (5) Defendant is entitled to qualified immunity. (Defendant's Mot. to Dismiss [hereinafter "Mot."] [filed October 9, 2007].)

2. Procedural History

*3 Plaintiff filed a Petition for Writ of Mandamus ("Writ") on June 14, 2007. (Doc. No. 3.) On June 18, 2007, Magistrate Judge Boyd N. Boland sent an order stating the writ would be construed as complaint pursuant to Bivens. (Doc. No. 4.) In his order, Magistrate Judge Boland directed Plaintiff to file an amended complaint within thirty days. (Id. ) Plaintiff filed his Amended Prisoner Complaint on July 9, 2007. ("Compl.") On October 9, 2007, Defendant filed his motion to dismiss. (Mot.) No response or reply have been filed.1 This motion is ripe for review and recommendation.

1 Plaintiff states in a "Motion for Status Conference" filed on April 11, 2008. that he filed a response to the motion to dismiss "on or about November 28, 2007." (Doc. No. 45, Mot. for Status Conference at 1.) The court has reviewed the entire docket in this case, as well as the dockets in all other cases filed by Plaintiff in this District and pending in late-November/early-December 2007, including 07-cv-00121-WYD-KLM; 07-cv-00799-WYD-KLM; 07-cv-01839-WYD-KLM; 07cv-02203-WYD-KLM. The court has been unable to locate any filing resembling a response to the motion to dismiss. In addition, in his response to the Motion for Status Conference, Defendant states, "Plaintiff never responded to the motion to dismiss."(Doc. No. 48, Resp. to Mot. for Status Conference at 3.) Therefore, this court must conclude that Defendant was never served with a response, and Plaintiff never filed a response.

STANDARD OF REVIEW

The court notes at the outset that because Plaintiff appears pro se, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

1. Lack of Subject Matter Jurisdiction

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter."Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). A Rule 12(b) (1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909. Accordingly, Plaintiff in this case bears the burden of establishing that this court has jurisdiction to hear his claims.

2. Failure to State a Claim Upon Which Relief Can Be Granted

*4 Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007)." The court's function on a Rule 12(b) (6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted).

Thus, all well-pled factual allegations in a complaint are accepted as true and construed in the light most favorable to the plaintiff. Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.2007). Further, the court is to make all reasonable inferences in the plaintiff's favor. Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007), the Supreme Court articulated a new "plausibility" standard, under which a complaint must include "enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.

The issue in reviewing the sufficiency of a plaintiff's complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ( overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Although a plaintiff does not need to state each element of his claim precisely, he must plead minimal factual allegations on those material elements that must be proved. See Fed.R.Civ.P. 8(a); Hall, 935 F.2d at 1110.

ANALYSIS

1. Bivens Claims and Sovereign Immunity

In Bivens, 403 U.S. at 388, the Supreme Court recognized "an implied private right of action for damages against federal officers alleged to have violated a citizen's constitutional rights." Correctional Services Corporation v. Malesko, 534 U.S. 61, 66 (2001)." To establish a Bivens cause of action, a party must have some evidence to support finding that [a] federal agent acting under color of such authority violated some cognizable constitutional right of plaintiff." Hron v. Jenkins, 15 F.Supp.2d 1082, 1085 (D.Kan.1998) (citing Bivens, 403 U.S. at 388).

"If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity." Malesko, 534 U.S. at 72." The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP." Malesko, 534 U.S. at 72. See also Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir.2005) ("a Bivens claim lies against the federal official in his individual capacity - not... against officials in their official capacity"); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002) (doctrine of sovereign immunity precludes a Bivens action against the United States or any agency thereof); Weaver v. United States, 98 F.3d 518, 520 (10th Cir.1996) (claim for damages against a federal defendant in his official capacity is treated as a claim against the United States).

*5 Plaintiff's claims pursuant to Bivens against Defendant Ron Wiley in his official capacity are barred by sovereign immunity and are thus properly dismissed with prejudice for lack of subject matter jurisdiction.

2. Equal Protection

Plaintiff's Claims One and Two, although asserted as two separate claims, allege the same disparate and discriminatory treatment by Defendant in not allowing Plaintiff a radio or television in the SHU. Therefore, Claims One and Two will be analyzed as one claim for violation of Plaintiff's equal protection rights. "[T]he Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups." Washington v. Davis, 426 U.S. 229, 239 (1976). See also United States v. McHorse, 179 F.3d 889, 897 n. 1 (10th Cir.1999) ("While the Fifth Amendment contains no equal protection clause, the equal protection standards of the Fourteenth Amendment are incorporated into the Fifth Amendment's promise of due process") (citation omitted)." The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). The challenged disparate treatment must be the result of purposeful discrimination. Harris v. McRae, 448 U.S. 297, 323 n. 26 (1980).

To properly allege an equal protection claim, Plaintiff must plead sufficient facts to "demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002). Although unclear, it appears Plaintiff is alleging that some SHU inmates are treated differently with regard to possession of radios than "C-Range" SHU inmates and inmates in the General Population Unit. (Compl. at 4-5.) Plaintiff also states the C-Range inmates who are allowed to have access to radios and television are pending new murder and assault charges, whereas he is not. (Id. )

Plaintiff has not alleged that Defendant acted based upon a discriminatory intent or motive. See Watson v. City of Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir.1996) ("A plaintiff in an equal protection action has the burden of demonstrating discriminatory intent.") (citations omitted); Villanueva v. Carere, 85 F.3d, 481, 485 (10th Cir.1996) (Although "[t]he discriminatory purpose need not be the only purpose, ... it must be a motivating factor in the decision.").

Furthermore, even if Plaintiff properly alleged disparate treatment based upon intentional discrimination, the Complaint must also set forth facts demonstrating the disparate treatment lacks justification under the requisite degree of scrutiny. Veney, 293 F.3d at 731. Plaintiff does not allege that he experienced different conditions than other similarly situated inmates in the "C-Range" SHU. In fact, he alleges all inmates in the C-Range are denied access to radio and television. Plaintiff has not alleged that he is a member of a constitutionally protected class or that he has been denied a fundamental right, so the Defendant's action in prohibiting radios for certain SHU inmates need only bear a rational relation to a legitimate state purpose. See Vacco v. Quill, 521 U.S. 793, 799 (1997) (the Equal Protection Clause permits classifications and distinctions which neither burden fundamental rights nor target a suspect class, provided that such classification or distinction bears a rational relation to some legitimate end).

*6 When equal protection challenges arise in a prison context..., courts must adjust the level of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their facilities in a safe and secure manner. In a prison context, therefore, we must determine whether the disparate treatment is "reasonably related to [any] legitimate penological interests."... Accordingly, to state a claim upon which relief may be granted, [Plaintiff] must allege facts sufficient to overcome the presumption of reasonableness applied to prison policies.

Veney, 293 F.3d at 732 (citations omitted). See also Heller v. Doe ex rel. Doe, 509 U.S. 312, 319-20 (1993) ("a classification neither involving fundamental rights nor proceeding along suspect lines... cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose") (citations omitted); Jones v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 134 (1977) (holding that prison administrators "need only demonstrate a rational basis for their distinctions" when classifying inmates); Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir.1994) (to "withstand equal protection review, " the challenged classification "must bear only a rational relationship to a legitimate" penological concern).

A prison control unit such as the SHU is recognized as "an internal disciplinary mechanism." See United States v. Johnson, 223 F.3d 665, 673 (7th Cir.2000). Because the classification of prisoners based upon their situs of incarceration does not employ a suspect class or burden a fundamental right, it "is accorded a strong presumption of validity." Heller, 509 U.S. at 319. Here, Plaintiff states in response to his grievance regarding this issue, he was told that radios that meet security requirements are being sought. (Compl. at 4.) Security requirements are necessary to afford prison officials the "necessary discretion to operate their facilities in a safe and secure manner." Veney at 732. Plaintiff's Complaint fails to allege facts sufficient to overcome the presumption of reasonableness applied to prison policies. Id. Therefore, Plaintiff has failed to state a claim upon which relief can be granted, and Plaintiff's Claims One and Two are properly dismissed. Id.

2. Free Exercise of Religion

It is long established that inmates retain their First Amendment rights while incarcerated. Pell v. Procunier, 417 U.S. 817, 822 (1974) (addressing freedom of speech claims); Cruz v. Beto, 405 U.S. 319 (1972) (holding that inmates must be afforded a reasonable opportunity to practice their religion). An inmate's exercise of constitutional rights is necessarily limited, however, "both from the fact of incarceration and from valid penological objectives - including deterrence of crime, rehabilitation of prisoners, and institutional security." Pell, 417 U.S. at 822-23; see also, O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Accordingly, prison regulations which impinge on an inmate's constitutional rights are valid if they are "reasonably related to legitimate penological interests." Turner v. Salley, 482 U.S. 78, 89 (1987).

*7 The first questions in any free exercise claim are whether the plaintiff's beliefs are religious in nature, and whether those religious beliefs are sincerely held. Snyder v. Murray, 124 F.3d 1349, 1352 (10th Cir.1997) (citing United States v. Seeger, 380 U.S. 163, 185 (1965))." If either of these requirements is not met, a court need not reach the question of whether a legitimate penological interest outweighs the exercise of the First Amendment right because there is simply no free exercise' to protect." Kay v. Friel, No. 2:06-CV-23TS, 2007 WL 295556, at *2 (D.Utah Jan. 26, 2007) (citing Carpenter v. Wilkinson, 946 F.Supp. 522, 525 (N.D.Ohio 1996). Plaintiff's only allegation regarding denial of free exercise of religion is that "[a]t USP-Florence ADX all religions and services are done over institutional closed circuit T.V. and not by allowing A/D inmates in SHU to have T.V./radio" denies him free exercise of religion in accordance with the First Amendment. (Compl. at 6.) Plaintiff further alleges that without T.V. and radio, he is denied the ability to practice any type of religion as all services at ADX are conducted by closed circuit T.V. (Id. ) Plaintiff has failed to state anything other than a conclusory statement that his First Amendment rights have been violated. (Id. ) Plaintiff fails to allege any facts showing why he needs to watch religious programming to practice his religion, or how the inability to watch religious programming prevents him from practicing any type of religion. Therefore, Plaintiff has failed to state any facts which may lead the court to conclude that what beliefs he might have, whether those beliefs are religious in nature, and whether those beliefs are sincerely held. Snyder, 124 F.3d at 1352. Accordingly, Plaintiff's Claim Three is properly dismissed.

WHEREFORE, for the foregoing reasons, the court respectfully

RECOMMENDS that "Defendant's Motion to Dismiss" (Doc. No. 21) be GRANTED.

ADVISEMENT TO THE PARTIES

Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b) (1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiff's waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).

D.Kan., D.C. No. 97-CV-3154.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

ORDER AND JUDGMENT*.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

*1 After examining the briefs and the 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.

Plaintiff-Appellant Michael M. Flanery, appearing pro se, appeals the district court's entry of summary judgment in favor of Defendant-Appellee Danielle Wagner. Plaintiff initiated this action pursuant to 42 U.S.C. § 1983, alleging that Defendant and other prison officials violated his civil rights by discriminating against him on the basis of race, displaying deliberate indifference to his safety, and promoting a "[r]iotous" atmosphere between black and white inmates. R, Doc. 1 at 2. His claims seem to stem primarily from his allegation that Defendant started or spread a rumor among prison inmates that Plaintiff was a white supremacist and that he had asked for a swastika to use in his religious observances. Plaintiff claimed that by making this alleged statement Defendant violated prison rules and regulations and thereby violated his due process rights. Plaintiff further asserted that, as a result of Defendant's alleged statement, his life is in danger, he has been subjected to threats and questioning by black inmates, and he has suffered adverse psychological effects. Plaintiff sought injunctive and declaratory relief as well as compensatory and punitive damages. In addition to his complaint, Plaintiff submitted three motions for appointment of counsel to the district court. The magistrate judge denied these motions in an Order dated January 28, 1998.

In an Order dated July 31, 1997, the district court granted Plaintiff leave to proceed in forma pauperis and dismissed all named defendants except for Defendant Wagner. Additionally, the court ordered prison officials at the Lansing Correctional Facility to undertake an investigation of the complaint and submit a written report regarding the matters alleged in Plaintiff's complaint pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). Defendant subsequently submitted an answer to Plaintiff's complaint along with a Martinez report. In response, Plaintiff submitted a pleading entitled "Suggestions in Opposition to Defendant[']s Answer, " R., Doc. 20, in which he addressed the affirmative defenses asserted by Defendant. Defendant then filed a motion for summary judgment. Plaintiff submitted a response to the summary judgment motion which was accompanied by statements from various inmates with knowledge about his allegations.

The district court granted Defendant's motion for summary judgment on August 11, 1998. According to the court, Plaintiff's claim for money damages was precluded by a provision of the Prison Litigation Reform Act of 1995, which states: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The court also held that Plaintiff was not entitled to declaratory or injunctive relief because he presented no evidence that he was likely to suffer future injury as a result of any rumors started or spread by Defendant. Plaintiff timely filed a notice of appeal and the district court granted him leave to proceed on appeal in forma pauperis.

*2 On appeal, Plaintiff contends that the district court failed to apply the law and dismissed his complaint on improper reasoning. He also reiterates his claims that Defendant violated his right to due process by acting in deliberate indifference to his safety.

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. See Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. See Byers, 150 F.3d at 1274.

Due to his pro se status, we have construed Plaintiff's complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This action is subject to the Prison Litigation Reform Act because Plaintiff filed his complaint after its effective date. See Craig v. Eberly, 164 F.3d 490, 494 (10th Cir.1998) (stating that section 1997e(e) applies to cases commenced after its enactment). Section 1997e(e) of the PLRA requires plaintiff's to make "a prior showing of physical injury" to maintain a civil action for any mental or emotional injury suffered while in custody. 42 U.S.C. § 1997e(e). Because Plaintiff has not shown that he suffered any physical injury as a result of Defendant's alleged conduct, the district court properly entered summary judgment on his claim for compensatory damages. Cf. Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 807 (10th Cir.1999) (stating that suits seeking damages for mental and emotional distress "cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms'" (quoting Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir.1997)).

Although Plaintiff also sought punitive damages against Defendant, and although claims for such damages are not necessarily barred by section 1997e(e), see Perkins, 165 F.3d at 808 n. 6, punitive damages are available under 42 U.S.C. § 1983 only for conduct which is "shown to be motivated by evil motive or intent[ ] or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Plaintiff has made no showing that Defendant's alleged conduct rose to that level in this case. Accordingly, summary judgment was proper in this respect as well.

*3 Additionally, we agree with the district court that Plaintiff is not entitled to declaratory or injunctive relief. Plaintiff presented no evidence that Defendant initiated any rumor. In fact, the statements of Plaintiff's fellow inmates on which he relies suggest that another inmate may have initiated the rumor. See R., Doc. 29, 12/10/97 Letter from Frank Bolin to Michael Flanery at 1; 4/26/98 Affidavit of Ricky F. Gregg at 1-2. Further, although the evidence suggests that Defendant may have confirmed that she had heard a rumor about Plaintiff in response to an inquiry by an inmate, see R., Doc. 32 at 2 n. 1, there is nothing in the record to suggest that she told anyone else about the rumors or otherwise spread the rumors among the inmate population. Because Plaintiff failed to present any evidence supporting his claims, he has not established that Defendant engaged in any conduct for which declaratory or injunctive relief would be available.

If Plaintiff had succeeded in demonstrating that Defendant engaged in conduct for which declaratory or injunctive relief were appropriate, he still would be required to demonstrate the existence of a "real and immediate threat that he would again' suffer similar injury in the [relatively near] future." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). However, in light of our conclusion that declaratory and injunctive relief are inappropriate in this case, we need not reach the issue of whether Plaintiff has sufficiently demonstrated the existence of a threat of future injury.1

1 In addition, we need not address the thorny issue of whether allegations that a defendant spread rumors that a prisoner is a racist would, standing alone, be sufficient to prove the likelihood of future injury required to state a claim for declaratory or injunctive relief. In this case, Plaintiff likely would not be entitled to such relief in any event due to his evident success in convincing his fellow inmates that he is not a white supremacist. See R., Doc. 29, 2/2/97 Statement by Frank Bolin at 2; 12/10/97 Letter from Frank Bolin to Michael Flanery at 1.

