F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 2, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 LEN N Y D EA N LO WR Y ,

               Plaintiff-Appellant,                     No. 06-3136
          v.                                            (D. Kansas)
 R. HONEYCUTT, I & I,                          (D.C. No. 05-CV-3430-SAC)
 Hutchinson Correctional Facility
 and LO UIS E. BRUCE, W arden,
 Hutchinson Correctional Facility,

               Defendants-Appellees.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **


      Lenny Dean Lowry, an inmate in the Hutchinson Correctional Facility in

Hutchinson, Kansas who is proceeding pro se, appeals the district court’s decision




      *
        This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).


      **
        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 F ED . R. A PP . P. 34( A )(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
dismissing his 42 U.S.C. § 1983 action sua sponte for failure to state a claim

pursuant to 42 U.S.C. § 1997e(c)(1). W e affirm the district court’s decision.



                                I. BACKGROUND

      M r. Lowry’s claims arise out of a disciplinary proceeding in which prison

officials concluded that he violated Kan. Admin. Reg. § 44-12-314, which

provides that “[n]o inmate shall commit or induce others to commit an act of . . .

sodomy, even with the consent of both parties.” The regulation defines sodomy

as any of the following:

             (A) Oral contact with or oral penetration of the female
             genitalia or oral contact with the male genitalia;
             (B) anal penetration, however slight, of a male or female
             by any body part or object; or
             (C) oral or anal copulation or sexual intercourse betw een
             a person and an animal.

Because M r. Lowry is proceeding pro se, we construe his

filings liberally and examine the record in the light most favorable to him.

Haines v. Kerner, 

, 520-21 (1972); Neal v. Lewis, 

,

1247 (10th Cir. 2005).

      The record indicates that on April 26, 2005, a prison official observed M r.

Lowry and another inmate engaged in sexual activity: the other inmate had “his

erect penis pressed up against inmate Low ry[’s] rectum area.” Rec. doc. 1 attach.

(Disciplinary Report: Hutchinson Correctional facility - Central Unit, Case No.



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05-05-053; dated M ay 5, 2005). According to M r. Lowry’s complaint, the two

men were engaging in “what I consider horseplay which had some sexual

content.” 

see also 

(stating that “I did fondle [the other inmate]

but w e were more hors[]ing around than anything”).

      M r. Lowry told the prison official that no intercourse had taken place, that

the behavior w as consensual, and that he did not want to undergo a rape exam.

Prison officials nonetheless took him to the prison clinic and administered an

examination, which revealed no evidence of intercourse. Again under protest,

officials took M r. Lowry to a hospital emergency room, where he underwent a

formal rape kit examination. During the examination, M r. Lowry alleged, the

defendant Officer Honeycutt laughed and joked and helped a nurse take pictures

of M r. Low ry’s rectum and penis.

      This second examination also revealed no evidence of intercourse.

However, prison officials convicted M r. Lowry of violating Kan. Admin. Reg. §

44-12-314, finding that he had admitted to being engaged in sexual activity. The

prison hearing officer ordered M r. Lowry to pay restitution totaling $672.18— the

fees for the emergency room visit, the rape kit test, and the overtime wages spent

conducting the investigation.

      M r. Lowry then filed this § 1983 action against Officer Honeycutt and

Louis I. Bruce, the W arden of the Hutchinson Correctional Facility. He alleged

violations of the Eighth and Fourteenth Amendments. According to M r. Lowry,


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because his sexual encounter with the other inmate was consensual and because

no penetration occurred, there was insufficient evidence to support his

disciplinary conviction for violating Kan. Admin. Reg. § 44-12-314.

Additionally, he asserted, Officer Honeycutt had falsely stated that M r. Lowry

had admitted to being the victim of a sexual assault. Finally, he alleged, Officer

Honeycutt’s laughing and joking during the examination at the hospital was “the

most degrading, humiliating, and debasing experience I’ve ever had to endure.”

Rec. doc. 1, at 3.

      The district court dismissed M r. Lowry’s complaint for failure to state a

claim. The court reasoned that M r. Lowry had “attache[d] unwarranted

significance to the fact that the physical exam produced no evidence of assault.

