Filed: Oct. 23, 2013
Latest Update: Mar. 28, 2017
Summary: JANE DOE;rights, including filing internal prison grievances or initiating lawsuits.courts dismissal of this claim.2, On appeal, Sherratt asks us to consider the question of whether the, UDCs requirement that an inmate admit guilt to be accepted into the SOTP, violates his Fifth Amendment rights.
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 23, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
WILLIAM HENRY SHERRATT,
Plaintiff-Appellant, No. 13-4061
v. (D.C. No. 2:10-CV-01091-TS)
UTAH DEPARTMENT OF (D. of Utah)
CORRECTIONS; UTAH STATE
PRISON; UTAH CONTRACT
ATTORNEYS; STEVEN TURLEY,
Warden; LARRY BUSSIO, Deputy
Warden; UTAH ATTORNEY
GENERAL; BILLIE CASPER,
Grievance Coodinator; TOM
ANDERSON, Hearing Officer; GREG
PEAY, Hearing Office Director;
ROBYN WILLIAMS, Deputy
Director; MIKE HADDON, Deputy
Director; TOM PATTERSON,
Director; MARK SHURTLEFF, Utah
Attorney General; DALE WRIGHT,
Deputy Warden; WAYNE
FREESTONE, Contract Attorney;
MIKE THOMPSON, Assistant Utah
Attorney General; MICHELLE I.
YOUNG, Utah Assistant Attorney
General; DAVID AUGERHOFFER,
Contract Attorney; RON WILSON,
Captain; SHARON D'AMICO;
BOARD OF PARDONS AND
PAROLE; CLAY CAWLEY, Captain;
JOHN DOE, Utah Assistant Attorney
General; JANE DOE; FNU STRONG,
Watch Commander; CRAIG BUCH,
Programming Director; ROBERT
JENSEN, Captain; FNU HART,
Sergeant; JOHN DOE (2), Utah
Assistant Attorney General; JOHN
DOE (3), Utah Assistant Attorney
General; JESSIE GALLEGOS, BOP
Member; CLARK HARMS, BOP
Member; ROBERT YEATES, BOP
Member; CURTIS GARNER, BOP
Chairman; DENNIS SORENSON,
Warden; ANNA LEE CARLSON;
FNU RASMUSSEN, Officer;
PATRICK LNU, Sergeant,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges. **
William Sherratt, a Utah state prisoner, appeals the district court’s
dismissal of his 42 U.S.C. §§ 1983 and 1985 civil rights complaint against several
officials of the Utah Department of Corrections (UDC) and Utah Attorney
General’s Office. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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I. Background
In a 200-page complaint, Sherratt alleges that the defendants violated his
First, Fourteenth, and Eighth Amendment rights in six different ways and that the
defendants conspired to retaliate against him for exercising his First Amendment
rights in twenty-three different ways. And he challenges the constitutionality of
Utah’s indeterminate sentencing scheme.
The district court dismissed several defendants charged only in their
supervisory capacities. The court also dismissed several of Sherratt’s claims as
vague, lacking standing, barred by Utah’s four-year statute of limitations, or not
based on constitutionally recognized rights. Finally, the district court dismissed
Sherratt’s challenge to Utah’s indeterminate sentencing scheme. See Sherratt v.
Turley, No. 2:10-cv-01091-TS, slip. op. (D. Utah Mar. 25, 2013).
On appeal, Sherratt asserts the district court erred in dismissing his claims.
In particular, he asserts that (1) defendants retaliated against him for filing
grievances and threatening to file suit by denying his family visitation clearances
and depriving him of his legal work; (2) defendants conspired to deny him access
to the courts and retaliated against him for exercising his First Amendment rights;
(3) defendants deprived him of his constitutional right to provide legal assistance
to other inmates; (4) defendants deprived him of due process by not allowing him
to participate in a sex offender treatment program (SOTP); and (5) Utah’s
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indeterminate sentencing scheme is unconstitutional. Sherratt also asserts several
new claims on appeal impliedly attacking the validity of his sentence.
II. Discussion
We review de novo the district court’s dismissal for failure to state a claim
under 42 U.S.C. § 1915(e)(2)(B)(ii). See Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). In determining whether dismissal is proper, we accept the
allegations 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.
We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) as
we do for Federal Rule of Civil Procedure 12(b)(6). Id. As such, the complaint
must present “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp v. Twombly,
550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action” accompanied by “mere conclusory statements”
offered as evidence are not sufficient to state a claim. Ashcroft v. Iqbal,
556 U.S.
662, 678 (2009). Because Sherratt proceeds pro se, we construe his filings
liberally. Whitney v. New Mexico,
113 F.3d 1170, 1173–74 (10th Cir. 1997). We
will not, however, supply additional factual allegations to “round out a plaintiff’s
complaint or construct a legal theory” on his behalf. Id.
