NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral аrgument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Sandra MARSH, Plaintiff-Appellant,
v.
Tom NEWTON, Warden, Defendant-Appellee.
No. 97-2157.
United States Court of Appeals, Tenth Circuit.
Jan. 30, 1998.
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
ORDER AND JUDGMENT*
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 appeals1 several district court orders entered in her 42 U.S.C. § 1983 litigation challenging thе conditions at the New Mexico Women's Corrections Facility. Upon consideration of the record and the parties' briefs, we affirm.
The district court correctly dismissed plaintiff's claims for injunctive and declaratory relief сhallenging a variety of prison disciplinary and drug testing procedures, holding these claims are barred by the consent decree in Duran v. King, No. 77-721 (D.N.M.), and must, instead, be asserted within that action. See Facteau v. Sullivan,
The district court also did not err in dismissing plaintiff's claims seeking the restoration of good time credits, without prejudice, as unexhausted habeas claims. See Wolff v. McDonnell,
The district court did not abuse its discretion in dismissing as frivolous under 28 U.S.C. § 1915(d),2 see Schlicher v. Thomas,
The district court also did not err in dismissing, for failure to state a claim, see Fed.R.Civ.P. 12(b)(6), plaintiff's allegations as to the disparity between the quality of clothing and shoes, the number of personal hygiene items, and the amount of toilet рaper issued to male and female inmates.
The district court granted defendant summary judgment on plaintiff's remaining claims. We review summary judgment decisions de novo, viewing the record in the light most favorable to the nonmoving party. See, е.g., Sprague v. Thorn Americas, Inc.,
Plaintiff asserted that prison offiсials deprived her of procedural due process when she lost her prison job because of a subsequently dismissed disciplinary report, she was improperly denied visitation because of a disciplinary report, befоre a disciplinary officer had found her guilty of that offense, and she received a minor incident report. Plaintiff, however, failed to establish that these challenged proceedings implicated a liberty interest that would be protected by due process. She did not establish that these proceedings imposed an "atypical and significant hardship ... in relation to the ordinary incidents of prison life," nor that they "inevitably" affected the length of her sentеnce. Sandin v. Conner,
Plaintiff alleged a number of equal protection claims challenging a variеty of prison conditions. The district court granted defendant summary judgment on these claims, holding that plaintiff had failed to allege any personal injury resulting from the purportedly disparate treatment of male and female inmates.
Plaintiff's failure to allege that she suffered an actual injury resulting from the inaccessibility of the law library is fatal to that claim. See Lewis v. Casey,
The gist of plaintiff's remaining equal protection claims is that male inmates confined to prisons operated by the State of New Mexico receive more favorable treatment and programs thаn female inmates who are housed in a correctional facility operated by a private corporation through a contract with the State. Plaintiff specifically alleges disparities in recreational, educational, and vocational opportunities; community-based activities; work, pre-release and prison farm programs; award of good time credits and lump sum awards; access to television; telephone systems; restrictions on visitation; and operation of a snack bar.
"To establish a gender-based claim under the Equal Protection Clause, [plaintiff] must, as a threshold matter, demonstrate that [she has] been treated differently by a state аctor than others who are similarly situated simply because [plaintiff] belong[s] to a particular class."4 Keevan v. Smith,
Plaintiff's general allegations that male inmates receive better opportunities and more favorable treatment in New Mexico facilities than female inmates are insufficient to survive summary judgment. Rather, plaintiff must assert evidence establishing that the particular male inmates to which she refers are similarly situated to herself. That analysis requires consideration of a number of factors, including the size of the prison populations in the facilities to be compared, the average length of sentences the inmates are serving, the inmates' security classifications, the types of crimes for which the inmates have been incarcerated, and any special characteristics. See Keevan,
Plaintiff never initially specified which malе inmates in New Mexico are similarly situated to herself. Accordingly, she did not submit any evidence comparing the factors relevant to determining whether these male inmate populations are similarly situated to plaintiff. Defendаnt, therefore, was entitled to summary judgment on plaintiff's equal protection claims. See Allen,
Lastly, plaintiff asserts claims alleging that the warden, Defendant Newton, took, and caused other prison officials to take, various disсiplinary actions against her in retaliation for her pursuit of protected First Amendment activities, including her pursuit of litigation and administrative grievances, her activity as a "jailhouse lawyer" on behalf of other inmates, and her correspondence with state legislators. See generally Smith v. Maschner,
Plaintiff contends that she has established a triable issue of fact as to defendant's retaliatory motive in light of the timing of the disciplinary actions in relation to her protected conduct. Specifically, plaintiff alleged that, immediately after a conversation with the warden concerning her activities in assisting other inmates in the preparation of legal and administrative matters, plaintiff lost her job in the prison law library, based upon a disciрlinary report that was later overturned. However, because plaintiff does not have a protected interest in providing legal assistance to other inmates, she cannot assert retaliation claims for such activities. See id. at 950.
Moreover, plaintiff has not established a link between her protected First Amendment activity and the disciplinary proceedings she asserts were retaliatory. Because she was unable to establish a triablе issue of fact as to whether defendant took disciplinary actions against her in retaliation for protected First Amendment activity, therefore, the district court did not err in granting defendant's motion for summary judgment.
The judgment of the United States District Court for the District of New Mexico is, therefore, AFFIRMED. The mandate shall issue forthwith.
Notes
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppеl. 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
On appeal, plaintiff does not challenge the district court's decision preсluding her from pursuing this litigation as a class action, dismissing her claims asserted against several state employees in their official capacities, and dismissing her claims against the governor of New Mexico
Further, on appeаl, plaintiff abandons her claims challenging the inadequacy of the prison's facilities for handicapped inmates, the lack of opportunities for women inmates to learn and develop parenting skills, and her challenge to the prison rule requiring women inmates to wear a bra.
Section 1915(d) is now codified at 28 U.S.C. § 1915(e)(2)(B)(I)
For the first time on appeal, plaintiff asserts a vague equal protection challenge to the work release progrаm, arguing that prison authorities find a significant number of work release jobs for male inmates. In her reply brief, she also asserts that her claim challenging the school release program should be considered an equal protеction claim. Absent jurisdictional or manifest error, which is not present here, this court will not address issues raised for the first time on appeal. See Sac & Fox Nation v. Hanson,
We assume, for purposes of this analysis, that Corrections Corporation of America, the private company operating the women's prison, and its employees are state actors. See Richardson v. McKnight,