That fact alone did not preclude the hearing officer’s finding of guilty of

prohibited sexual activity, particularly given that plaintiff was observed by a

guard engaging in such activity and another guard reported he had admitted

sexual activity.” Rec. doc 4, at 8. (M emorandum and Order, filed M arch 22,

2006). “N or,” the court continued, “does [M r. Lowry] present authority

indicating the negative test result precluded prison officials from charging him for

a medical exam deemed necessary by prison officials.” 

DISCUSSION

      W e review de novo the district court’s dismissal of M r. Lowry’s complaint

for failure to state a claim pursuant to 42 U.S.C. § 1997e(c)(1). See Perkins v.

Kan. Dept. of Corr., 

, 806 (10th Cir. 1999). “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 alleged and it would be futile to give him

an opportunity to amend.” 

whether dismissal is proper, w e

must accept the allegations of the 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.” 

M r. Lowry’s allegations liberally, we read his complaint

as asserting claims for (1) the denial of his due process rights on the grounds that

there was not “some evidence” to support the imposition of disciplinary sanctions

for a violation of K an. Admin. Reg. § 44-12-314, see Superintendent, M ass. Corr.

Inst. v. Hill, 

, 455 (1985); (2) the denial of a Fourteenth Amendment

right to refuse medical treatment; (3) the denial of his Eighth Amendment right to

be free from cruel and unusual punishment; and (4) the denial of his right to equal

protection under the Fourteenth Amendment. Upon review of the record, we

agree with the district court that M r. Lowry’s complaint does not state a cause of

action as to any of these claims.




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      First, as to his due process claim based on a lack of evidence to support the

disciplinary conviction, we note that prison disciplinary convictions must be

supported by “some evidence.” 

. In applying this standard,

we are not required to undertake “[an] examination of the entire record, [an]

independent assessment of the credibility of witnesses or weighing of the

evidence.” M itchell v. M aynard, 

, 1445 (10th Cir. 1996) (internal

quotation marks omitted). “Instead, the relevant conclusion is w hether there is

any evidence that could support the conclusion reached by the disciplinary

board.” 

evidence may be sufficient. 

documents attached to M r. Lowry’s complaint indicate that a

prison guard observed another inmate with his “his erect penis pressed up against

inmate Lowry[’s] rectum area.” Rec. doc. 1 attach. In our view , despite M r.

Lowry’s denials, that statement constitutes some evidence of a violation of Kan.

Admin. Reg. § 44-12-314, which requires “anal penetration, however slight” 

to the allegation that prison officials violated M r. Lowry’s right

to refuse medical treatment by requiring him to submit to a rape examination at

the hospital, we note that prison officials “may compel a prisoner to accept

treatment when [they], in the exercise of professional judgment, deem it necessary

to carry out valid medical or penological objectives.” W hite v. Napoleon, 

, 112 (3rd Cir. 1990). M oreover, “the judgment of prison authorities


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will be presumed valid unless it is shown to be such a substantial departure from

accepted professional judgment, practice or standards as to demonstrate that the

person responsible actually did not base the decision on such judgment.” 

light of prison officials’ legitimate concerns about the health risks of

sexual assault and sexually transmitted diseases, M r. Lowry’s allegations do not

indicate that requiring a rape examination was inconsistent with legitimate

medical and penological objectives

      Third, with regard to his Eighth Amendment claim, M r. Lowry has failed to

allege that he w as subjected to the wanton and unnecessary infliction of pain or

deliberate indifference to his health or safety. See W ilson v. Seiter, 

,

297 (1991).

      Fourth, as to his equal protection claim, M r. Lowry has failed to allege

facts sufficient to demonstrate that he was treated differently than other inmates

and to “overcome a presumption of government rationality.” Brown v. Zavaras,

, 971 (10th Cir. 1995).



                                 III. CONCLUSION

      Accordingly, we AFFIRM the dismissal of M r. Low ry’s claims.

                                 Entered for the Court,


                                 Robert H. Henry
                                 Circuit Judge


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