The decision of the United States District Court for the District of Kansas is, therefore, AFFIRMED.

Attorneys and Law Firms

*763 Timothy Meek, Denver, CO, pro se.

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.

ORDER AND JUDGMENT*

* This order and judgment does not constitute precedent. 10th Cir. R. 32.1(A).
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.

ROBERT E. BACHARACH, Circuit Judge.

Mr. Timothy Meek sued four prison officials, and the federal district court dismissed the action on grounds that it was too vague and that Mr. Meek had failed to comply with prior orders to correct the pleading defects. Disagreeing with the district court's ruling, Mr. Meek appeals. We need not decide whether the amended complaint was too vague, however, because we conclude that Mr. Meek has failed to state a claim on which relief can be granted. Thus, we affirm the dismissal on different grounds.

The Amended Complaint

While incarcerated, Mr. Meek was charged with a disciplinary infraction. He states that authorities conducted a hearing, found him guilty, and ordered punitive segregation for 60 days. Complaining that this sanction violated his rights to due process and equal protection, Mr. Meek sues under 42 U.S.C. § 1983.

The District Court's Rationale

The district court dismissed the action without prejudice on the ground that the amended complaint was too vague. We need not address the district court's rationale when we can affirm on different grounds. See Colo. Flying Academy, Inc. v. United States, 724 F.2d 871, 879-80 (10th Cir.1984). We can affirm on different grounds here because the amended complaint fails to state a claim on which relief can be granted.

*764 The Standard for Dismissal

Mr. Meek is appearing in forma pauperis and is a prisoner suing government employees over prison conditions. Because of these circumstances, federal law would have required the district court to screen the amended complaint even if it had been sufficiently specific. Prison Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) (2006); Prison Litigation Reform Act, 42 U.S.C. § 1997e(c)(1) (2006). That screening would have required the court to decide whether the amended complaint stated a claim on which relief could be granted. Prison Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) (2006); Prison Litigation Reform Act, 42 U.S.C. § 1997e(c)(1) (2006).

In screening the amended complaint for this purpose, we apply the standard under Federal Rule of Civil Procedure 12(b)(6) for failure to state a valid claim. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.2007) (citation omitted). Under this standard, we disregard conclusory allegations, which are not entitled to a presumption of truthfulness. Ashcroft v. Iqbal, 556 U.S. 662, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). After disregarding conclusory allegations, we consider the remaining factual allegations to determine whether they plausibly suggest a right to relief. Id.

Mr. Meek's Equal Protection Claim

[1] The equal protection claim consists of one sentence: "The 60 day punitive sanction violated plaintiff's Timothy Meek's rights and constituted a [sic]... equal rights violation due to [his] prior gang affiliation tattoos, under the 14th Amendment to the United States Constitution." Am. Compl. at 6, ECF No. 15, Meek v. Jordan, 13-cv-659-BNB (D.Colo. May 7, 2013). This sentence does not contain sufficient facts to create a plausible right to relief as an equal-protection violation.

The Equal Protection Clause is violated when the government discriminates between similarly-situated individuals. Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996) (per curiam). Though Mr. Meek invokes this clause, he does not identify anyone who was similarly-situated.

From the single sentence in the amended complaint, we think the claim is based on suspicion that Mr. Meek was given 60 days in punitive segregation - while others were given lighter penalties - because he had tattoos that showed affiliation with a gang. Am. Compl. at 6, ECF No. 15, Meek v. Jordan, 13-cv-659-BNB (D.Colo. May 7, 2013).1 This allegation does not contain enough factual content to suggest a plausible equal-protection claim.

1 The Sixth Circuit Court of Appeals has held that the Equal Protection Clause does not prohibit classification of prisoners based on gang affiliation. Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir.2005). We need not decide whether gang affiliation provides a permissible basis for differences in classification. As discussed in the text, Mr. Meek has not alleged any facts that would plausibly indicate similarities with others disciplined for comparable infractions.

Though Mr. Meek refers to his gang tattoos, he does not allege any facts that would suggest similarities to other prisoners who were treated more favorably. The omission is fatal to the equal-protection claim. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir.1994) (concluding that a prisoner's equal-protection claim was frivolous because of the inability to allege similarities "in every relevant respect" to other inmates who were classified more favorably); see also Fogle v. Pierson, 435 F.3d 1252, 1260-61 (10th Cir.2006) (a prisoner's equal-protection claim, based on *765 a difference in the length of administrative detention, was frivolous because it was not plausible to suggest identical circumstances with other inmates who were treated more favorably). As a result, Mr. Meek has not stated a valid equal-protection claim.

Mr. Meek's Due Process Claim

[2] The amended complaint also includes a due process claim. For this claim, the threshold issue is whether Mr. Meek has alleged facts that would plausibly implicate a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). He has not done so.

For inmates being punished for misconduct, a liberty interest exists only when the penalty lengthens the confinement or involves an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (atypical and significant hardship); Wilson v. Jones, 430 F.3d 1113, 1120-21 (10th Cir.2005) (length of confinement). Mr. Meek does not suggest that he had to spend more time in prison because of his disciplinary conviction. Thus, the issue is whether 60 days in punitive segregation would involve an atypical and significant hardship on Mr. Meek in relation to the ordinary incidents of prison life.

In Sandin v. Conner , the Supreme Court held that 30 days in disciplinary segregation did not implicate a liberty interest. 515 U.S. at 475-76, 486, 115 S.Ct. 2293. Applying this principle, we later held that a prisoner had failed to state a valid claim because four weeks in an isolation cell would not have created an atypical, significant deprivation without other factual allegations. Gee v. Pacheco, 627 F.3d 1178, 1193-94 (10th Cir.2010).

The present case involves punitive segregation for 60 days, rather than 30 days or 4 weeks. But Mr. Meek has not pleaded any facts that would plausibly indicate that 60 days in disciplinary segregation is atypical in relation to the ordinary incidents of prison life. See Estate of DiMarco v. Wyo. Dep't Corr., 473 F.3d 1334, 1343 (10th Cir.2007) (placement in administrative segregation for fourteen months did not trigger a liberty interest under Sandin); accord Hoskins v. Lenear, 395 F.3d 372, 374-75 (7th Cir.2005) (two months in punitive segregation did not trigger a liberty interest). Thus, the due-process claim is deficient as a matter of law based on the absence of a protected liberty interest.

Disposition of the Appeal

The dismissal of the action is affirmed.

Attorneys and Law Firms

*879 Leo Scott, Sterling, CO, pro se.

Ken Salazar, Attorney General, Denver, CO, for Defendant-Appellee.

Before EBEL, HENRY and HARTZ, Circuit Judges.

ORDER AND JUDGMENT*

* After examining the brief 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

HARTZ, Circuit Judge.

**1 Plaintiff pro se Leo Scott is a prisoner in the custody of the Colorado Department of Corrections. On April 24, 2003, he filed a complaint under 42 U.S.C. § 1983, naming as Defendants the Crowley County Correctional Facility (CCCF), CCCF Property, and CO Hollonsworth. Plaintiff alleged that he was improperly held in segregation for 65 days at CCCF; that during this time he was not allowed to possess some of his personal property; and that upon his release from segregation, he discovered that several items of his personal property were missing. The district court, ruling that Plaintiff's claims were legally frivolous, dismissed his complaint in an order entered May 15, 2003. Plaintiff now appeals the district court's decision. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

In dismissing the complaint, the district court relied on 28 U.S.C. § 1915(e)(2)(B)(i), which applies to suits filed by prisoners proceeding in forma pauperis. The provision directs courts to "dismiss [a] case at any time if the court determines that... the action or appeal... is frivolous or malicious." 28 U.S.C. § 1915(e) (2)(B)(i). The United States Supreme Court has held that "[b]ecause the frivolousness determination is a discretionary one, ... a § 1915(d) dismissal is properly reviewed for an abuse of that discretion...." Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). In light of subsequent statutory amendments, this court has "question[ed] whether abuse *880 of discretion is now the correct standard to apply" and suggested that "a determination of frivolousness may now be subject to de novo review...." Basham v. Uphoff No. 98-8013, 1998 WL 847689, at *4 n. 2 (10th Cir. Dec. 8, 1998) (unpublished disposition). Here, the distinction between the two standards of review is of no consequence, because we would reach the same result regardless of whether we applied a de novo standard or an abuse of discretion standard. According to Plaintiff, officials at CCCF denied him access to some of his personal property while he was in segregation and then, following his release from segregation, failed to return to him various items of property worth $149.80, as well as important legal papers. Although Plaintiff's complaint had not specified the constitutional ground on which he was basing this claim, the district court construed it as a Fourteenth Amendment Due Process claim. The district court first observed that Plaintiff "does not allege that Defendants intentionally lost or destroyed his property, " and that his allegations would thus fall short of supporting a Due Process claim. Dist. Ct. R., Doc. No. 4, at 3. The United States Supreme Court has held that Due Process "is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

[1] Although the district court seemed to read Plaintiff's complaint as alleging only unintentional loss, the court did not entirely rely on this assumption in determining that Plaintiff's lost-property claim was frivolous. The court stated that "even assuming the loss of [Plaintiff's] personal property was intentional, an unauthorized intentional deprivation of property does not violate due process if an adequate postdeprivation remedy for the loss is available." Dist. Ct. R., Doc. No. 4, at 3 (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) ("intentional deprivations [of property] do not violate [the Due Process] Clause provided, of course, that adequate state post-deprivation remedies are available.")). Gillihan v. Shillinger, 872 F.2d 935, 939-40 (10th Cir.1989) ("when the deprivation is not random and unauthorized, but is pursuant to an affirmatively established or de facto policy, procedure, or custom, the state has the power to control the deprivation and, therefore, generally must, in the absence of compelling reasons to the contrary, give the plaintiff a predeprivation hearing.") Plaintiff has alleged that the prison officials failed to respond to a grievance he filed, and this might suggest that the CCCF's administrative grievance procedure would not provide an adequate remedy. But Plaintiff has not explained why he could not bring a state court action seeking damages for the loss of his property, under a theory of conversion.

**2 Plaintiff also claims that he was improperly held in segregation for 65 days following his transfer to CCCF from another facility. Treating this claim as arising under the Due Process Clause, the district court concluded that Plaintiff had failed to demonstrate that he had been deprived of a protected liberty interest without due process of law. Under the federal Constitution a prisoner "is not entitled to a particular degree of liberty in prison." Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). The Supreme Court has rejected the notion that " any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).

*881 To be sure, a liberty interest may stem from a source other than federal constitutional law. "States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). These state-created liberty interests, however, "will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484 (internal citations omitted). Here, the district court found that Plaintiff had "not allege[d] facts that amount to an atypical and significant hardship, " and had not shown "that the length of [his] confinement inevitably will be affected by his placement in segregation at the [CCCF]." Dist. Ct. R., Doc. No. 4, at 4.

[2] As a final matter, we note that in his Motion for Leave to Proceed on Appeal without Prepayment of Costs or Fees, Plaintiff refers to having his "eight [sic], fourteenth, and first amendment [rights] violated." Motion at 3. The district court limited its analysis to the Fourteenth Amendment, because Plaintiff had not identified a constitutional basis for his claims, and the court "construe[d] the complaint liberally as asserting due process claims." Dist. Ct. R., Doc. No. 4, at 2. We have reviewed Plaintiff's complaint and have determined that he failed to develop an Eighth Amendment or First Amendment theory before the district court. Accordingly, we do not consider those claims. See Tele-Communications, Inc. v. Comm'r of Internal Revenue, 104 F.3d 1229, 1232 (10th Cir.1997) ("Generally, an appellate court will not consider an issue raised for the first time on appeal.")

Having considered the brief and record in this case, we conclude that the district court was correct in dismissing Plaintiff's complaint as frivolous. Therefore, for substantially the same reasons set forth in the district court's order of May 15, 2003, we AFFIRM the dismissal of Plaintiff's complaint under 28 U.S.C. § 1915(e) (2)(B)(i). In addition, we note that Plaintiff has applied to proceed without prepayment of the appellate filing fee. This motion is DENIED, and Plaintiff is ordered to make immediate payment of the unpaid balance due.

Before BRORBY, EBEL and LUCERO, Circuit Judges.

ORDER AND JUDGMENT*

* After examining appellant's brief and the 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) and 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

EBEL.

*1 Petitioner-Appellant Chester Blum brought a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Blum raised five claims to establish that his sentence was enhanced without due process of law by prison officials in two related disciplinary hearings. The district court sua sponte denied Blum's petition for relief prior to service of process on respondent, the Federal Bureau of Prisons ("BOP") and denied Blum's motion to proceed in forma pauperis on appeal. We deny Blum's application for in forma pauperis status, and dismiss.

We construe the dismissal of Blum's § 2241 petition as a dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) because (1) he was proceeding in forma pauperis; (2) dismissal occurred prior to service of process; and (3) the district court found most of Blum's claims "without merit." See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993) ("The district court dismissed [plaintiff's § 2241] petition prior to service of process on the defendants; thus, we find that it dismissed the petition as frivolous under 28 U.S.C. § 1915(d), " the precursor to § 1915(e).) We review a dismissal under § 1915(e)(2)(B) (i) for abuse of discretion. See McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir.1997).

On February 12, 1998, Blum, a prisoner at the United States Penitentiary at Leavenworth, Kansas, was found guilty at a prison disciplinary hearing of escape from a secure institution and possession, manufacture, or introduction of a hazardous tool. Blum appealed his disciplinary conviction, and on March 31, 1998, the BOP regional director ordered a de novo rehearing of the charges. On May 5, 1998, Blum was again found guilty of the disciplinary charges against him, and was punished with disciplinary segregation for ninety days, loss of fifty-four days of good time credit, and a disciplinary transfer to the United States Penitentiary in Florence, Colorado.

Blum asserts a due process violation at his disciplinary hearing on February 12, 1998 because his conviction was not supported by evidence in the record. This argument fails because Blum had a de novo rehearing on May 5, 1998 regarding the disciplinary charges against him. Blum was convicted at that rehearing and his subsequent segregation, loss of good-time credit, and transfer were sanctions imposed as a result of the second hearing. Thus, even if there were due process violations at the February 12, 1998 hearing, we would have no basis for overturning Blum's conviction at his May 5, 1998 hearing.1

1 Blum points us to a provision of BOP Directive 5270.07 which states:
Where a remand is directed, the appropriate Unit Discipline Committee or DHO [Disciplinary Hearing Officer] is bound by the original sanction(s), except where the remand is made specifically because of the sanction....
This language has no bearing on Blum's appeal because there was no remand directed regarding Blum's disciplinary conviction. Rather, his disciplinary conviction on February 12, 1998 was reheard anew on May 5.

*2 Blum's second claim alleges a violation of due process under Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), because his May 5 rehearing was not held within a reasonable time after it was ordered on March 31, and a violation of due process under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), because between March 31 and May 5, prison officials continued to house him in harsh, disciplinary segregation.2

2 Blum also refers to this type of segregation as "punitive" confinement or detention.

In Hewitt, the Court held that while a prisoner has no right under the Due Process Clause to remain within the general population, id. at 468, the state of Pennsylvania had created a protected liberty interest through its prison regulations to engage in an "informal, nonadversary review of the information supporting [the prisoner's] administrative confinement... within a reasonable time after confining him to administrative segregation, " id. at 472. However, the Court concluded that the prisoner received all the process due, in part because his hearing took place five days after transfer to administrative segregation. Id. at 477. Blum compares his case to Hewitt and asserts a due process violation occurred because prison officials violated regulations in holding his rehearing nearly five weeks after it was ordered.3

3 We reject Blum's conclusory assertion that we should somehow infer that the result in his rehearing was prejudiced by the fact it was not held until May 5th or by the fact that he had allegedly been "predesignated" to the federal prison in Florence, Colorado. (Aplt.Br. at 11.)

