FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 8, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    GARY WAYNE RUSSELL,

                Plaintiff-Appellant,

    v.                                                    No. 10-5047
                                              (D.C. No. 4:09-CV-00511-GKF-PJC)
    PAUL LANIER; WILLIAM                                  (N.D. Okla.)
    BURKETT; CYNTHIA FROST,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         Plaintiff Gary Wayne Russell appeals pro se from a district court order

entering summary judgment in favor of the defendants on his claims arising under

42 U.S.C. § 1983. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      Mr. Russell was ordered to undergo treatment at the Oklahoma Forensic

Center (“OFC”) after being adjudicated not guilty by reason of insanity (“NGRI”)

on multiple charges, including illegal possession of a firearm and public

intoxication. He was admitted to OFC on June 12, 2008. After a brief stay in the

admissions unit, he was moved to the NGRI unit, where security is less stringent

and patients generally enjoy greater privileges. A month later, however, he was

transferred back to the admissions unit and his privileges were restricted because

of behavioral problems. OFC officials decided to house him in the admissions

unit because it is more heavily staffed and better equipped to handle patients with

behavioral problems. They maintain that Mr. Russell continued to receive NGRI-

mandated treatment during his stay in the admissions unit.

      Unhappy with his housing assignment, Mr. Russell filed this action in

August 2009 against defendants Paul Lanier, Cynthia Frost, and William Burkett,

employees of OFC. His complaint alleged that his transfer back to the admissions

unit in July 2008 constituted cruel and unusual punishment in violation of the

Eighth Amendment. 1 Specifically, he claimed that his privileges were unduly

restricted while he was in the admissions unit and that he was deprived of

treatment that he should have received as an NGRI patient. In addition,


1
     As of December 2009, when defendants filed their summary judgment
motion, Mr. Russell had been transferred back to the NGRI unit.

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Mr. Russell asserted a claim of deliberate indifference to medical needs based on

the defendants’ alleged refusal to provide treatment for Hepatitis C. He also

accused the defendants of interfering with his legal mail.

      In December 2009, the defendants filed a motion for summary judgment as

to all claims. 2 With respect to Mr. Russell’s lodging assignment, defendants

argued that the decision to house him in the admissions unit was not punitive, but

was based on concern for his safety and that of other patients. Defendants

submitted evidence showing that Mr. Russell exhibited behavioral problems while

he was in the NGRI unit and was determined to be unstable. The defendants

conceded that patients in the admissions unit enjoy fewer privileges, but they

argued that the restrictions placed on Mr. Russell were necessary to address

legitimate safety and security concerns. They also produced evidence showing


2
       In the alternative, defendants requested dismissal under Rules 12(b)(1) &
(6) of the Federal Rules of Civil Procedure. The district court opted to construe
the motion under Rule 56, however, and considered numerous documents
submitted outside the pleadings. See Fed. R. Civ. P. 12(d) (if “matters outside the
pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56”). These documents included
detailed treatment records of OFC medical staff, correspondence between OFC
and the state court judge who ordered Mr. Russell to undergo treatment, and
medical records pertinent to Mr. Russell’s Hepatitis C diagnosis.

       Because of the sensitive nature of the materials, the district court allowed
the defendants to file them under seal, and defendants have filed a motion
essentially seeking to maintain the documents’ sealed status in this court. We
grant that request.



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that Mr. Russell continued to receive the same treatments in the admissions unit

that he had been receiving in the NGRI unit. As for his claim that he is being

denied treatment for Hepatitis C, defendants produced evidence showing that after

he was diagnosed, several doctors, including an infectious-disease specialist,

advised Mr. Russell that he was not a good candidate for treatment due to

underlying medical problems. Finally, defendants produced evidence showing

that Mr. Russell’s claim of mail interference was based on one isolated incident

of Ms. Frost accidentally opening a package from his attorney. Ms. Frost

submitted an affidavit in which she acknowledged her mistake and stated that she

immediately returned the documents to Mr. Russell upon realizing that they were

from his attorney. Mr. Russell did not offer any evidence to rebut the defendants’

contentions.

