Tebbetts v. Whitson, 105 F.3d 670 (10th Cir. 1997)

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. This cause is therefore ordered submitted without oral argument.

John Allen Tebbetts, an inmate at the Delta, Colorado, Corrections Center, brought this civil rights action alleging that certain prison officials: 1) retaliated against him for providing legal assistance to other inmates; and 2) violated his due process rights by (a) placing him in segregation prior to a hearing, and (b) convicting him, without any evidence, of attempted bartering and of unauthorized possession. Tebbetts now appeals¹  the district court's dismissal of his civil rights claims pursuant to 28 U.S.C. § 1915(d),²  and its dismissal of the remainder of his action for failure to exhaust state remedies pursuant to 28 U.S.C. § 2254. He contends that the court 1) abused its discretion in finding that his civil rights action was legally frivolous; and 2) erred by construing the portion of his complaint which sought expungement of his convictions and restoration of earned and good time credits as a habeas corpus petition. For the reasons stated below, we deny his application for a certificate of appealability for his habeas action, and we affirm in part and reverse in part the dismissal of his civil rights claims.

Tebbetts alleges that, without any explanation or notice of charges, he was placed in segregation "due to a pending disciplinary action," on October 14, 1994. R. Vol. I, Tab C at 3, p 12. Three days later, on October 17, 1994, defendant Workman reviewed his placement in segregation and ordered it continued. On the same day, Tebbetts was served with notices charging him with attempted bartering and unauthorized possession. The attempted bartering charge arose from letters to him from other inmates which contained offers to pay him for legal help. The unauthorized possession charge arose from his possession of legal papers belonging to another inmate. The disciplinary hearing was conducted on October 18, 1995. At the hearing, Tebbetts was convicted of both charges and sanctioned with punitive segregation, the loss of good time credits, and the automatic loss of statutory earned time.

A. Civil Rights Claims: Alleged Violations of Due Process and Retaliation.

Pursuant to former § 1915(d), a district court may dismiss an in forma pauperis action as frivolous if the "claim [is] based on an indisputably meritless legal theory" or if it is founded on "clearly baseless" factual contentions. Neitzke v. Williams, 490 U.S. 319, 327 (1989). We review such a dismissal for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

1. Due Process--Liberty Interest. In his first, second, third, and ninth claims below, Tebbetts alleges that Colorado DOC regulations and the Due Process Clause gave him a liberty interest in remaining free from pre-disciplinary segregation prior to a hearing. R. Vol. I, Tab C at 7-9, 14. As the district court correctly concluded, the guarantees of the Due Process Clause apply only when a person is to be deprived of life, liberty or property. Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Since an inmate is not entitled to any particular degree of liberty in prison, changes to an inmate's prison classification do not ordinarily involve deprivations of liberty. Id. (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). A move to segregation does not implicate constitutional liberty interests unless the segregation "exceed [s] totally discretionary confinement in either duration or degree of restriction." Sandin v. Conner, 115 S. Ct. 2293, 2301 (1995).

Although a State or a prison may create liberty interests which are protected by the Due Process Clause, such 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, ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300 (citations omitted). We have previously held that Colorado prison regulations do not create a liberty interest in an inmate's classification which would prevent discretionary placement in segregation for a variety of factors. Templeman, 16 F.3d at 369. Even if the pre-disciplinary segregation were "punitive" rather than "administrative,"³  it did not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Thus, the district court properly concluded that Tebbetts' claims of due process violations relating to his pre-disciplinary segregation were legally frivolous.

2. Due Process--Disciplinary Hearing. In his fourth, fifth, sixth and seventh claims below, Tebbetts alleges that he was deprived of due process at the disciplinary hearing. R. Vol. I, Tab C, p 57-85 at 9-13. As the district court correctly observed, a defendant in prison disciplinary proceedings does not have the same rights as a defendant in a criminal prosecution. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Constitutional due process is satisfied in a prison disciplinary proceeding if an inmate is provided: advance written notice of the charges, a limited opportunity to call witnesses and to present documentary evidence in his defense, and a written statement by the factfinders giving the reasons for the decision and the evidence upon which they relied. Id. at 564-66. In his complaint below, Tebbetts concedes that he was given advance written notice and an opportunity to call witnesses.

a. Attempted Bartering. As to the charge for attempted bartering, Tebbetts complains simply that there was no evidence in support of his conviction. According to his complaint, the presenting officer alleged that he had been sent four letters which "either contained or implied an offer to thank or compensate [Tebbetts] in some way for legal assistance [Tebbetts] had provided or may provide in the future." R. Vol. I, Tab C at p 22." Tebbetts' complaint states that he defended the charge of attempted bartering by avowing that he always refuses any offer of compensation, and by specifically pointing to one of his confiscated letters which advised the sender that he would accept no payment. Id. at p 23-25. Thus, he contends that, at most, the letters provided evidence of unsolicited offers only, but there was no evidence that he ever initiated or accepted such offers.