The error in this argument, besides the fact that the Pennsylvania regulations at issue in Hewitt have no relevance to Blum's federal incarceration in Kansas, is that the Supreme Court itself no longer follows the Hewitt methodology to determine whether regulations create liberty interests protected by the Due Process Clause. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Court stated:

States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek [ v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)] (transfer to mental hospital), and Washington [ v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)] (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

*3 Id. at 483-84 (other internal citation omitted). In Sandin, "the Court held that the plaintiff's discipline in segregated confinement was not the sort of atypical, significant deprivation that would give rise to a liberty interest entitled to due process protection." Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir.1996)."To reach this conclusion, the Court carefully examined the specific conditions of the prisoner's confinement. The Court determined that the prisoner's conditions essentially mirrored those conditions imposed upon inmates in administrative segregation and protective custody, ' so the prisoner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.'" Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 808-09 (10th Cir.1999) (quoting Sandin ).

In Perkins, this court reversed a district court dismissal of a prisoner's due process claim under Sandin where the prisoner alleged that he was wrongfully confined to an eight-foot by fourteen-foot concrete cell for twenty-three and one-half hours a day; was permitted to leave his cell for thirty minutes a day to take a shower, but, when he left his cell, was required to wear a face mask covering his entire head; and was not permitted to exercise outside his cell for over a year. Id. at 809. Unlike the prisoner in Perkins, here, Blum has alleged no facts to show that his confinement presented the type of atypical, significant deprivation that would implicate a liberty interest. Blum alleges that his disciplinary segregation left him without "store privileges, radio, phone calls, etc. that other inmates just being held in segregation had the privileges of, " and that he wrongfully endured mental stress for being punished for an offense "that was fabricated against" him. (Aplt.Br. at 10.) Though mental stress and the loss of benefits complained of may be difficult, we conclude that such conditions are not different in such degree and duration as compared with "the ordinary incidents of prison life" to be a protected liberty interest under the Due Process Clause. See Sandin, 515 U.S. at 484; see also Hewitt, 459 U.S. at 467 ("[L]awfully incarcerated persons retain only a narrow range of protected liberty interests... [O]ur decisions have consistently refused to recognize more than the most basic liberty interests in prisoners."); Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994) ("Changing an inmate's prison classification ordinarily does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison.").

*4 Blum's third claim alleges interference with and denial of the constitutional right of access to the courts and a First Amendment right to petition the government because the charges levied against him that warranted a disciplinary hearing were supposedly "fabricated" by the investigating officer in retaliation for Blum's prior filing of grievances in regards to his placement in the prison's special housing unit. (Aplt.Br. at 12.). We reject this argument, as the district court below did, because even if an officer were to have filed disciplinary charges against a prisoner for retaliatory purposes, that reason by itself does not provide a basis for this court on habeas review to expunge Blum's underlying disciplinary conviction.4

4 To the extent that Blum's characterization of the charges against him as "fabricated" is a challenge to the sufficiency of the evidence, after reviewing the record, we find that there was sufficient evidence at the May 5 rehearing to support a conviction. Most compelling was the information provided by two confidential sources that detailed the contraband items seized despite no opportunity to observe the items once they were detected by the prison staff. (App.Att. 15.)

Blum also alleges his due process rights were violated because he was denied a purported mandatory right under 28 C.F.R. § 40.7 to appeal to the BOP general counsel the regional director's decision to rehear, instead of dismiss outright, the disciplinary charge. 28 C.F.R. § 40.7 is contained within the Minimum Standards for Inmate Grievance Procedures, regulations authorized by 42 U.S.C. § 1997e(b), which is part of the Prison Litigation Reform Act of 1995. In relevant parts, 28 C.F.R. § 40.7 provides:

(d) Reasoned, written responses. Each grievance [filed by an inmate] shall be answered in writing at each level of decision and review. The response shall state the reasons for the decision reached and shall include a statement that the inmate is entitled to further review, if such is available, and shall contain simple directions for obtaining such review.
(e) Fixed time limits. Responses shall be made within fixed time limits at each level of decision. Time limits may vary between institutions, but expeditious processing of grievances at each level of decision is essential to prevent grievance from becoming moot. Unless the grievant has been notified of an extension of time for a response, expiration of a time limit at any stage of the process shall entitle the grievant to move to the next stage of the process. In all instances grievances must be processed from initiation to final disposition within 180 days, inclusive of any extensions.
(f) Review. The grievant shall be entitled to review by a person or other entity, not under the institution's supervision or control, of the disposition of all grievances, including alleged reprisals by an employee against an inmate. A request for review shall be allowed automatically without interference by administrators or employees of the institution and such review shall be conducted without influence or interference by administrators or employees of the institution.

*5 The district court rejected Blum's due process argument premised on these regulations "because Mr. Blum does not allege that he was denied any of the process to which he is entitled pursuant to Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)...."5 However, Wolff does not necessarily dispose of Blum's claim, because Wolff only addressed (as is relevant here) whether certain statutes and regulations, which were complied with, violated the Due Process Clause. Wolff did not address whether a due process claim arises when an agency violates its own regulations. See Mitchell v. Maynard, 80 F.3d 1433, 1444-45 (10th Cir.1996) (analyzing under Wolff; prisoner's claim that disciplinary hearing violated due process because unreliable evidence was admitted; separately analyzing under Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), prisoner's claim that disciplinary hearing violated due process because defendants failed to follow their own established policy of banning staff members directly involved in the disciplinary case from being the disciplinary officer because "a fundamental requirement of due process is the opportunity to be heard"); see also Caldwell v. Miller, 790 F.2d 589, 609-10 (7th Cir.1986) ("An agency must conform its actions to the procedures that it has adopted. An inmate, too, has the right to expect prison officials to follow its policies and regulations.") (internal citations omitted).

5 To meet the standards of due process in a disciplinary proceeding under Wolff
the inmate must receive: (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 v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); see also Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir.1996)." If there is some evidence to support the disciplinary committee's decision... then the requirements of procedural due process have been met." Id.

Nevertheless, we dismiss because even accepting Blum's allegations as true, there has been no violation of federal regulations. Under the regulations' plain language, a prisoner's claim is only entitled to review "by a person... not under the institution's supervision or control."28 C.F.R. § 40.7(f). Blum's claim was reviewed by the BOP regional director, and Blum is only arguing on appeal that the BOP General Counsel should also have reviewed his claim. Since the BOP General Counsel and the Regional Director are equally independent from the local federal prison, Blum received one level of independent review, which is all that § 40.7(f) requires. Blum does not allege, nor does the record support, that the Regional Director was, and the General Counsel was not, under Blum's prison's "supervision or control." Accordingly, the defendants complied with federal regulations in its handling of Blum's grievance, and no due process violation thereby arises.

*6 Blum also alleges interference with and denial of the constitutional right of access to the courts because he, once again, allegedly was denied his mandatory right under 28 C.F.R. § 40.7 to appeal to the BOP general counsel the regional director's decision to rehear, instead of dismiss outright, the disciplinary charge. According to Blum, though he had appealed the regional director's rehearing order, a rehearing was held despite the absence of any resolution of his intervening appeal to the BOP general counsel. Blum contends that under federal regulations, once he made his appeal to the BOP general counsel, "no further action by prison officials were allowed."(Aplt.Br. at 13.) The district court rejected this claim on jurisdictional grounds, finding in part that Blum had not alleged any "actual injury" in his ability pursue a habeas petition. We agree.

An inmate alleging a violation of constitutional access to the courts "must show actual injury." Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996) (per curiam) (interpreting Lewis ). For example, an inmate cannot bring a constitutional access to the court claim simply because that person's prison law library is subpar. See Lewis, 518 U.S. at 351. Rather, such an inmate "must go one step further and demonstrate that the alleged shortcomings in the library... hindered his efforts to pursue a legal claim." Id. ; see also id. (stating that healthy inmate in a prison cannot claim constitutional violation because of inadequacy of the prison infirmary). Here, Blum has failed to show how an error, if any, in holding the disciplinary rehearing before resolution of his appeal to the BOP general counsel "hindered his efforts to pursue a legal claim" in the courts. Therefore, Blum has not suffered an actual injury from the alleged violation of internal grievance procedures, and his constitutional access to the courts claim was properly dismissed below. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.1990); ("[A]n isolated incident, without any evidence of improper motive or resulting interference with [the prisoner's] right to... access to the courts, does not give rise to a constitutional violation.").

Blum's fourth claim specifically alleges a denial of procedural due process under Wolff v. McDonnell . In particular, Blum contends that he was denied advance written notice of the May 5 rehearing, even though he received written notice of the original February 12 hearing, and even though he received oral notice of the rehearing. Blum argues that he was entitled to a written notice for the rehearing "due to changes in the charge or evidence."(Aplt.Br. at 22.) However, the record belies any suggestion that the charges against Blum changed at the rehearing, and, as the district court explained, under Wolff Blum is entitled to advance written notice of the disciplinary charges against him, not to written notice of the evidence that will be used at the disciplinary hearing.

*7 Blum's fifth and final claim also alleges a denial of due process because the disciplinary hearing officer did not assess whether admitted evidence from two confidential informants was reliable. For the same reasons well-articulated below, we disagree. The reliability of the confidential informants was established by "some evidence" in the record, as the written statement of reasons indicates that "the confidential informants had corroborating statements which added to their credibility."

The appeal is DISMISSED.

The mandate shall issue forthwith.

Attorneys and Law Firms

*902 Avid K. Jenner, Limon Correctional Facility, Limon, CO, for Plaintiff-Appellant.

James McDaniel, Limon Correctional Facility, Limon, CO, pro se.

Michael Cusick, Limon Correctional Facility, Limon, CO, pro se.

Keith Courville, Limon Correctional Facility, Limon, CO, pro se.

Ronald Frazier, Limon Correctional Facility, Limon, CO, pro se.

Edward T. Farry, Farry and Rector, L.L.P., Colorado Springs, CO, John A. McDermott, Daniel B. Slater, McDermott Law Firm, Canon City, CO, for Defendants-Appellees.

Before SEYMOUR, HARTZ and McCONNELL, Circuit Judges.

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

McCONNELL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument.

Plaintiff David Jenner, a state prisoner proceeding pro se, appeals the district court's dismissal with prejudice of his civil rights claims filed under 42 U.S.C. §§ 1983 and 1985. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM the judgment of the district court.

I. Background and Procedural History

Mr. Jenner and several other inmates at the Limon Correctional Facility in Colorado initiated this civil rights action alleging various violations of their constitutional rights. The inmates' allegations stem from their participation in a substance abuse program called the Therapeutic Community Program ("the Program"), which is conducted by Addiction Recovery Programs (ARP). The named Defendants are either employees of ARP or prison officials. The inmates allege that the Defendants violated their First, Fifth, Eighth, and Fourteenth Amendment rights.

The Defendants filed motions to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The district court referred the matter to a magistrate judge who recommended that the Defendants' motions be granted. On August 21, 2003, the district court issued an order adopting the magistrate judge's recommendation with one exception: the district court allowed. *903 the Plaintiff's to amend their complaint as to their fourth claim, which was based on alleged retaliation against the Plaintiff's in violation of their right of access to the courts. The district court dismissed all of the Plaintiffs' remaining claims with prejudice.

Mr. Jenner filed a motion requesting certification under Fed.R.Civ.P. 54(b). The district court determined that Mr. Jenner was requesting a final judgment so that he could proceed on appeal. The district court construed his motion as a request for dismissal with prejudice and granted his request. At the same time, the district court dismissed without prejudice the remaining Plaintiffs' fourth claim. No Plaintiff filed an amended complaint within the deadline set by the district court. The Order of August 21, 2003, is therefore a final order. Only Mr. Jenner appeals.

II. Standard of Review

We review the district court's grant of a motion to dismiss under Rule 12(b)(6) de novo, applying the same standards as the district court. Montgomery v. City of Ardmore, 365 F.3d 926, 935 (10th Cir.2004). We take all well-pleaded factual allegations in the complaint as true and view them in the light most favorable to the non-movant. Id. Dismissal is appropriate only where it is apparent that the plaintiff can prove no set of facts in support of his claim. Id.

III. Discussion

A.

Mr. Jenner alleges that the Program is "secular humanistic in nature and establishes a religion.'" Aplt.Br. 13-14. The magistrate judge concluded that the Program is not a religion and thus participation in the Program does not implicate the First Amendment's Establishment Clause. R & R 10. Before the district court, Mr. Jenner did not object to the determination that the Program is not a religion. Order 3. That issue is therefore waived. Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991).

B.

Mr. Jenner's second claim is that his participation in the Program violates his Fifth Amendment right against self-incrimination. Mr. Jenner states that the Program "requires disclosure of information about the... crime" while he is currently appealing his conviction. Aplt.Br. 15. Mr. Jenner contends that the threatened loss of earned time credit and visitation privileges for failure to participate forces him to disclose the information.

The Supreme Court has addressed the necessary limitations on constitutional rights that result from lawful incarceration:

A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.

McKune v. Lile, 536 U.S. 24, 37-38, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). The adverse consequences (loss of earned time credits and visitation privileges) that Mr. Jenner would face for not disclosing information are related to the Program's objective of rehabilitation and do not constitute atypical and significant hardships. "[T]he Constitution... does not guarantee good-time credit for satisfactory behavior while in prison." Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Mr. Jenner's choice not to disclose information for fear of self-incrimination while *904 his appeal is pending may indeed result in the loss of certain rewards but "the government need not make the exercise of the Fifth Amendment privilege cost free." McKune, 536 U.S. at 41. "The criminal process... is replete with situations requiring the making of difficult judgments.... Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Id. (quoting McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971)). Mr. Jenner has failed to state a claim for relief under the Fifth Amendment.

C.

Mr. Jenner claims that his Eighth Amendment right not to be subject to cruel and unusual punishments has been violated. Mr. Jenner alleges that due to his participation in the Program, general population inmates have tampered with his food and laundry, he has been labeled a "rat, " and he has faced retaliation from inmates.

Mr. Jenner alleges food and laundry tampering by general population inmates. The Eighth Amendment requires that "prisoners receive food that is adequate to maintain health." LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.1993). Mr. Jenner has not alleged in what manner the general population inmates tampered with his food or that the adulterated food was dangerous to his health. Likewise, Mr. Jenner's summary allegation of laundry tampering does not specify facts to support his claim.

Mr. Jenner alleges that the Program requires inmates to "inform on other inmates in the program for any' behavior which is outside the [Program] guidelines." Aplt.Br. 19. Mr. Jenner contends that he has been labeled a "rat" and a "snitch" and therefore is the target of physical confrontation by other general population inmates. Where an Eighth Amendment claim is based upon conditions of confinement, an inmate must demonstrate that the deprivation suffered was "objectively sufficiently serious, '" and that the defendant had a "sufficiently culpable state of mind" or was "deliberate[ly] indifferen[t]" to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1991) (quoting Wilson v. Seiter, 501 U.S. 294, 297-98, 302-03, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). To prove a violation of a prison official's constitutional duty to protect inmates from violence at the hands of other inmates, a plaintiff must establish that he is incarcerated under conditions posing a substantial risk of serious harm and that the defendants were deliberately indifferent to his need for protection. Id. A defendant acts with deliberate indifference if his or her conduct "disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Berry v. City of Muskogee, 900 F.2d 1489, 1496 (10th Cir.1990).

Mr. Jenner does not allege facts to support a claim that the Defendants were aware of any potential harm that might befall him, let alone that the Defendants had culpable states of mind or were deliberately indifferent. Furthermore, Mr. Jenner does not allege facts to support a claim that the threat of retaliation was imminent. An "idle threat" of impending physical harm that is not carried out will not suffice to state an Eighth Amendment claim. Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir.1992). Mr. Jenner has failed to state a claim for relief under the Eighth Amendment.

D.

Mr. Jenner claims various Fourteenth Amendment violations and improper termination from prison employment. In a civil rights action such as this, a plaintiff *905 must allege two essential elements: that the complained-of conduct (1) was committed by a person acting under color of state law, and (2) deprived the plaintiff of rights, privileges, or immunities secured by the Constitution and laws of the United States. 42 U.S.C. § 1983.