      The district court granted the defendants’ motion in an opinion and order,

dated April 5, 2010, concluding that Mr. Russell had failed to come forward with

evidence to establish a genuine issue of material fact as to any of his

constitutional claims. As an initial matter, the court noted that Mr. Russell,

having been adjudicated “not guilty,” is not a prisoner, and thus his claims do not

fall within the Eighth Amendment’s scope. It concluded that his status is similar

to that of a pretrial detainee, and therefore proceeded to evaluate his claims under

the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish,

, 537 n.16 (1979) (holding that pretrial detainees are protected under

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the Due Process Clause rather than the Eighth Amendment ). The court explained

that “[t]he determination of whether a condition of pretrial detention amounts to

[unconstitutional] punishment turns on whether the condition is imposed for the

purpose of punishment or whether it is incident to some other legitimate

government purpose.” R. at 64 (citing 

). In this case, the

defendants submitted uncontroverted evidence showing that the decision to house

Mr. Russell in the admissions unit, as opposed to the NGRI unit, was not punitive,

but “was rationally related to the legitimate governmental purpose of insuring

institutional security.” 

They also produced unrebutted evidence

showing that the treatments Mr. Russell received as an NGRI patient were not

affected by his transfer to the admissions unit. Accordingly, the court found no

constitutional deprivation arising out Mr. Russell’s tenure in the more restrictive

ward of OFC.

      With respect to his deliberate indifference-to-medical-needs claim, the

court observed that, generally, “[c]laims of medical negligence in a diagnosis or

choice of therapy are not actionable under § 1983.” 

(citing Green v.

Branson, 

, 1303 (10th Cir. 1997)). As the court noted, unrebutted

medical evidence established that Mr. Russell’s Hepatitis C could not be treated

due to a number of other medical conditions. The court recognized that part of

Mr. Russell’s deliberate indifference claim was based on the fourteen-month

delay between his diagnosis and first appointment with an infectious-disease

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specialist. But it rejected this argument, explaining that “[a] delay in medical

care only constitutes a constitutional violation where the plaintiff can show that

the delay resulted in substantial harm.” 

(citing Oxendine v. Kaplan,

, 1276 (10th Cir. 2001)). Since the infectious-disease specialist

who evaluated Mr. Russell ultimately advised against treatment, the court found

that he had failed to show substantial harm as a result of any delay. Thus, the

defendants were entitled to summary judgment on the deliberate indifference

claim.

         Finally, the court dismissed plaintiff’s claim of mail interference based on

Smith v. Maschner, 

(10th Cir. 1990), in which we rejected a similar

claim stemming from mishandled legal mail. There we held that “[s]uch an

isolated incident, without any evidence of improper motive or resulting

interference with [the plaintiff’s] right to counsel or access to the courts, does not

give rise to a constitutional violation.” 

                                           II.

         “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Garrison v. Gambro,

Inc., 

, 935 (10th Cir. 2005) (quotation omitted). “When applying

this standard, we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.” 

Liberally construing Mr. Russell’s pro se brief, see Van Deelen v. Johnson,

                                           -6-


, 1153 n.1 (10th Cir. 2007), he appears to challenge the district

court’s decision based on his contention that there are material facts in dispute

regarding the reason for his transfer to the admissions unit, the adequacy of his

medical care, and whether he was deprived of his legal mail. Having reviewed

the briefs, the record, and the applicable law, we conclude that Mr. Russell has

not shown any reversible error.

      We therefore AFFIRM the judgment of the district court for substantially

the same reasons stated in its opinion and order, dated April 5, 2010.

      Appellees’ Motion to File An Appendix And To File The Appendix Under

Seal is GRANTED.

                                               Entered for the Court



                                               Timothy M. Tymkovich
                                               Circuit Judge




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