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A. Supervisory Claims, Standing, and Statute of Limitations
Sherratt’s over 200-page complaint raises a number of claims directed to
supervisory personnel, other inmates, and conduct that occurred years before he
filed the complaint. The district court properly dismissed these claims.
First, the dismissal of the complaint directed to supervisory personnel was
correct. Sherratt alleges that prison officials in the chain of command violated his
constitutional rights by denying his grievances. But personal participation in a
violation of a plaintiff’s constitutional rights is an essential allegation in a Section
1983 claim. See Smith v. Maschner, 899 F.2d 940, 950–51 (10th Cir. 1990).
Denial of a grievance or failure to properly investigate or process grievances,
without any connection to the violation of constitutional rights alleged by the
plaintiff, is not sufficient to establish personal participation for purposes of a
Section 1983 claim. See, e.g., Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th
Cir. 2009); Brown v. Cline, 319 F. App’x 704, 705–06 (10th Cir. 2009).
Accordingly, the district court properly dismissed Sherratt’s claims against
individual defendants charged in their supervisory capacities.
Second, the district court properly dismissed Sherratt’s claims alleged on
behalf of other prisoners or the general prison population because Sherratt lacked
standing to bring them. See Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th
Cir. 1990) (“[T]o the extent a complaint concerns ‘inmates’ rather than the
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plaintiff himself, it is dismissable for failure to allege the plaintiff’s standing to
proceed.” (citations omitted)).
Third, the district court properly dismissed Sherratt’s claims occurring four
or more years before the filing of the complaint under Utah’s four-year residual
statute of limitations. See Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995).
B. Retaliation Claims
Sherratt also asserts that prison officials retaliated against him after he filed
grievances and threatened to sue for retaliation. Prison officials may not retaliate
against or harass inmates because of the inmate’s exercise of his constitutional
rights, including filing internal prison grievances or initiating lawsuits. Fogle v.
Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006); Maschner, 899 F.2d at 947–48.
But an inmate is “not inoculated from the normal conditions of confinement
experienced by convicted felons serving time in prison merely because he has
engaged in protected activity.” Peterson v. Shanks,
149 F.3d 1140, 1144 (10th
Cir. 1998). The plaintiff must therefore allege specific facts showing that “but
for the retaliatory motive, the incidents to which he refers, including the
disciplinary action would not have taken place.” Id. (quotations omitted).
Sherratt maintains that prison officials retaliated against him by prohibiting
his sister from attending a music recital he organized in prison. Sherratt’s sister
was denied admittance to the recital on November 1, 2008, but Sherratt nowhere
indicates what grievances he had previously filed that provoked this action or
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their proximity in time to the alleged retaliatory action. His mere allegations of
retaliation, without more, are insufficient to show a retaliatory motive. Cf.
Maschner, 899 F.2d at 948.
Sherratt next contends that prison officials singled him out from other
prisoners with similar amounts of legal work and forced him to dispose of the
legal work accumulated in his cell in retaliation for filing grievances and
threatening to file suit. Sherratt states that this occurred “because I told [the
official] I would sue for retaliation.” Aplt. Br. at 11. We first note that
restriction of legal materials in a prison cell is reasonable in light of security and
fire hazards. See Green v. Johnson, 977 F.2d 1383, 1390 (10th Cir. 1992). Even
assuming that Sherratt was singled out from other inmates with similar amounts
of legal work, there is no indication that these events occurred in close proximity
to Sherratt’s statements. Sherratt’s conclusory allegation that these events
occurred because he threatened to sue for retaliation are insufficient to state a
claim. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (“[T]he court
need accept as true only the plaintiff’s well-pleaded factual contentions, not his
conclusory allegations.” (citations omitted)).
Finally, Sherratt alleges that defendants conspired to retaliate against him
for exercising his First Amendment rights. But Sherratt’s conclusory allegations
that defendants conspired to retaliate against him for exercising his First
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Amendment rights are insufficient to state a claim of retaliation. Accordingly, we
dismiss these claims.
C. Right to Provide Legal Assistance to Inmates
Sherratt asserts that several defendants violated his First Amendment right
to access the courts by preventing him from assisting other inmates with their
legal work. But a prisoner does not have a constitutionally protected right to
provide legal representation to other inmates. Maschner, 899 F.2d at 950. And,
given the number of Sherratt’s filings, it is unclear how his inability to help
prisoners with their legal work has prevented his access to the courts. See Munz
v. Nix, 908 F.2d 267, 268 n.3 (8th Cir. 1990). Accordingly, we affirm the district
court’s dismissal of this claim.