Mr. Jenner contends that his due process rights were violated by impromptu hearings known as "staffing" sessions conducted by Program staff to address an inmate's violation of a Program policy or rule. If a prisoner is found to be in violation of a Program policy or rule, he faces loss of earned time, parole eligibility, or visitation privileges. Specifically, Mr. Jenner alleges that he has received several "staffings" for which he was given no advance notice and during which he was not allowed to be heard. Mr. Jenner argues that this lack of due process violates the Fourteenth Amendment.

When a plaintiff claims denial of due process, the court inquires into the nature of the individual's claimed interest "to determine whether due process requirements apply in the first place." Board of. v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). "The Due Process clause standing alone offers prisoners only a narrow range of protected liberty interests.'" Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994) (quoting Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). Mr. Jenner does not have a protected liberty interest in visitation privileges absent any state law that establishes this interest. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Mr. Jenner does not allege an entitlement under state law to visitation privileges. Neither does he have a protected liberty interest in a particular parole hearing eligibility date. Chambers v. Colorado Department of Corrections, 205 F.3d 1237, 1242 (10th Cir.2000). Mr. Jenner likewise does not have a protected liberty interest in earned time credits. The magistrate judge correctly noted that, because the Colorado statutes grant discretion to prison officials to determine whether a prisoner shall qualify for earned time credits based on behavior, those statutes do not create a protected liberty interest.

Mr. Jenner alleges that he was improperly terminated from his prison employment in violation of applicable DOC regulations after commencing the Program. He claims that this termination violates the Due Process Clause. However, Mr. Jenner does not have a constitutional right to a particular prison job. See Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir.1996). Therefore, Mr. Jenner has failed to state a claim for relief under the Fourteenth Amendment in relation to the termination of his prison employment and loss of various privileges.

Mr. Jenner further alleges that because he has sought access to the federal courts, he has been discriminated against by Program administrators in violation of the Fourteenth Amendment Equal Protection Clause. Mr. Jenner contends that those inmates who have not sought access to the courts have been released from the Program while he has been forced to remain, thereby creating a suspect class. Such a suspect class has never been recognized. Because Mr. Jenner is not a member of a protected class and has not asserted impairment of a fundamental right, he must allege facts sufficient to overcome the presumption of government rationality of the alleged discrimination. Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir.1995). A plaintiff cannot overcome this presumption with allegations that are merely conclusory. Id. at 972. Mr. Jenner has not presented facts, but only conclusory allegations, and therefore cannot overcome the presumption of government rationality. *906 Mr. Jenner has failed to state a claim for relief under the Equal Protection Clause of the Fourteenth Amendment.

For the foregoing reasons, we AFFIRM the judgment of the United States District Court for the District of Colorado.

Attorneys and Law Firms

Jason Michael Dunford, Dublin, VA, pro se.

MEMORANDUM OPINION

GLEN E. CONRAD, District Judge.

*1 Plaintiff Jason Michael Dunford, an inmate at the New River Valley Regional Jail ("NRVRJ") in Dublin, Virginia, filed this pro se complaint pursuant to 42 U.S.C. § 1983, with jurisdiction vested under 28 U.S.C. § 1343, alleging that defendants violated his constitutional rights by imposing sanctions against him that were "not supported by enough evidence" and "more severe than for any other violation... in [NRVRJ's] inmate handbook. "Plaintiff does not specify the remedies he seeks; however, the complaint includes a document that the court has construed and docketed as a motion [docket no. 5] seeking a temporary restraining order. Upon review of the record, the court concludes that the plaintiff has not stated a claim upon which relief may be granted. Therefore, the court will dismiss the complaint pursuant to 28 U.S.C. § 1915A(b)(1)1, and the court will deny plaintiff's request for a temporary restraining order.

1 Section 1915A(b)(1) provides that the court shall dismiss a complaint as soon as practicable if the court determines that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.

I. Factual Summary2

2 The court's summary is taken from plaintiff's complaint and documents submitted in support thereof.

On December 4, 2007, tattooing needles were found hidden in plaintiff's property during a search of plaintiff's cell. An inmate violation report was prepared, charging plaintiff with the offense of tattooing. A copy of the inmate violation report was given to plaintiff on December 5, 2007. A hearing was conducted in the matter on December 9, 2007, and plaintiff was found guilty of the charge.3 Plaintiff was subjected to the suspension of his visitation privileges for 90 days; additionally, plaintiff was placed in disciplinary segregation for 15 days, which were to run concurrent to the suspension of his visitation privileges.

3 Plaintiff signed and dated the inmate violation report. Plaintiff indicated his wish to appeal the decision of the hearing officer, and has submitted documentation of his appeal, indicating that he has exhausted the available administrative remedies in this matter.

The court will introduce additional facts as necessary in its analysis.

II. Standard of Review

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the deprivation of that right was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A complaint fails to state a claim upon which relief can be granted when no relief is available under any set of facts that could be proved consistent with the allegations of the complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); see also Bell Atlantic Corp. v. Twombly, 550 U.S. ___, slip op. at 8 (2007) (while the complaint need not provide detailed factual allegations, the basis for relief in the complaint must state "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"; the Court specifically explained, id., slip op. at 18-24, that the Twombly analysis does not run counter to Swierkiewicz or impose a heightened pleading standard); Teachers' Retirement System of La. v. Hunter, 477 F.3d 162, 170 (4th Cir.2007) (citing Swierkiewicz, 534 U.S. at 514, and stating that "a court may dismiss a complaint [for failure to state a claim upon which relief may be granted] only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations").

III. Analysis

*2 Plaintiff contends that "it is impermissible to make up a sanction such as 15 days seg [sic] as well as 90 days [sic] loss of visitation" for his offense, given that the inmate handbook prescribes sanctions for "the most severe offenses" that, in plaintiff's view, are less punitive than the sanctions he received in the instant matter.4 Plaintiff states that he is "not contesting [his] guilt, " but that he is "contesting the legality of the sanctions which were imposed."5 Construing plaintiff's complaint liberally, the court has determined that plaintiff alleges that his civil rights were violated by the following: his placement in administrative segregation; the 90 day suspension of his visitation privileges; and the prison's failure to follow and apply the policies promulgated in the inmate handbook.

4 Plaintiff alleges that "[t]he inmate handbook states that [for] the most severe offenses, " such as "assault on staff, " 15 days of segregation is a "mandatory" sanction, and that the suspension of privileges, such as visitation, " may be suspended for a maximum of 30 days per offense." He further alleges that an inmate could receive a less punitive sanction for abducting "or even sexually assaulting another inmate or staff."
5 Plaintiff adds that he should not have been charged with the offense of tattooing, but "should have been charged with possession of contraband" because he was in possession of a staple, out of which the tattooing equipment had been fashioned.
A prison administrator's response to one of plaintiff's grievances indicates that an "order posted by the Superintendent clearly state[d] that effective 10/01/07... the charge described in the handbook would change and that the sanctions for this charge would change" and that "the posted order supersedes the [description of the charge and sanction] printed in the handbook." On December 21, 2007, in response to plaintiff's final appeal in the matter, Superintendent McPeak repeated that "sanctions for rule violations may be changed as necessary." Superintendent McPeak added that "[t]attooing is dangerous and illegal[, ] especially in this environment."

A. Administrative Segregation

An inmate's liberty "interests will be generally limited to the freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Changes "in a prisoner's location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his original sentence to prison." Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.1991). Furthermore, such changes are necessarily functions of prison management that must be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively. Id. Courts have held that placement and longterm detention in segregated confinement under Virginia's prison regulations does not give rise to any constitutionally protected liberty interest under Sandin. See, e.g. DeBlasio v. Johnson, 128 F.Supp.2d 315, 328-29 (E.D.Va.2000), aff'd by Madison v. Johnson, 12 Fed.App'x. 149 (4th Cir.2001) (unpublished). Thus, plaintiff has no due process claim concerning his confinement in segregation pursuant to disciplinary charges.6 Moreover, as he fails to allege that receiving 15 days in segregated confinement has caused him any significant physical or mental health injury, he fails to state any claim of cruel and unusual punishment in violation of the Eighth Amendment. See Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th Cir.1993). Accordingly, this claim will be dismissed, pursuant to 28 U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief may be granted.

6 When an inmate demonstrates that a liberty interest is at stake or that the inmate is faced with loss of statutory good-time credits or solitary confinement, some limited federal due process protections apply. Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974). Wolff outlines these due process guarantees as follows: (1) advanced written notice of the claimed violation; (2) disclosure of evidence against the defender; (3) the right to confront and cross-examine witnesses (unless the hearing officer finds good cause not to allow confrontation); (4) a neutral detached hearing body; and (5) a written statement of the finder of facts as to the evidence relied upon and the reasons for the disciplinary action taken Id. at 564-71.In addition, there must be "some evidence" to support the disciplinary board's conclusions. Superintendent v. Hill, 472 U.S. 445, 447 (1985).
Here, plaintiff is entitled to no federal due process claim because the discipline imposed on plaintiff did not subject him to the loss of good-time credits or solitary confinement, Wolff, 418 U.S. at 557-58, and, as the court will discuss elsewhere in its opinion, he had no protected liberty interest in avoiding 90 days' loss of visitation privileges. Applying Sandin, it is clear that the loss of visitation privileges is "within the normal limits or range of custody which the conviction has authorized the [prison authorities] to impose, " id., 515 U.S. at 478, and plaintiff experienced no atypical hardship. Thus, there is no federal right to enhanced procedural protections at issue here.
Nonetheless, the court notes that the record suggests that plaintiff received the procedural guarantees of Wolff, 418 U.S. at 564-71, and plaintiff does not allege that he failed to receive these protections. The record further suggests that there is "some evidence" to support the IHO's conclusions. Superintendent v. Hill, 472 U.S. at 447. Federal courts will not review the accuracy of a disciplinary committee's finding of fact. Kelly v. Cooper, 502 F.Supp. 1371, 1376 (E.D.Va.1980). Such findings of fact will only be disturbed if they are unsupported by any evidence or are wholly arbitrary and capricious. Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.1981); see also Chevron v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984) (an agency's decisions are not to be second-guessed by federal courts unless they are arbitrary, capricious, or manifestly contrary to statute).

B. Visitation Privileges

Neither prisoners nor would-be visitors have a constitutional right to visitation. White v. Keller, 438 F.Supp. 110, 115 (D.Md.1977) (but leaving open the possibility that a permanent ban on all visitation could implicate the Eighth Amendment), aff'd, 588 F.2d 913 (4th Cir.1978); see also Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461, (1989) (finding no right to visitation guaranteed by the Due Process Clause). In sum, visitation is a privilege, not a constitutional right. Wright v. Vitale, 937 F.2d 604 (4th Cir.1991). Accordingly, plaintiff has failed to state a claim under § 1983 regarding the 90-day suspension of his visitation privileges, and this claim will be dismissed, pursuant to 28 U.S.C. § 1915A(b) (1), for failure to state a claim upon which relief may be granted.

C. Policy Violations

*3 To the extent plaintiff alleges that defendant violated his constitutional rights by failing to follow and apply the policies promulgated in the inmate handbook7, the failure of a state to meet the requirement of a state-created procedural rule does not rise to the level of a violation of the due process clause. Riccio v. County of Fairfax, 907 F.2d 1459, 1469 (4th Cir.1990) (holding that "[i]f state law grants more procedural rights than the Constitution would otherwise require, a state's failure to abide by that law is not a federal due process issue").8 Accordingly, this claim will be dismissed, pursuant to 28 U.S.C. § 1915A(b) (1), for failure to state a claim upon which relief may be granted.9

7 Again, the court notes that a prison administrator, in response to one of plaintiff's grievances, informed plaintiff that an "order posted by the Superintendent clearly state[d] that effective 10/01/07... the charge described in the handbook would change and that the sanctions for this charge would change" and that "the posted order supersedes the [description of the charge and sanction] printed in the handbook." And, on December 21, 2007, in response to plaintiff's final appeal in the matter, Superintendent McPeak repeated that "sanctions for rule violations may be changed as necessary."
8 To the extent plaintiff's claim could be construed as alleging a violation of the Equal Protection Clause of the Fourteenth Amendment, plaintiff has not alleged that similarly situated inmates, i.e., inmates found guilty of the offense of tattooing, have been treated differently from him. Plaintiff's claim does not implicate a burden on a fundamental right, and prisoners are not a suspect class. See Moss v. Clark, 886 F.2d 686, 690 (4th Cir.1989). Even where similarly situated persons are treated differently, a state classification "that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for [it]." FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993); see also McGowan v. Maryland, 366 U.S. 420, 426 (1961) (noting that such classifications "will not be set aside if any state of facts reasonably may be conceived to justify it").
9 To the extent plaintiff believes he has an actionable claim against the defendants under state law, the court declines to exercise supplemental jurisdiction over such claims, pursuant to 28 U.S.C. § 1367(c)(3), which provides that "district courts may decline to exercise supplemental jurisdiction over a claim... if... the district court has dismissed all claims over which it has original jurisdiction...."

IV. Temporary Restraining Order

Plaintiff requests that the court require NRVRJ and Superintendent McPeak "to cease and desist any actions or punishment towards me until the proceedings of this complaint be either remedied or dissmissed [sic]." A district court should issue preliminary injunctive relief only sparingly, using the "balance of hardship" test. In applying this test, the court should consider four factors: 1) whether the plaintiff will suffer immediate and irreparable harm if the relief is not granted; 2) the likelihood of harm to the defendants if relief is granted; 3) the likelihood that plaintiff will eventually succeed on the merits; and 4) whether the public interest lies with granting the relief. Wetzel v. Edwards, 635 F.2d 283, 286-87 (4th Cir.1980) (citing Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manufacturing, Co., 550 F.2d 189, 195 (4th Cir.1977)). Functions of prison management must be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively. Gaston, 946 F.2d at 343. Courts should grant preliminary injunctive relief involving the management of prisons only under exceptional and compelling circumstances. Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir.1994). Without a showing that plaintiff will suffer imminent, irreparable harm, the court cannot grant interlocutory injunctive relief. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir.1991). The plaintiff must show that the irreparable harm he faces in the absence of relief is "neither remote nor speculative, but actual and imminent." Direx Israel, Ltd. v. Breakthrough Medical Group, 952 F.2d 802, 812 (4th Cir.1991) (citation omitted). Given that plaintiff's allegations do not state any constitutional claim, plaintiff has not established a likelihood that he will eventually succeed on the merits or that the public interest lies with granting the relief. Plaintiff has not alleged facts indicating that he will suffer immediate and irreparable harm in the absence of interlocutory injunctive relief of some kind. Accordingly, plaintiff's request for injunctive relief does not satisfy the "balance of hardships" test, and must be denied.

*4 Insofar as plaintiff's request for injunctive relief has been construed and docketed as a request for a temporary restraining order, such orders are issued only rarely, when the movant proves that he will suffer injury if relief is not granted before the adverse party could be notified and have opportunity to respond. See Fed.R.Civ.P. 65(b). Such an order would be effective only until such time as a hearing on a preliminary injunction could be arranged. As it is clear at this juncture that plaintiff has stated no claim of constitutional significance, and is not entitled to a preliminary injunction, the court finds no basis upon which to grant him a temporary restraining order.

V. Conclusion

Based on the foregoing, the court finds that plaintiff has not presented any claims that constitute a violation of his constitutional rights. Therefore, the court will dismiss the complaint pursuant to 28 U.S.C. § 1915A(b)(1), and the court will deny plaintiff's request for a temporary restraining order.10

10 Federal law provides that a prisoner may not bring a civil action without complete prepayment of the appropriate filing fee if the prisoner has brought, on three or more occasions, an action or appeal in a federal court that was dismissed as frivolous, as malicious, or for failure to state a claim upon which relief may be granted, unless the prisoner is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Plaintiff is hereby advised that this dismissal constitutes a "strike" under § 1915(g). Plaintiff is further advised that he may appeal this decision pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal with this court within 30 days of the date of entry of this Order, or within such extended period as the court may grant pursuant to Rule 4(a)(5).