The district court correctly noted that procedural due process requires only that there be "some evidence" to support the findings at the disciplinary hearing. Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985); Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996). Ascertaining whether this standard is satisfied does not require us to examine the entire record, assess witness credibility, or weigh evidence. Hill, 472 U.S. at 455-56. Rather, we determine whether there is any evidence that could support the disciplinary board's decision, and we will uphold that decision even if the evidence supporting it is "meager." Id. At 456-57.

Tebbetts argues that the district court could not properly find that the letters, which it never saw, constituted "some evidence" of his attempted bartering. We agree. On the record before us, we cannot determine that Tebbetts' claim is founded on an indisputably meritless legal theory or that it is factually baseless.

b. Unauthorized Possession. As to the charge for unauthorized possession, Tebbetts alleges that the regulation under which he was charged did not prohibit the possession of legal papers which he had drafted. R. Vol. I, Doc. 3 at p 30. Alternatively, he alleges that the regulation "does not give adequate notice that it prohibits the conduct Plaintiff was accused of, without an unexpected or unusual interpretation of the plain language in the rule, in violation of the Due Process Clause...." Id. at p 62.

Without discussion, the district court found that there was "some evidence" of unauthorized possession, and therefore dismissed the claim as frivolous. However, the court did not address Tebbetts' contention that the regulation expressly permitted the possession of legal papers.⁴ 

DOC Administrative Regulation 203-1 at p 6(b) (I) (19) (d) provides:

(19) Unauthorized Possession--an inmate commits this offense when he has in his possession ... or receives from or gives to another inmate ... any contraband including, but not limited to:

* * *

(d) Form of securities, bonds, coins, currency, legal tender, official papers or documents (other than papers or documents relative to judicial or administrative proceedings) ....

Id. (emphasis added).

Inasmuch as the district court dismissed Tebbetts' complaint pursuant to § 1915(d), the defendants were never required to answer or to explain the basis of their charge that Tebbetts' possession of another inmate's legal papers constituted unauthorized possession. On the limited record before us, and in light of the liberal construction we afford pro se litigants, we cannot conclude that Tebbetts' claim is founded on an indisputably meritless legal theory or that it is factually baseless. Therefore, we find that the district court abused its discretion when it dismissed Tebbetts' claims regarding the disciplinary hearing, and we remand for further proceedings and development of the record as to the claims regarding Tebbetts' convictions for attempted bartering and unauthorized possession.

3. Retaliation for the Exercise of a Constitutionally Protected Right. In his eighth claim, Tebbetts alleges that the defendants conspired to retaliate against him because he provides legal assistance to other inmates. We agree with the district court's analysis. A prison official's retaliation against an inmate for his exercise of a constitutionally protected right is actionable under 42 U.S.C. § 1983. Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990). However, prison inmates have no protected interest in providing legal representation to other inmates. Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990). While an inmate may have a constitutional right to assist others for the purpose of effecting system-wide changes in conditions for all inmates, id., Tebbetts does not allege any such purpose.⁵  In his brief to us, he states generally, that he should be given an opportunity to amend his complaint to allege that the retaliation was for providing assistance to others, "as well as his own legal activities." Appellant's Br. at 16 (emphasis omitted). Thus, he claims that, as a pro se litigant, he should have been given the opportunity to further develop the facts to state a claim in his own right. Liberally construing each claim, we have thoroughly reviewed the complaint in an effort to uncover anything which might suggest any legal activity on Tebbetts' own behalf. We conclude that the district court did not err in failing to divine or speculate upon this enlarged claim which Tebbetts fully omitted, and it did not err in failing to sua sponte allow Tebbetts the opportunity to amend.

In a related allegation under his fourth claim, Tebbetts contends that he was deprived of his First Amendment rights, because the disciplinary conviction for unauthorized possession "interferes with legal correspondence between the Plaintiff and another inmate." R. Vol. 1, Tab C at p 63. We have already noted that an inmate has no protected interest in providing legal assistance to other inmates. Smith, 899 F.2d at 950 (noting that Johnson v. Avery, 393 U.S. 483, 490 (1969) permits a prison to "prohibit inmates from giving legal assistance if reasonable alternative available"). Tebbetts has not alleged that the inmates he assists had no alternative to his assistance. Accordingly, the district court correctly concluded that he has no First Amendment right to possess legal documents which belong to other inmates.

B. Habeas and Challenges to Length of Confinement.

Finally, Tebbetts contends that the district court erred in treating a portion of his complaint as a habeas petition. Although he concedes that his request for an injunction ordering defendants to expunge his disciplinary convictions would ultimately affect the duration of his confinement, he argues that habeas is not the sole remedy.⁶  Our cases state otherwise. "As a general rule, a challenge to the ... duration of confinement [ ] is cognizable only under the habeas statute with its requirement of exhaustion of state remedies." Richards v. Bellmon, 941 F.2d 1015, 1018 (10th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973); see also, Smith, 899 F.2d at 951. The district court did not err in treating the portion of his action which sought expungement of his disciplinary conviction as a habeas action, subject to exhaustion requirements.

Accordingly, we DENY the certificate of appealability, and, as set forth above, AFFIRM IN PART and REVERSE IN PART, and REMAND for further proceedings consistent with this opinion.