D. Denial of Privileges
Next, Sherratt argues that the Board of Pardons and Parole
unconstitutionally deprived him of a liberty interest under the Fourteenth
Amendment by preventing him from participating in SOTP, an optional
rehabilitative program for sex offenders. 1 Completion of SOTP does not
necessarily result in an earlier parole date, but an inmate who successfully
completes the program may be eligible for an earlier rehearing date.
1
The UDC offers offenders who meet certain requirements the choice of
participating in SOTP. This program is completely voluntary. Utah Code Ann.
§ 64-9b-4(1) (2013).
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Contrary to Sherratt’s assertions, the option to participate in a rehabilitative
program like SOTP is a privilege, not a right. See Doe v. Heil, 2013 WL
4504772, at *7 (10th Cir. 2013); Termunde v. Cook,
684 F. Supp. 255, 259 (D.
Utah 1988). Thus, no particular process is constitutionally due or required
regarding Sherratt’s placement in SOTP. See Templeman v. Gunter,
16 F.3d 367,
371 (10th Cir. 1994) (“Since [plaintiff] was not deprived of any liberty to which
he was entitled, no particular process was constitutionally due or required,
regardless of state law. Nor does denying process, however mandatory under
state law, itself deny liberty.”).
Sherratt also claims that his inability to participate in SOTP
unconstitutionally lengthened the term of his prison sentence. Sherratt’s
allegations are insufficient to state a claim for several reasons. First, Sherratt was
in fact admitted into the SOTP program, but chose not to participate because one
of the requirements to participate is the admission of guilt. 2 See Sherratt v.
2
On appeal, Sherratt asks us to consider the question of whether the
UDC’s requirement that an inmate admit guilt to be accepted into the SOTP
violates his Fifth Amendment rights. Notwithstanding Sherratt’s failure to raise
this issue in the district court, we note the Supreme Court has previously held that
a prison rehabilitative program with 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 (2002). Sherratt has not
shown that his term of prison was actually lengthened due to his inability to
participate in SOTP. As such, any inability or delay in his participation in SOTP
does not implicate his Fifth Amendment rights.
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Turley, No. 2:10-cv-01091-TS, slip. op. add. D at 26 (D. Utah Mar. 25, 2013).
Second, as stated above, completion of SOTP does not necessarily result in an
earlier parole date. Finally, any purported interference with the length of
Sherratt’s parole is insufficient to state a claim under Section 1983 because there
is no constitutional right to be released before the expiration of a valid sentence.
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979);
accord Lustgarden v. Gunter,
966 F.2d 552, 555 (10th Cir. 1992). And neither
has the State of Utah created a liberty interest entitling prisoners to federal
constitutional protection. See Malek v. Haun,
26 F.3d 1013, 1016 (10th Cir.
1994).
Accordingly, we affirm the district court’s decision to dismiss Sherratt’s
claims regarding his inability to participate in the SOTP program and any
resulting effect on the length of his sentence.
E. Utah’s Indeterminate Sentencing Scheme
Sherratt challenges the district court’s dismissal of his challenge to Utah’s
indeterminate sentencing scheme. But we have upheld Utah’s sentencing scheme
against constitutional challenge. Straley v. Utah Bd. of Pardons, 582 F.3d 1208,
1212 (10th Cir. 2009). Accordingly, we affirm the district court.
F. Other Claims
Finally, Sherratt argues for the first time on appeal three new theories: (1)
new evidence shows that “false facts” were manufactured wholesale by the
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judiciary to deprive him of his right to access its tribunals or to wrongfully
convict him; (2) his conviction itself violated the Equal Protection Clause of the
Fourteenth Amendment because Mormon citizens are not charged for statutory
rape; and (3) his Sixth Amendment rights were violated based on ineffective
assistance of counsel prior to his trial.
In general, we refuse to consider new issues on appeal; the decision to take
up questions for the first time on appeal is left primarily to this court’s discretion.
Singleton v. Wulff, 428 U.S. 106 (1976). Even if Sherratt did not waive the
claims he now brings on appeal, we dismiss these claims as barred by Heck v.
Humphrey,
512 U.S. 477 (1994), because each necessarily implies the invalidity
of Sherratt’s conviction and sentence. See, e.g., Abella v. Rubino,
63 F.3d 1063,
1064–65 (11th Cir. 1995) (false evidence); Roberts v. O’Bannon, 199 F. App’x
711, 713–14 (10th Cir. 2006) (violation of Equal Protection Clause in charging
decision); Holly v. Gotcher, 427 F. App’x 634, 635–36 (10th Cir. 2011)
(ineffective assistance of counsel).
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III. Conclusion
Accordingly, we AFFIRM the order of the district court dismissing
Sherratt’s claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Appellant’s motion
for oral argument is DENIED.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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