The Clerk is directed to send copies of this memorandum opinion and accompanying order to plaintiff.

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT*

* After examining appellant's brief and the 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) and 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3.

EBEL.

*1 Plaintiff-Appellant Curtis Lee Watson ("Watson"), a prisoner at the correctional facility at Torrance County, New Mexico, filed the present action in federal district court against Defendants-Appellees seeking injunctive relief Watson specifically alleged that a number of his constitutional rights had been violated when Defendants assigned him a maximum security classification and placed him in segregation and lockdown upon his arrival at Torrance on April 23, 1999. ( See Doc. 1, 3.) Watson had been transferred to Torrance from an Ohio facility. ( See id. ) Watson also alleged in the complaint that: (1) he had been denied access to legal materials; (2) the Corrections Corporation of America had breached a settlement agreement reached in another, unrelated suit; and (3) he had not received adequate medical care for an injury to his ankle. ( See id. )

The district court dismissed this case sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and Fed.R.Civ.P. 12(b)(6). ( See Doc. 8.) The court found that the circumstances of Watson's incarceration were temporary and only in effect while formal security classification proceedings were pending. ( See id. at 2.) The court dismissed Watson's claims related to the circumstances of his confinement on the ground that he had no protected liberty interest in his security classification. ( See id. ) The court went on to dismiss Watson's claim that he was denied access to legal materials because Watson had failed to alleged any relevant actual injury. ( See id. ) Finding that Watson's claims arising under federal law lacked merit, the district court declined to exercise supplemental jurisdiction over Watson's state law claim concerning the breach of the settlement agreement pursuant to 28 U.S.C. § 1367(a) & (c). ( See id. at 2-3.)

We review the district court's decision to dismiss a complaint pursuant to § 1915(e)(2) (B)(i) for an abuse of discretion, see Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir.1997), and § 1915(e)(2)(B)(ii) de novo, see Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir.1999). After thorough consideration of Watson's claims, we find that the district court properly dismissed the claims relating to Watson's security status and his access to legal materials for substantially the same reasons set forth in the order of the district court. We also find that Watson's claim that he was denied adequate medical care for the injury to his ankle is without merit because he has failed to state a cognizable Eighth Amendment claim by alleging "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Because the district court properly dismissed Watson's federal law claims, we conclude that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over Watson's state law claim concerning breach of the settlement agreement. See Smith v. Enid, 149 F.3d 1151, 1156 (10th Cir.1998) (explaining that we review a district court's decision to dismiss supplemental state law claims pursuant to § 1367(c) under an abuse of discretion standard). As a final matter, this court wishes to remind Mr. Watson that he has an ongoing obligation, pursuant to an order of this court dated October 18, 1999, to make partial payments toward the $105 in court costs and fees assessed in connection with this suit. AFFIRMED.

*2 The mandate shall issue forthwith.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of Tenth Cir. R. 36.3.

*1 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Paul Luna Vasquez, appearing pro se and in forma pauperis, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim upon which relief can be granted. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Plaintiff is an inmate in the Colorado state penal system. He filed this § 1983 action against the executive director and various employees of the Colorado Department of Corrections. Plaintiff alleged that, while he was incarcerated at the Centennial Correctional Facility, he was convicted of a discipline violation and sanctioned with 10 days of punitive segregation and 15 days of loss of good time. According to plaintiff, there were numerous constitutional deficiencies underlying the conviction and sanction, including lack of probable cause for the hearing, as well as procedural defects. He further alleged that, while confined in punitive segregation, he was deprived of legal materials and personal property was taken without being inventoried in his presence. He claimed the lighting, ventilation, recreation area, and dining area in segregation were inadequate. He also claimed inmates were reluctant to bring court actions against prison officials for fear of retaliation.

A magistrate judge concluded (1) the supervisory officials named as defendants could not be held liable under § 1983 merely by virtue of their capacities; (2) plaintiff had not suffered an atypical and significant hardship, nor were the basic conditions of his sentence affected; (3) neither plaintiff's placement in segregation nor his loss of good time implicated a protected liberty interest; (4) defendant Kathleen Baxter did not violate plaintiff's rights by refusing to copy an exhibit for plaintiff; (5) plaintiff failed to demonstrate any injuries arising out of defendants' alleged limitations on his legal materials while in segregation; (6) plaintiff had no right to dictate how his property was inventoried or stored while in segregation; (7) plaintiff failed to demonstrate that the conditions in segregation were serious enough to rise to the level of constitutional violations; and (8) plaintiff failed to provide sufficient facts to support his allegation that inmates were retaliated against for filing lawsuits. The magistrate judge recommended that summary judgment be granted in favor of defendants.

Plaintiff filed a motion for extension of time to file objections to the magistrate judge's recommendation, which was granted. Plaintiff then filed a second motion for extension of time the day after the first extension expired. This motion was not ruled on by the district court. The district court issued a written order adopting the recommendation of the magistrate judge and granting summary judgment in favor of defendants. The court noted that plaintiff had failed to file specific written objections to the magistrate judge's recommendation. Nevertheless, the district court conducted a de novo review of the magistrate judge's findings and found that even if plaintiff had filed objections, summary judgment in favor of defendants would have been appropriate. Plaintiff then filed a third motion for extension of time to file objections. The district court did not rule on this motion.

*2 On appeal, plaintiff claims he attempted to file timely objections to the magistrate judge's recommendation, but was unable to do so prior to expiration of the first extension. In particular, plaintiff claims his objections were lost in the United States mail, and were eventually located and returned to him. He contends the district court erred by granting summary judgment in favor of defendants without the benefit of his objections.

We have reviewed plaintiff's objections (which were attached as an exhibit to his opening appellate brief) and find no basis for disturbing the district court's decision. As for the district court's implicit denial of plaintiff's second and third motions for extension of time, we find no abuse of discretion. See generally Buchanan v. Sherrill, 51 F.3d 227, 228-29 (10th Cir.1995).

We AFFIRM the order of the district court for substantially the same reasons set forth in its order of November 14, 1995. The mandate shall issue forthwith.

Attorneys and Law Firms

Glenn H. Gorton, Lawton, OK, pro se.

ORDER

STEPHEN P. FRIOT, District Judge.

*1 Plaintiff, a state prisoner appearing pro se whose pleadings are liberally construed, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while incarcerated at the Lawton Correctional Facility. Plaintiff has not objected to the June 23, 2009 Report and Recommendation of Magistrate Judge Bana Roberts. (Report at doc. no. 11.) In that Report, Magistrate Judge Roberts recommends that the complaint be dismissed upon filing and that the dismissal count as one strike pursuant to 28 U.S.C. § 1915(g). The Report also advises plaintiff that failure to make timely objection to the Report waives the right to appellate review of both factual and legal questions. No objection to the Report has been filed and no request for an extension of time within to file such an objection has been sought.

Having conducted its own review, and with there being no objection, the court finds that it agrees with the Report. It further finds that no purpose would be served by stating any further analysis here.

Accordingly, the Report and Recommendation of Magistrate Judge Roberts is ACCEPTED, ADOPTED and AFFIRMED in its entirety. This action is DISMISSED upon filing for failure to state a claim for which relief can be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). This dismissal counts as a strike and counts as a prior occasion pursuant to 28 U.S.C. § 1915(g) after plaintiff has exhausted or waived his right to appeal.

REPORT AND RECOMMENDATION

BANA ROBERTS, United States Magistrate Judge.

Plaintiff, a state prisoner appearing pro se, has filed this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while incarcerated at the Lawton Correctional Facility, ("LCF"), a private prison. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons set forth herein, it is recommended that the complaint be dismissed upon filing and that the dismissal count as one "strike" pursuant to 28 U.S.C. § 1915(g).

Plaintiff's Civil Rights Complaint

Rather than file this civil rights action on a form complaint, Plaintiff filed a handwritten three-page pleading titled "Motion of Denial of Federal Rules of Civil Procedure w/Brief in Support." [Doc. No. 1, hereinafter, "Complaint"]. Although the nature of Plaintiff's cause of action is not entirely clear, it is not necessary to require the filing of a form complaint because it appears Plaintiff primarily alleges that he is being denied access to certain legal materials. Complaint, p. 1. Plaintiff complains that Defendant Miller has rejected his grievances on this issue. Id., p. 2. Plaintiff seeks injunctive relief in the form of an order requiring LCF officials to provide a copy of the Federal Rules of Civil Procedure "in the complete format that it was published" in order to obtain "new case evidence... to try to show that Plaintiff did try to exhaust his administrative remedies before filing." Id., pp. 1-2.

Standard for Initial Screening

*2 Pursuant to 28 U.S.C. § 1915A and § 1915(e)(2)(B), the Court must review the amended complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. See also 42 U.S.C. § 1997e(c) (1). "Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 806 (10th Cir.1999). In determining whether dismissal is proper, the Court must accept the allegations of a complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. Id. If a complaint does not include "enough facts to state a claim to relief that is plausible on its face, " dismissal is proper. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969, 1974 (2007).

A pro se plaintiff's complaint should be broadly construed under this standard. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, this broad reading "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). See Twombly, 127 S.Ct. at 1964-65 ("[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.") (quotations and citations omitted); Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997) (courts "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf").

To state a claim under 42 U.S.C. § 1983, the plaintiff must allege the deprivation of a right "secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). As discussed below, Plaintiff cannot prevail in a § 1983 action against the named Defendant on the facts alleged. Further, because giving Plaintiff a further opportunity to amend would be futile, the complaint should be dismissed. See Hall, 935 F.2d at 1110.

Analysis

Access to the Courts Claim

Plaintiff states that there is no direct access to the prison law library or "state and federal statute lawbooks or dietary manuals or other legal reference materials and/or attorney addresses." Complaint, p. 1. Plaintiff alleges that he has requested and has been denied, even through the grievance system, access to a copy of the "Federal Rules of Civil Procedure as well as other items I need for court." Id. According to Plaintiff, the law library will only provide a copy of indexes for state and federal statutes. Id. Without identifying the case, Plaintiff states that he has previously made this request of the "district court" and was denied. Id., p. 2.

*3 This claim implicates the Fourteenth Amendment's Due Process Clause, which "guarantees state inmates the right to adequate, effective, and meaningful' access to the courts." Petrick v. Maynard, 11 F.3d 991, 994 (10th Cir.1993) (quoting Bounds v. Smith, 430 U.S. 817, 822 (1977)). However, even when court access is restricted by, for example, denial of access to legal materials or assistance, in order to state a claim, the prisoner must show prejudice or actual injury, from the defendant's actions. See Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir.1998); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996) ( per curiam ). Further, the prejudice must involve a hindrance to the plaintiff's pursuit of a claim challenging a conviction, sentence, or conditions of confinement. Lewis v. Casey, 518 U.S. 343, 355 (1996). Impairment of any other litigating capacity is "simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. See also Carper v. DeLand, 54 F.3d 613, 617 (10th Cir.1995) ("[A]n inmate's right of access does not require the state to supply legal assistance beyond the preparation of initial pleadings in a civil rights action regarding current confinement or a petition for a writ of habeas corpus."); Love v. Summit County, 776 F.2d 908, 914 (10th Cir.1985) ("The Supreme Court has never extended the Fourteenth Amendment due process claim based on access to the courts... to apply further than protecting the ability of an inmate to prepare a petition or complaint.").

In Cosco v. Uphoff, 195 F.3d 1221 (10th Cir.1999) ( per curiam ), eight state prisoners alleged that prison officials had denied them access to the courts in various ways, including restrictions on access to a law library. Id. at 1222. The Tenth Circuit Court of Appeals upheld dismissal of this claim noting that the plaintiff's "had merely set forth conclusory allegations of injury. There is no evidence that [prison officials] hindered [the plaintiffs'] efforts to pursue a legal claim." Id. at 1224. See also Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir.1981) ("Constitutional rights allegedly invaded, warranting an award of damages, must be specifically identified. Conclusory allegations will not suffice.").

Likewise, in the present case, Plaintiff has failed to set forth more than conclusory allegations. In his complaint, he simply states that he has a "new case" and that he has been denied adequate access to a law library or the Federal Rules of Civil Procedure. Although Plaintiff suggests that he requested the legal materials to provide evidence regarding exhaustion of administrative remedies, Plaintiff has failed to provide any further details or factual support to show prejudice or actual injury as a result of this alleged denial. Moreover, he has not indicated what type of litigation he has been unable to pursue. Thus, even if Plaintiff has suffered prejudice, it is impossible to determine if this prejudice is "one of the incidental consequences" of incarceration or the impairment of his constitutional right to challenge a previous conviction, sentence or his conditions of confinement. See Lewis, 518 U.S. at 351.

*4 Finally, Plaintiff's ability to file the present action undermines his contention that his access to the courts has been hindered by an inability to file an initial pleading in his "new case." See Carper, 54 F.3d at 617; Love, 776 F.3d at 914. Accordingly, the undersigned finds that Plaintiff's access to the courts claim should be dismissed without prejudice for failure to state a claim upon which relief can be granted.

To the extent Plaintiff attempts to raise a due process claim based on Defendant Miller's rejection of his request for a copy of the Federal Rules of Civil Procedure, Complaint, p. 2, such allegation fails to state a claim of constitutional dimension. Prison grievance procedures do not create a protected liberty interest and do not, therefore, implicate a prisoner's due process rights. See Murray v. Albany County Board of County Commissioners, No. 99-8025, 2000 WL 472842, *2 (10th Cir. Apr. 20, 2000) (unpublished)1 ("[P]rison grievance procedures do not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment.") (quoting Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993)); Anderson v. Colorado Dept. of Corrections, No. 98-1477, 1999 WL 387163, *2 (10th Cir. June 14, 1999) (unpublished) (holding that a state inmate's § 1983 "allegations relating to the requirements of the Department of Corrections grievance procedure do not support a due process claim because those procedures do not create any liberty interest in the incarcerated petitioner"). See also Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991) (holding that federal prison administrative remedy procedures do not "in and of themselves" create a liberty interest in access to that procedure and finding the prisoner's right to petition the government for redress is the right of access to the courts, a right that is not compromised by the prison's refusal to entertain his grievance); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994) (holding that the Constitution creates no entitlement to grievance procedures or access to such procedures voluntarily established by the state); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988) (holding there is no legitimate claim of entitlement to a grievance procedure). Accordingly, any attempt to raise a claim concerning administrative grievance procedures fails to state a violation of his constitutional rights. Walters v. Corrections Corp. of America, No. 04-6067, *1 (10th Cir. Dec. 7, 2004) (unpublished). Therefore, this claim fails to state a claim on which relief may be granted.

1 This unpublished decision and any others cited herein are cited as persuasive authority pursuant to Tenth Circuit Rule 32.1.

RECOMMENDATION

For the reasons set forth above, it is recommended that Plaintiff's complaint be dismissed upon filing for failure to state a claim for which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). It is further recommended that dismissal of this action should count as a strike pursuant to 28 U.S.C. § 1915(g).2 Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by the 13th day of July, 2009, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656 (10th Cir.1991). This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.

2 Dismissal should count as a "prior occasion" only after Plaintiff has exhausted or waived his right to appeal. See Jennings v. Natrona County Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999).

Attorneys and Law Firms

*86 Steven Montrail Triplet, Granite, OK, pro se.

Theodore Mark Peeper, Office of the Attorney General, State of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, EBEL, and O'BRIEN, Circuit Judges.

ORDER AND JUDGEMENT*

* This order and judgment is an unpublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R.App. 32.1. It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation - (unpublished). Id.

TERRENCE L. O'BRIEN, United States Circuit Judge.

Steven Montrail Triplet, a state prisoner confined in the Oklahoma Department of *87 Corrections (ODOC), pled guilty as an adult in state court to attempted escape from custody, a crime he was charged with on July 3, 2002, when he was seventeen years old. He filed a 28 U.S.C. § 2254 petition, claiming ineffective assistance of appellate counsel for failing to raise a seminal issue - whether the adult court had jurisdiction because he was a juvenile. The district court denied the petition. We granted

I. OVERVIEW OF OKLAHOMA LAW

A juvenile (one under the age of 18) alleged to have committed a crime in Oklahoma can be held accountable as (1) a child, (2) a youthful offender or (3) an adult. If the juvenile is to be treated as a child, the case proceeds in the juvenile division of the district court. See Okla. Stat. Ann. tit. 10, §§ 7301-1.3(4), 7303-4.3(A) (2000).1 If the court finds the allegations against the juvenile to be supported by the evidence, it enters an order of adjudication declaring the juvenile delinquent. Id. § 7303-4.6(A). An adjudicated delinquent shall not "be deemed a criminal" nor is he subject to the civil disabilities which normally follow a criminal conviction. Id. § 7307-1.7(A).

1 For this discussion only, we cite to the 2000 version of the Oklahoma Code which was in effect when Triplet pled guilty to robbery with a firearm, even though his attempted escape conviction did not occur until 2002. The differences between the 2000 and 2002 versions are insignificant for our purposes. Our remaining discussion will refer to the version in effect at the time of the relevant offense, see Bowman v. State, 789 P.2d 631, 631 (Okla.Crim.App.1990) ("It is a well established rule of law that the appropriate criminal penalty is the penalty in effect at the time the defendant commits the crime."), or the relevant procedure. See Salazar v. State, 852 P.2d 729, 737-38 (Okla.Crim.App.1993).

Some juveniles are required to be treated as youthful offenders due to their age and criminal conduct.2 See id. § 7306-2.6(A), (B). If so treated, the case proceeds in the criminal division of the district court (adult court) and the juvenile is treated in much the same manner as that of an adult. Id. § 7306-2.4(A)-(C); see also In re M.B., 145 P.3d 1040, 1047 (Okla.2006) ("All the rights, protections, and procedures surrounding a criminal trial are in place in a trial of a youthful offender."). Upon a finding or admission of guilt, the juvenile is sentenced as a youthful offender in the "manner provided by law for an adult for punishment of the offense committed" but the sentence may not exceed ten years. Okla. Stat. Ann. tit.10, § 7306-2.9(B); see also In re M.B., 145 P.3d at 1047. However, unlike an adult who is sentenced to the county jail or to the custody or supervision of the Oklahoma Department of Corrections *88 (ODOC), a juvenile tried and convicted as a youthful offender will generally be sentenced to the custody (juvenile facility) or supervision (probation) of the Office of Juvenile Affairs. See Okla. Stat. Ann. tit. 10, §§ 7306-2.6(F), 7306-2.9(A), (B), 7306-2.10(A), (B); Okla. Stat. Ann. tit. 22, § 991a(A). The Office of Juvenile Affairs must prepare a rehabilitation plan for the juvenile providing (1) the juvenile facility where the juvenile will be placed (if applicable), (2) the objectives the juvenile is expected to achieve and (3) the services the juvenile will be provided to assist him in achieving those objectives. Okla. Stat. Ann. tit. 10, § 7306-2.10(A).

2 Oklahoma adopted its Youthful Offender Act on January 1, 1998, "to better ensure the public safety by holding youths accountable for the commission of serious crimes, while affording courts methods of rehabilitation for those youths the courts determine... may be amenable to such methods" and "to allow those youthful offenders whom the courts find to be amenable to rehabilitation... to be placed in the custody or under the supervision of the Office of Juvenile Affairs for the purpose of accessing the rehabilitative programs provided by that Office and thereby, upon good conduct and successful completion of such programs, avoid conviction for a crime." See Okla. Stat. Ann. tit. 10, § 7306-2.2(B) (2000); see also G.G. v. State, 989 P.2d 936, 937-38 (Okla.Crim.App.1999).

The court will review the juvenile's compliance with his rehabilitation plan at least semiannually. Id. § 7306-2.10(B). If, upon a hearing, the court decides the juvenile has reasonably complied with his rehabilitation plan and the public's safety will not be jeopardized, the court may discharge the juvenile without a judgment of guilt and order the verdict or plea expunged. Id. § 7306-2.10(F)(1).3 If, on the other hand, the court determines the juvenile has (1) seriously injured or endangered another person by his violent behavior, (2) escaped from a training school, (3) committed a felony while in the custody or under the supervision of the Office of Juvenile Affairs or (4) failed to substantially comply with his written rehabilitation plan, the court may enter a judgment of guilt and transfer the juvenile to the county jail or to the custody and supervision of the ODOC. Id. § 7306-2.10(F)(5); see also Okla. Stat. Ann. tit. 22, § 991a(A).

3 The statutes sometimes refer to the Department of Juvenile Justice, which is the branch of the Office of Juvenile Affairs responsible for the programs and services provided to juveniles alleged or adjudicated delinquent. See Okla. Stat. Ann. tit. 10, § 7302-2.2(A)(1) (2000). To avoid confusion, we refer only to the Office of Juvenile Affairs.

In general, once a juvenile is prosecuted and sentenced as a youthful offender, he will continue to be prosecuted as a youthful offender in all subsequent criminal proceedings until he reaches eighteen. Okla. Stat. Ann. tit. 10, § 7306-2.4(G). Prior to reaching eighteen, he will only be treated as an adult in subsequent matters if (1) the court had previously determined, after a hearing and investigation, he should receive an adult sentence because he would not reasonably comply with a rehabilitation plan or the public would not be adequately protected if he were to receive a youthful offender sentence or (2) the court certifies him to stand trial as an adult. Id. §§ 7306-2.4(F), 7306-2.8(A)-(E).

A juvenile may, and sometimes must, be tried as an adult. A juvenile may be certified to stand trial as an adult by the court after it considers determining factors such as the seriousness of the offense, whether the offense was committed against persons or property, the juvenile's sophistication and maturity, his previous record and the likelihood of reasonable rehabilitation of the juvenile in the juvenile system. Id. § 7303-4.3(B). Juveniles over thirteen years old accused of certain serious crimes are required by statute to be tried as adults. Id. § 7306-1.1(A), (B). If the juvenile is to be treated as an adult, the case proceeds as a criminal action in the district court (adult court) and if convicted, the juvenile may be sentenced to the county jail or the custody or supervision of the ODOC. See Okla. Stat. Ann. tit. 22, § 991a(A).

II. STATE TRIAL PROCEEDINGS

The facts of this case are convoluted because of the number of crimes committed by Triplet. We recite only those facts pertinent to our decision.

*89 On October 18, 2000, Triplet, then fifteen years old, pled guilty to robbery with a firearm in Oklahoma state court.4 Due to his age and the nature of his offense, he was required to be treated as a youthful offender under Oklahoma law. See Okla. Stat. Ann. tit. 10, § 7306-2.6(A)(5) (2000) ("Any person fifteen... years of age who is charged with... [r]obbery with a firearm or attempt thereof... shall be held accountable for his acts as a youthful offender). He was sentenced to ten years in the custody of the Office of Juvenile Affairs. On November 15, 2000, the parties adopted a written plan of rehabilitation. Pursuant to that plan, Triplet was placed in a juvenile facility.

4 In several documents in the record, Triplet's plea is referred to as a plea of nolo contendere and his offense as attempted robbery with a firearm. However, because the court document imposing sentence states Triplet pled guilty to robbery with a firearm, we defer to it. In any event, we need not resolve the discrepancy because it is irrelevant to our analysis.

On August 3, 2001, Triplet was paroled from the juvenile facility. When he violated the conditions of his parole, he was placed in the county jail. On July 3, 2002, while in custody, Triplet, then seventeen years old, attempted to escape. Sixteen days later, on July 19, 2002, the State charged him as an adult with attempted escape from custody. However, because he was not certified to stand trial as an adult and had not previously received an adult sentence, he should have been treated as a youthful offender in the attempted escape case. See Okla. Stat. Ann. tit. 10, § 7306-2.4(F), (G) (2002) ("A... youthful offender shall be tried as an adult in all subsequent criminal prosecutions [only] if: 1. The... youthful offender has been certified to stand trial as an adult...; or 2. The youthful offender has been certified for the imposition of an adult sentence as provided by [§] 7306-2.8 of this title and is subsequently convicted of the alleged offense....")

Apparently, Triplet was released from custody after being charged with attempted escape as he went on to commit new crimes in March, September and November 2003, including possession of a controlled dangerous substance (cocaine), conspiracy to commit a felony (armed robbery), concealing stolen property and obstructing an officer, false declaration of ownership to a pawnbroker and uttering two or more bogus checks. He was charged with these offenses in the district court (adult court) sometime in 2003 (after he had turned 18).

On May 19, 2004, Triplet (then nineteen) pled guilty in adult court to the attempted escape from custody charge and the 2003 charges. He was sentenced to two years imprisonment in the ODOC on the attempted escape charge. Relevant here, that sentence was ordered to run concurrent with several sentences he received on the 2003 charges, the longest of which was ten years. Triplet was also sentenced to two ten-year sentences (eight years suspended) on the 2003 charges. These sentences were ordered to run concurrent with each other but consecutive to the concurrent series containing the attempted escape sentence (i.e., after he completed ten years).

Triplet immediately sought to withdraw his plea, alleging the district attorney intimidated and coerced him into pleading guilty. The trial court denied relief on June 1, 2004. Triplet, represented by counsel, appealed by filing a petition for writ of certiorari with the OCCA, 5 arguing *90 the trial court abused its discretion by not allowing him to withdraw his guilty plea, his sentence was excessive, his plea was not knowing or voluntary, and he was denied due process and equal protection of the law. On November 18, 2004, the OCCA denied the petition and affirmed the judgment.

5 Under Oklahoma law. "all appeals taken from any conviction on a plea of guilty shall be taken by petition for writ of certiorari to the Court of Criminal Appeals." Okla. Stat. Ann. tit. 22, § 1051(A) (2004).

III. STATE POST-CONVICTION RELIEF PROCEEDINGS

On November 18, 2005, and again on November 6, 2006, Triplet filed for post-conviction relief in state court challenging his attempted escape conviction. He alleged that because he was under the age of eighteen at the time he was charged with attempting to escape and was never certified to be tried as an adult, his attempted escape conviction was void and his right to due process violated, notwithstanding that he was nineteen when he pled guilty.6 Additionally, he claimed his appellate counsel was ineffective for failing to raise the lack of adult certification on appeal. The state court denied relief on January 11, 2006. The OCCA affirmed on March 23, 2006. After setting forth Triplet's claims, the OCCA stated in relevant part:

6 In his pro se brief, Triplet said that because he was seventeen when he committed the offense, the adult court lacked jurisdiction to try him as an adult. However, the statutes requiring juveniles of certain ages to be treated as a youthful offender or an adult refer to the juvenile being charged. See Okla. Stat. Ann. tit. 10, § § 7306-1.1(A), (B), 7306-2.6(A), (B). We need not resolve the issue because Triplet was seventeen when he committed the offense and at the time he was charged. For simplicity purposes, we refer solely to when Triplet was charged.
[A]ll issues previously ruled upon by this Court are res judicata, and all issues not raised in the direct appeal [of the Attempted Escape conviction], which could have been raised, are waived....
Petitioner argues he was denied effective assistance of appellate counsel because appellate counsel did not raise issues Petitioner believes should have been raised on direct appeal. Failure to raise each and every issue is not determinative of ineffective assistance of counsel and counsel is not required to advance every cause of argument regardless of merit. See Cartwright v. State, 1985 OK CR 136, ¶¶ 6-8, 708 P.2d 592. The record does not support Petitioner's contention he was denied effective assistance of appellate counsel.

(R. Doc. 10-9 at 1-2.)

IV. FEDERAL HABEAS PROCEEDINGS

Triplet filed this timely pro se 28 U.S.C. § 2254 habeas petition attacking his attempted escape conviction. He alleged (1) the state district court lacked jurisdiction to try him as an adult on the attempted escape charge because he was seventeen when he was charged with the offense and he was never certified to stand trial as an adult and (2) appellate counsel was ineffective for failing to contact him to determine which issues he wished to raise on direct appeal. The petition was referred to a magistrate judge.

The magistrate judge recommended the petition be denied. Relevant here, the magistrate determined the OCCA, in rejecting Triplet's ineffective assistance of appellate counsel claim, necessarily concluded he was not entitled to consideration as a youthful offender on the attempted escape charge under Oklahoma law. The magistrate stated:

The [OCCA] is the arbiter of Oklahoma law, and the improper interpretation of *91 state law does not support a federal habeas case. Jurisdiction is no exception to the general rule that federal courts will not engage in collateral review of state court decisions based on state law... we are bound by a state court's conclusion respecting jurisdiction.

(R. Doc. 14 at 10 (quotations omitted).) Over Triplet's objection, the district court adopted the magistrate's recommendation and entered judgment accordingly. Triplet filed a notice of appeal which the district court construed as a request for a COA. The court denied the request for a COA, as well as Triplet's subsequent motion to proceed in forma pauperis ( ifp ) on appeal.

Triplet renewed his request for a COA with this Court. We concluded he was entitled to a COA on his ineffective assistance of appellate counsel claim and ordered the State to file a brief addressing: (1) whether Triplet's guilty plea to the attempted escape charge constituted a waiver of his objection to a lack of adult certification and (2) whether Triplet's claim that the State did not comply with Oklahoma law in sentencing him as an adult is cognizable in a 28 U.S.C. § 2254 proceeding. After receiving the State's brief and Triplet's reply, we appointed counsel to represent Triplet and requested supplemental briefing on the issues raised in our order granting a COA and those raised in the State's brief Additionally, because it appeared Triplet had served his attempted escape sentence at the time he filed his § 2254 petition, we directed the supplemental briefing to address whether Triplet was "in custody" on the attempted escape charge at the time he filed his § 2254 petition.

V. DISCUSSION

Our review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). When the state court has adjudicated a claim on the merits, we may grant relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In this case, the OCCA rejected Triplet's ineffective assistance of appellate counsel claim but did not explain why. Nevertheless, its decision constituted an "adjudication on the merits, " and we must defer to the OCCA's result, even though its reasoning is not expressly stated. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004).

Because no Supreme Court precedent suggests application of a different standard, Triplet's ineffective assistance of counsel claim is controlled by the general Strickland 7 standard. See Knowles v. Mirzayance, ___ U.S. ___, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) ("[T]his Court has repeatedly applied [the Strickland ] standard to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point"); see also Wright v. Van Patten, 552 U.S. 120, 124-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (evaluating ineffective assistance of counsel claim under Strickland where no Supreme Court precedent established any other standard applied). When evaluating an ineffective assistance of counsel claim under § 2254(d)(1), our review is "doubly deferential"we defer to the state court's determination that counsel's performance *92 was not deficient and further defer to the attorney's decision in how best to represent a client. Knowles, 129 S.Ct. at 1420; Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003).

7 See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Yet a third level of deference applies. Whether appellate counsel is constitutionally ineffective for failing to raise a claim requires us to examine the merits of the omitted claim:

If the omitted [claim] is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance; if the omitted [claim] has merit but is not so compelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the [claim] is meritless, its omission will not constitute deficient performance.

See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003). In this case, the merits of the omitted claim - whether the adult court had jurisdiction to take Triplet's plea and sentence him in the attempted escape case - is a question of state law to which we are bound. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Chandler v. Armontrout, 940 F.2d 363, 366 (8th Cir.1991) (holding state court's determination that trial court had jurisdiction to accept defendant's guilty plea binding on federal court); Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir.1976) ("Determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary.").

With this "triple deference" in mind, we turn to the issues raised.

A. "In custody" requirement

28 U.S.C. § 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(Emphasis added.) "The in custody' language of § 2254 is jurisdictional and requires habeas petitioners to be in custody' under the conviction or sentence under attack when they file the petition." Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir.2004).

Triplet filed his § 2254 petition attacking his attempted escape conviction on April 6, 2006. At that time, he had already completed his two year sentence.8 *93 However, he was still serving the eight years remaining on the sentences that were ordered to run concurrent with his attempted escape sentence (the concurrent series). Additionally, he had yet to serve the two concurrent ten-year sentences (eight years suspended) which were ordered to run consecutive to the concurrent series. See hyperlink, n.8. The fact the attempted escape sentence was part of a consecutive series, with sentences remaining to be served within the consecutive series at the time he filed his § 2254 petition, is critical.

8 In his pro se appellant brief, Triplet stated he was "no longer in custody on the challenged offense because [he] has already discharged that prison sentence" and referred to "Doc. 4." (Appellant's Br. at 2.) Because that document appeared to indicate he had completed his attempted escape sentence on December 22, 2004, we requested supplemental briefing from the parties as to whether Triplet was "in custody" on the attempted escape charge at the time he filed his § 2254 petition. In the supplemental briefs, neither Triplet (who was represented by appointed counsel) nor the State contested the December 22, 2004 date as the date of discharge. However, in his supplemental filings, Triplet referred to a document indicating Triplet's reception date into the ODOC was December 22, 2004. Therefore, it is impossible for him to have completed his sentence on that date. Moreover, performing an offender search on the ODOC's website, of which we take judicial notice, see Fed.R.Evid. 201, has revealed Triplet began his attempted escape sentence on December 22, 2004, and completed it on May 7, 2005. See http://docapp065p.doc.state.ok. us/servlet/page?pageid=394& dad= portal & schema=PORTAL30 & doc_num=489669& offender book id=286523. These dates are more logical, given that Triplet did not enter his guilty plea until May 19, 2004. In any event, Triplet had already served his attempted escape sentence at the time he filed his § 2254 petition.

In Peyton v. Rowe, two state prisoners serving consecutive sentences filed federal habeas petitions attacking convictions whose sentences were set to run second in the consecutive series, i.e., convictions whose sentences they were not yet serving. 391 U.S. 54, 55-57, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). Nevertheless, the Supreme Court determined they were "in custody" on the second convictions for purposes of federal habeas relief. It held that when a habeas petitioner is in custody under consecutive state sentences, those sentences should be considered in the aggregate or as a continuous series. Id. at 64-65, 88 S.Ct. 1549. It reasoned that one of the purposes of the habeas corpus writ is to provide "swift judicial review of alleged unlawful restraints on liberty" and it is in both the government and defendant's interests to have the claims determined before the lapse of time prejudices the truth-finding process. Id. at 59-64, 88 S.Ct. 1549. Therefore, a prisoner serving consecutive sentences should not have to wait to challenge a sentence until he is actually serving it. Consequently, the Court determined the prisoners were considered "in custody" on the second sentence while they were serving the first sentence in the consecutive series. Id. at 67, 88 S.Ct. 1549.

Peyton's holding was extended in Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995). There, a state prisoner serving consecutive sentences filed a § 2254 petition challenging the conviction whose sentence had already run. Relying on Peyton, specifically the fact that consecutive sentences are considered a continuous series, the Supreme Court held the prisoner was "in custody" for purposes of federal habeas relief. Id. at 41, 115 S.Ct. 1948. A petitioner incarcerated under consecutive sentences "remains in custody' under all of his sentences until all are served."9 Id. ; see also Foster v. Booher, 296 F.3d 947, 949-50 (10th Cir.2002) (concluding petitioner was "in custody" under § 2254 even though he had served the sentence on the challenged conviction because that sentence ran consecutive to sentences which had not yet been served).

9 There was no need for the Court to carve out a similar rule for concurrent sentences. Because they run simultaneously, a defendant sentenced to concurrent sentences naturally remains "in custody" until all are served.

*94 The continuing series rationale of Garlotte and Foster controls here. Because Triplet's attempted escape sentence was part of a consecutive series, he remained "in custody" on that sentence for purposes of federal habeas relief until all of the sentences in the consecutive series were served. At the time he filed his habeas petition, he had yet to serve the two concurrent ten-year (eight years suspended) sentences ordered to run consecutive to the concurrent series containing the attempted escape sentence. Consequently, Triplet was "in custody" on the attempted escape conviction when he filed his petition even though he had already served the sentence. The State does not contend otherwise.

B. Justiciability

Federal habeas corpus relief under § 2254 does not lie to correct mere errors of state law. See 28 U.S.C. § 2254 ("The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. ") (emphasis added); Estelle, 502 U.S. at 67, 112 S.Ct. 475. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review [of persons in state custody], a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 67-68, 112 S.Ct. 475.

Triplet's claim alleges a violation of the federal constitution, specifically, a criminal defendant's Sixth and Fourteenth Amendment right to effective assistance of counsel on a first appeal of right. See Evitts v. Lucey, 469 U.S. 387, 392, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Oklahoma affords criminal defendants an appeal as a matter of right. See Okla. Stat. Ann. tit. 22, § 1051(a) (2004) ("An appeal to the Court of Criminal Appeals may be taken by the defendant, as a matter of right from any judgment against him...."). Triplet's claim is cognizable under § 2254.

C. Effect of Guilty Plea

Triplet pled guilty to the attempted escape charge. A voluntary guilty plea waives all non-jurisdictional defects. See Berget v. State, 824 P.2d 364, 372 (Okla.Crim.App.1991). But Triplet alleges his guilty plea (even though entered as an adult) could not waive a jurisdictional defect-without adult certification, the adult court lacked jurisdiction over the attempted escape charge, which he was charged with when he was a juvenile. So, according to Triplet, his claim that appellate counsel was ineffective for failing to raise the jurisdictional defect also survives.10

10 In his pro se brief, Triplet makes a conclusory and perfunctory claim that his guilty plea was forced and therefore involuntary. Appointed counsel makes no such argument in the supplemental brief. Because Triplet has not explained how his plea was forced or presented any argument on the issue, we will not address it. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir.2004) ("The court will not consider... issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.") (quotations omitted). In any event, this argument was denied by the state trial court after a hearing and the OCCA affirmed. We defer to the state courts and indeed see no basis for disagreement.

We agree Triplet's guilty plea did not waive his ineffective assistance claim but for a different reason. A guilty plea only waives claims "that occurred prior to the entry of the guilty plea."

*95 Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (emphasis added); see also Berget, 824 P.2d at 372 ("[A] guilty plea waives all previous non-jurisdictional defects....") (emphasis added). Triplet's ineffective assistance of appellate counsel claim did not arise until after his plea. Therefore, it was not waived by the plea. But that is not the end of the inquiry.

Triplet's guilty plea to the attempted escape charge is significant in a different regard. Appellate counsel cannot be considered ineffective for failing to raise a claim on direct appeal that would have been deemed waived by Triplet's guilty plea, i.e., a non-jurisdictional claim. See Leslie v. Abbott, 117 Fed.Appx. 72, 75-77 (10th Cir.2004) (unpublished); see also United States v. Simmons, 142 F.3d 1279, No. 97-40678, 1998 WL 224564, at *3 (5th Cir. Apr. 21, 1998) (unpublished).11 Indeed, in Oklahoma, an appeal from a conviction upon a plea of guilty (a certiorari appeal) "is limited to two inquiries: (1) whether the guilty plea was made knowingly and voluntarily; and (2) whether the district court accepting the guilty plea had jurisdiction to accept the plea." Cox v. State, 152 P.3d 244, 247 (Okla.Crim.App.2006); see also Okla. Stat. Ann. tit. 22, § 1051(a), (c) (2004) (stating "[t]he scope of review to be afforded on certiorari shall be prescribed by the Court of Criminal Appeals"). In other words, absent a claim the plea was not knowingly or voluntarily made (a claim appellate counsel raised and the OCCA rejected in this case), a certiorari appeal is limited to whether the court accepting the plea had jurisdiction. Consequently, if the lack of adult certification did not deprive the district court of jurisdiction, appellate counsel cannot be deemed ineffective for failing to raise it as such a claim would have been waived by Triplet's guilty plea and would have been outside the scope of the OCCA's review. Therefore, although a merits issue, we consider here whether the lack of adult certification is jurisdictional.

11 Unpublished opinions are not binding precedent. 10th Cir. R.App. P. 32.1(A). We mention Leslie, Simmons and the other unpublished cases cited in this opinion as we would any other non-precedential authority.

Two claims were before the OCCA: (1) Triplet's attempted escape conviction was void and his due process rights violated because he was seventeen at the time he was charged with the offense and was never certified to be tried as an adult, and (2) appellate counsel was ineffective for failing to raise this issue on direct appeal. The OCCA concluded all claims which could have been but were not raised on direct appeal were waived and appellate counsel was not ineffective. Obviously, the waiver ruling pertained to Triplet's first claim as his second claim could not have been raised on direct appeal. In Oklahoma, issues of subject matter jurisdiction cannot be waived and can be raised for the first time on collateral review. See Wallace v. Oklahoma, 935 P.2d 366, 372 (Okla.Crim.App.1997) ("[E]ven though not raised on direct appeal, issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal."). Thus, the OCCA evidently did not consider Triplet's first claim jurisdictional because it deemed it waived. We are bound by this state law determination. See Bradshaw, 546 U.S. at 76, 126 S.Ct. 602; Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; Chandler, 940 F.2d at 366; Wills, 532 F.2d at 1059.

The OCCA did not explain its conclusion but our own review of Oklahoma law convinces us it is correct. Triplet was tried and sentenced as a youthful offender in the robbery case. Therefore, as stated previously, he should have been treated as a *96 youthful offender, not as an adult, in the attempted escape case. But, even had he been properly treated as a youthful offender, his prosecution and sentencing would have proceeded before the district court (adult court). See Okla. Stat. Ann. tit. 10, § 7306-2.4(A)-(C), 7306-2.9(A), (B). Therefore, whether treated as a youthful offender or as an adult, the district court clearly had the authority, and jurisdiction, to accept Triplet's plea and sentence him in the attempted escape case. See Puckett v. Cook, 586 P.2d 721, 723 (Okla.1978) ("Jurisdiction includes power to hear and decide a justiciable controversy."); Welch v. Focht, 67 Okla. 275, 171 P. 730, 733 (1918) ("Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them.... If the law confers the power to render a judgment or decree, then the court has jurisdiction.") (quotations omitted).

The only error in this case occurred when the district court sentenced Triplet to the ODOC. In general, a district court sentences a youthful offender to the custody or supervision of the Office of Juvenile Affairs. See Okla. Stat. Ann. tit. 10, § 7306-2.9(B). A district court may, however, sentence a youthful offender to the custody or supervision of the ODOC if it certifies the juvenile to receive an adult sentence. Id. § 7306-2.8(B). The State initiates the certification process by filing a motion for certification. Id. § 7306-2.8(A). The court then orders an investigation (unless waived by the juvenile) and holds a hearing, at which it considers, inter alia, the nature of the alleged offense, the juvenile's sophistication and maturity, his previous record, the likelihood of reasonable rehabilitation of the youthful offender in the juvenile system if he is found to have committed the offense and whether the offense occurred while the person was escaping from a secure facility. Id. § 7306-2.8(C). If, after the hearing, the court determines there is good cause to believe the juvenile would not reasonably complete a plan of rehabilitation or the public would not be adequately protected if the juvenile was sentenced as a youthful offender, it may certify the juvenile to receive an adult sentence. Id. § 7306-2.8(D). The certification must occur prior to the juvenile pleading guilty so he will know the range of punishment he is facing by pleading guilty. See A.J.B. v. State, 992 P.2d 911, 912-13 (Okla.Crim.App.1999) (interpreting § 7306-2.8(A) as requiring completion of the proceedings on the State's motion for adult sentencing before a guilty plea is entered or accepted so juvenile will know range of punishment he is facing if plea entered). If the court certifies the juvenile to receive an adult sentence, it shall, "upon... the entry of a plea of guilty..., impose sentence as provided by law for an adult for punishment of the offense committed." Okla. Stat. Ann. tit. 10, § 7306-2.8(E).

In this case, the district court sentenced Triplet to the ODOC without first certifying him to receive such sentence prior to his guilty plea. But that failure did not divest the district court of subject matter jurisdiction, which it acquired upon the filing of the criminal information. See M.K.H. v. State, 946 P.2d 677, 679 (Okla.Crim.App.1997) ("[A] trial court's jurisdiction is triggered by the filing of an Information alleging the commission of a public offense with appropriate venue. And the general rule is that once the District Court has jurisdiction of the subject matter and the person, it will not be defeated or divested by subsequent events.") (citation and quotations omitted); see also Turk v. Coryell, 419 P.2d 555, 558 (Okla.1966) ("The general rule is that when jurisdiction of the subject matter and the person. *97 is once acquired it will not be defeated or divested by subsequent events."); c.f. Mason v. State, 868 P.2d 724, 726-27 (Okla.Crim.App.1994) (once the district court acquired adult jurisdiction over a juvenile due to his having been charged with a crime requiring him to be tried as an adult, the court retained jurisdiction to convict and sentence the juvenile for any lesser included offense, even a non-enumerated offense). Indeed, the Oklahoma district courts are courts of general jurisdiction constitutionally endowed with unlimited original jurisdiction of all justiciable matters. See OKLA. CONST. art. 7, § § 7(a) ("The District Court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article...."), 7(b) ("All Courts in the State of Oklahoma... are hereby abolished... and their jurisdiction, functions, powers and duties are transferred to the respective District Courts...."); see also Okla. Stat. Ann. tit. 20, § 91.1 ("The district courts of the State of Oklahoma are the successors to the jurisdiction of all other courts, including the... Juvenile Courts...."). The error in this case was more appropriately one of due process (i.e., a non-jurisdictional violation). But Triplet waived any due process claim by pleading guilty. See Berget, 824 P.2d at 372; United States v. Wright, 43 F.3d 491, 494 (10th Cir.1994); United States v. Trevizo-Miramontes, 20 Fed.Appx. 823, 825 (10th Cir.2001) (unpublished). And, in any event, certiorari appeal is not available in Oklahoma for such non-jurisdictional claims. Therefore, appellate counsel was not ineffective for failing to raise the issue.12

12 We acknowledge the OCCA has held the district court (adult court) cannot obtain jurisdiction to try a juvenile as an adult absent a certification proceeding. See, e.g., Edwards v. Oklahoma, 591 P.2d 313, 319 (Okla.Crim.App.1979) ("The district court could not obtain jurisdiction to try a juvenile as an adult without a certification proceeding."); see also Bishop v. Oklahoma, 595 P.2d 795, 796 (Okla.Crim.App.1979) (holding juvenile could not waive the juvenile court's jurisdiction by confessing to a motion to certify); Ex Parte Dickerson, 67 Okla.Crim. 439, 94 P.2d 951, 954 (1939) ("[a]s to all juvenile offenses, the district court is a court of limited or special jurisdiction, and not a court of general jurisdiction"; without a certificate from the juvenile court showing the juvenile competent to know the wrongfulness of his acts and probable cause to believe he committed the crime, the district court was without jurisdiction over the juvenile's prosecution). We question the continued viability the use of the word "jurisdiction" in these cases given the general jurisdiction of Oklahoma's district courts and the fact that when Oklahoma abolished its juvenile courts in 1968, it transferred their jurisdiction to the district courts. See OKLA. CONST. art. 7, §§ 7(a), 7(b); Okla. Stat. Ann. tit. 20, § 91.1. In any event, we need not resolve the issue. These cases occurred prior to Oklahoma enacting its Youthful Offender Act on January 1, 1998. Prior to the Act, a juvenile would be tried as a child in the juvenile division of the district court unless certified to be tried as an adult or statutorily required to be tried as an adult due to his age and the nature of his offense. Under the Act, a juvenile can be held accountable as a child, youthful offender or adult. If treated as a youthful offender, the juvenile, like an adult, is tried and sentenced by the district court (adult court).

Even assuming, arguendo, the issue is a jurisdictional (non-waivable) issue under Oklahoma law, appellate counsel was only ineffective under federal law if (1) the lack of adult certification issue was plainly meritorious or (2) the issue was not plainly meritorious but nevertheless should have been raised when assessed against the other potential issues to be raised. See Cargle, 317 F.3d at 1202; see also Smith v. Robbins, 528 U.S. 259, 285, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). However, whether the lack of adult certification issue had merit is plainly one of Oklahoma law. Again, "it is not the province of a federal *98 habeas court to reexamine state court determinations on state-law questions." Estelle, 502 U.S. at 67-68, 112 S.Ct. 475. In this case, the OCCA did not explain why it rejected Triplet's ineffective assistance of appellate counsel claim. But implicitly, the OCCA must have concluded the lack of adult certification issue was meritless or had merit but was not so compelling in light of the rest of the appeal. We will not, and cannot, second-guess this determination of Oklahoma law. Deferring to this determination and applying the double deference accorded an ineffective assistance of counsel claim evaluated under the § 2254(d)(1), see Knowles, 129 S.Ct. at 1420, we cannot say the OCCA's conclusion that Triplet's appellate counsel was not ineffective for failing to raise the lack of adult certification issue was an unreasonable application of Strickland.

AFFIRMED.13

13 Triplet filed an application to proceed ifp on appeal with this Court at the inception of this appeal. We GRANT his application.

Attorneys and Law Firms

J. Mark Smith, Pendleton, Friedberg, Wilson & Hennessey, P.C., Denver, CO, for Plaintiff

Ralph M. Suddath, Hickory Creek, TX, pro se.

Kay Ekwall, Cave Junction, OR, pro se.

Allen Heart, Cave Junction, OR, pro se.

ORDER

LEWIS T. BABCOCK, Chief Judge.

*1 This case is before me on the recommendation of the magistrate judge that: 1. Plaintiff's Motion to Strike Pursuant to Fed.R.Civ.P. 12(f), or, in the Alternative, Motion For More Definite Statement Pursuant to Fed.R.Civ.P. 12(e) [Filed June 29, 2006: docket # 10] be granted with regard to Plaintiff's request that certain filings be stricken and denied as moot with regard to Plaintiff's request for a more definite statement; 2. Plaintiff's Renewed Motion to Strike the Filings of Defendant Ralph Suddath [Filed August 30, 2006; docket # 22] be granted; 3. that the court strike in their entirety the filings made by Defendant Suddath as set forth in Dockets # 2, # 19 and # 20; and 4. that the court strike, in its entirety, the filing made by Alvin Joseph Hansen as set forth in Docket # 9.

The recommendations were entered and served on September 18, 2006. Defendants have filed no written objections to the magistrate judge's recommendations and therefore are barred from de novo review. Accordingly,

IT IS ORDERED:

1. Plaintiff's Motion to Strike Pursuant to Fed.R.Civ.P. 12(f), Docket No. 10, is GRANTED and the Motion in The Alternative For More Definite Statement, Docket No. 10, is DENIED AS MOOT; 2. Plaintiff's Renewed Motion to Strike the Filings of Defendant Ralph Suddath, Docket No. 22, is GRANTED; 3. filings by Defendant Suddath, Docket Nos. 2, 19 and 20 are STRICKEN IN THEIR ENTIRETY; and 4. the filing made by Alvin Joseph Hansen, Docket No. 9, is STRICKEN IN ITS ENTIRETY.

MICHAEL E. HEGARTY, United States Magistrate Judge.

RECOMMENDATION TO GRANT MOTION TO STRIKE AND RENEWED MOTION TO STRIKE

This matter has been referred to this Court by the Order of Reference to United States Magistrate Judge, filed on June 30, 2006 (Docket # 12) for purposes of hearing and determining nondispositive motions and making recommendation on dispositive matters. Before the Court is Plaintiff's Motion to Strike Pursuant to Fed.R.Civ.P. 12(f), or, in the Alternative, Motion for More Definite Statement Pursuant to Fed.R.Civ.P. 12(e) ("Motion to Strike"), filed on June 29, 2006 (Docket # 10), and Plaintiff's Renewed Motion to Strike the Filings of Defendant Ralph Suddath ("Renewed Motion to Strike") (Docket # 22). Oral argument in this regard would not materially assist the Court in adjudicating the matters before it. For the reasons stated below, it is recommended that the Plaintiff's motions be granted, and filings by the Defendant Suddath and those made by nonparty Alvin Joseph Hansen be stricken. Because the striking of these documents will result with none of the Defendants having an Answer or other responsive pleading filed of record in this case, default of pro se parties becomes a consideration. Therefore, the matter is deemed dispositive and is being handled by recommendation under the Order of Reference in this case.

Be advised that all parties shall have ten (10) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. FED.R.CIV.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within ten (10) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir.1986).

BACKGROUND

*2 This is an action for trademark infringement, which was filed by the Plaintiff on April 27, 2006 (Docket # 1). Plaintiff alleges that Defendants' website contains materials that infringes Plaintiff's copyrighted works, content and format, and violates the Plaintiff s rights under applicable trademark statutes and violates the Lanham Act. Defendant Ralph M. Suddath as served in this action on May 5, 2006. On May 15, 2006, Defendant Suddath filed 40 pages of documents, which are variously titled (Document # 2), but which the Plaintiff and this Court would presume to be some type of response to the Complaint. Thereafter, on May 26, 2006, Alvin Joseph Hansen, who is not named as a Defendant in this action and from the attorney roles of this Court does not appear to be an attorney admitted to practice before this Court, filed a document entitled "Hansen, Ekwall & Heart's Demurrer and Transfer to Courts of Open Criminal Contempt Proceedings, and Open Arrest Warrants Conspiracy to Evade Debt Hobbs Act 18 USC 1951, " together with 121 pages of attachments (Docket # 9).

Plaintiff filed its Motion to Strike on June 29, 2006 (Docket # 10). In the motion, the Plaintiff argues that Defendant Suddath's filing fails to comply with the rules of pleading and requests that it be stricken. Alternatively, the Plaintiff requests that the Defendant be required to provide a more definite statement pursuant to Fed.R.Civ.P. 12(e). Additionally, the Plaintiff seeks to have the documents filed by Alvin Hansen stricken because he is not a party to this case. The Court directed that the Defendants would have until and including July 19, 2006, in which to respond to the motion (Docket # 15). The Court's directive was mailed to each of the Defendants on July 6, 2006 (Docket # 15-2). The record demonstrates that none of the mailings was returned by the United States Post Office.

Plaintiff filed its Amended Complaint in this action on July 27, 2006, with the Certificate of Service indicating that the pleading was mailed to the Defendants on that date (Docket # 16). On August 4, 2006, Defendant Allen Heart filed a letter and 133 pages of attachments consisting of various documents and other information (Docket # 17). The filing was cross-referenced in the text of the docketing notes as being filed in response to the Amended Complaint, but a review of the materials demonstrated that the purpose of the filing was not clearly discernable from the materials. The Court struck the filing from the record as nonresponsive (Docket # 18).1 Defendant Heart has made no attempt to clarify the matter. On August 15, 2006, Defendant Suddath made two separate filings, one of 20 pages in length (Docket # 19) and another of almost identical materials which is 18 pages in length (Docket # 20). The materials are not captioned with the case information from this lawsuit, but do contain copies of the electronic filing docket from this matter.

1 The docket notation in this regard, however, mistakenly identifies this ruling as granting the Plaintiff's Motion to Strike.

To date, no clearly designated responses to the Plaintiff's motions have been filed, nor have any extensions of time in which to respond have been requested.

DISCUSSION

*3 Because the Defendants in this action have proceeded without counsel, the Court must construe any pleadings and other filings made by any of them liberally. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court should not be the pro se litigant's advocate. Hall, 935 F.2d at 1110. Although the Court must liberally construe pro se pleadings, pro se status does not excuse the obligation of any litigant to comply with the same rules of procedure that govern other litigants. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992); Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994).

Rule 8(b) of the Federal Rules of Civil Procedure provides that "[a] party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies." A pleading which constitutes a "gross violation"of Rule 8 may be stricken. See Asay v. Hallmark Cards, Inc., 594 F.2d 692, 696 n. 2 (8th Cir.1979). More commonly, however, a pleading is excluded based on the provisions of Fed.R.Civ.P. 12(f), which states:

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Motions to Strike made under Rule 12(f) are viewed with disfavor by the federal courts, and are infrequently granted. See C. WRIGHT & A. MILLER, 5C FED. PRAC. & PROC.3D § 1380. The rule should be used only when the allegations being challenged have no relation to the plaintiff's claims. Id.

Plaintiff contends that Defendant Suddath's filing neglects to address any of the Plaintiff's claims and fails to comply with the basic rules of pleading under Rule 8. Plaintiff also describes the documents as immaterial and impertinent, constituting a violation of Fed.R.Civ.P. 12. Plaintiff also seeks to strike the filings of nonparty Alvin J. Hansen under the same arguments, together with allegations that the materials are scandalous. Upon review of the materials, this Court would agree.

Even under the most liberal construction of the pleading requirements contained in Fed.R. Civ.P. 8, the documentation submitted by Defendant Suddath does not raise any defense to the Plaintiff's claims nor does it admit or deny the allegations contained in the Complaint. Defendant has additionally failed to respond to the Plaintiff's motions requesting that the filing be stricken, nor has the Defendant attempted to amend the materials to clarify their intent or make any attempt to refile a proper responsive pleading. As detailed by the Plaintiff:

One of the documents filed in response states that "a declaration of war has been levied, "and asks plaintiff's counsel, "Do I know you and are you representing me without my license?"See For The Record; At Law, at 1. The Response also includes an "Invoice for Labor, " which "bills" plaintiff for Suddath's time and effort in answering the Complaint, and comments that "$25, 000.00 is a bargain for you in responding with my labor to you." See Invoice for Labor, at 1. This document also states, "due to the sensitive nature by your position, I recommend we communicate in code." See id. ...

*4 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE, Docket # 11, p. 4. One of the purposes of Rule 12(f) is to allow the Court to conserve time and resources by avoiding the litigation of matters that will have no effect on the outcome of a case. See Sierra Club v. Tri-State Generation & Transmission Ass'n, 173 F.R.D. 275, 285 (D.Colo.1997). As the Plaintiff has pointed out, the documents submitted by Defendant Suddath are replete with matters which have no bearing on the case at hand. These filings made by Defendant Suddath has no distinguishable connection to the controversy, and is therefore immaterial. See id. ("Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded...."). Further, the materials "consist of statements that do not pertain, and are not necessary, to the issues in question, " and are therefore impertinent. See WRIGHT & MILLER, CIVIL 3D § 1382 at 463. Finally, the many pages of documents filed by Defendant Suddath are clearly in gross violation of the pleading requirements of Fed.R.Civ.P. 8. The general purpose of the rules of pleading is to "apprise the opponent of the allegations in the complaint that stand admitted and will not be in issue at trial and those that are contested and will require proof to be established to enable plaintiff to prevail." See WRIGHT & MILLER, CIVIL 3D § 1261 at 526. The materials filed by Defendant Suddath fail in any manner to provide the Plaintiff with fair notice of this Defendant's defenses to the allegations raised by the Plaintiff, in order that the Plaintiff may fully and fairly prosecute this case, nor do they provide any basis upon which the Court can determine whether any defense exists, whether it is a valid defense, or whether it is a defense available to this Defendant. The Court would literally be required to become the Defendant's advocate, and scour through the documents to discern or fashion some type of an Answer or other responsive pleading on his behalf. Such action would be well beyond the mere liberal construction afforded to pro se litigants, and would enter into the impermissible territory of the Court having to become the pro se litigant's advocate. The filings made by Defendant Suddath fail to give any reasonable notice of the allegations in the Complaint or Amended Complaint sought to be placed at issue, and therefore, the filings should be stricken in their entirety.

Defendant could argue that he should be allowed time and opportunity to amend his filings to conform more fully with the pleading rules, in an attempt to avoid potential default in this action. While leave to amend "shall be freely given when justice so requires, " FED.R.CIV.P. 15(a), refusing leave to amend is justified if amendment would cause undue delay or undue prejudice to the opposing party, be offered in bad faith or under a dilatory motive, fail to cure deficiencies by amendments previously allowed, or be futile, Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993). Courts may deny leave, however, if the movant "knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original [pleading].'" Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.1994) (quoting State Distributors, Inc. v. Glenmore Distilleries, 738 F.2d 405, 416 (10th Cir.1984) (citations omitted)).

*5 Based on the record, this Court finds that granting leave to the Defendant to amend his filings to conform to the rules would be untimely, that Defendant did not diligently pursue the basis of such amendments in his second filings made on August 15, 2006, despite being on notice of the deficiencies raised in the Motion to Strike which was pending at the time, and that the facts behind such amendments would have been known to the Defendant at the initiation of this action. Defendant has proceeded in this Court consistently in the same violative fashion, instead of under any other facts or theories of which the Defendant would have known, amounting to a choice made by the Defendant, not excusable neglect. Therefore, allowing the Defendant an opportunity to amend his pleadings would not be justified.

With regard to the materials filed by nonparty Alvin Hansen, nonparty participation in an adversary proceeding is dependent on intervention. See, generally, In re Latimer, 918 F.2d 136, 137 (10th Cir.1990). In federal court, intervention in an adversary proceeding is governed by Fed.R.Civ.P. 24. In this case, Mr. Hansen has made no attempt to intervene under the authority of Rule 24 or under any other authority. As he is not a party to this lawsuit, nor has he properly intervened, Mr. Hansen may not file pleadings or other matters with the Court on behalf of himself or others in this case. Additionally, there is no evidence that Mr. Hansen is an attorney who is seeking to appear on behalf of the Defendants in this action, and the Court takes judicial notice that he is not an attorney admitted to practice in the United States District Court for the District of Colorado2. By federal statute, nonattorney pro se litigants cannot represent other pro se parties. See 28 U.S.C. § 1654. Finally, under Rule 12(f), the materials submitted by Mr. Hansen are not only immaterial and impertinent, but also scandalous. Allegations are considered scandalous if they degrade a party's moral character, contain repulsive language, or detract from the dignity of the court. See WRIGHT & MILLER, CIVIL 3D § 1382 at 465; see, also, Sierra Club, 173 F.R.D. at 285.As noted by the Plaintiff:

2 This Court may take judicial notice of court documents and matters of public record. See, e.g., Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir.1996); Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir.1994); see, also, Southmark Prime Plus, L.P. v. Falzone, 776 F.Supp. 888, 892 (D.Del.1991). The records of the Bar of this Court are available to the public through the Office of the Clerk.
Hansen's filing also includes outrageous allegations, including statements that plaintiff's counsel "kidnapped, tortured, terrorized, falsely imprisoned and violently made many attempts on my life, and murdered beneficiaries raped and controlled my wife Jacqueline and murdered my canine Companion Penni."
Memorandum in Support of Motion to Strike, Docket # 11, p. 6.

It is difficult to imagine filings less concise, and more immaterial and impertinent than those made by Defendant Suddath and Mr. Hansen. It is also difficult to imagine a less prejudicial or more burdensome task than to require the Plaintiff to attempt to determine which facts have been admitted or denied, evaluate settlement possibilities, or prepare for trial in light of the filings that have been repeatedly made. See Sierra Club, 173 F.R.D. at 285 ("Even where the challenged allegations fall within the categories set forth in the rule, a party must usually make a showing of prejudice before the court will grant a motion to strike."). The record establishes that the request by the Plaintiff that the filings be stricken from the record should be granted.

CONCLUSION

*6 For the foregoing reasons, and upon the materials on file herein, it is hereby recommended as follows:

1. Plaintiff's Motion to Strike Pursuant to Fed.R.Civ.P. 12(f), or, in the Alternative, Motion For More Definite Statement Pursuant to Fed.R.Civ.P. 12(e) [ Filed June 29, 2006; Docket # 10 ] be granted with regard to Plaintiff's request that certain filings be stricken and denied as moot with regard to Plaintiff s request for a more definite statement.

2. Plaintiff's Renewed Motion to Strike the Filings of Defendant Ralph Suddath [ Filed August 30, 2006; Docket #22 ] be granted.

3. The District Court strike, in their entirety, the filings made by Defendant Suddath as set forth at Dockets # 2, # 19 and # 20.

4. The District Court strike, in its entirety, the filing made by Alvin Joseph Hansen as set forth at Docket # 9.


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