Deberry v. Davis ( 2012 )


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  •                                                                      FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
    
                                                                   February 9, 2012
                       UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court
    
    
    
     FREDERICK D. DEBERRY,
    
                 Plaintiff-Appellant,
                                                           No. 11-1152
     v.                                       (D.C. No. 1:10-CV-00725-CMA-BNB)
                                                            (D. Colo.)
     BLAKE R. DAVIS; J. FOX; D.
     SPROUL,
    
                 Defendants-Appellees.
    
    
                                         ORDER *
    
    
    Before KELLY, HARTZ, and HOLMES, Circuit Judges.
    
    
          Frederick Deberry is currently incarcerated at the United States
    
    Penitentiary-Administrative Maximum in Florence, Colorado, commonly known
    
    as “Florence ADX” or simply “ADX.” Proceeding pro se, 1 he appeals from the
    
    
          *
                  This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
    and Tenth Circuit Rule 32.1.
    
          After examining the appellate record, this three-judge panel 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 case is therefore ordered submitted without oral argument.
          1
                 Because Mr. Deberry is proceeding pro se, we construe his filings
    liberally. See Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007) (per curiam); Van
                                                                        (continued...)
    district court’s order dismissing his due-process and equal-protection claims
    
    against Federal Bureau of Prison (“BOP”) employees Blake Davis, J. Fox, and D.
    
    Sproul (collectively, “defendants”). We dismiss as moot Mr. Deberry’s claims
    
    insofar as he seeks equitable relief. As for his claims for damages based upon the
    
    purported constitutional violations, we conclude that Mr. Deberry’s appeal is
    
    frivolous. Accordingly, we deny Mr. Deberry’s motion to proceed in forma
    
    pauperis on appeal and dismiss his appeal pursuant to 28 U.S.C. §
    
    1915(e)(2)(B)(i).
    
                                    I. BACKGROUND
    
          ADX has a stratified system of housing inmates known as the “step-down
    
    program.” If an inmate meets certain criteria, he is eligible to be removed from
    
    the general prison population (“General Population”) and to progress through
    
    various “units” that feature decreasing levels of restriction: Intermediate (J-Unit),
    
    Transitional (K-Unit), and Pre-Transfer (D/B Unit). An inmate who successfully
    
    progresses through the Pre-Transfer Unit may be transferred out of ADX to
    
    another, less restrictive BOP facility.
    
          In March 2009, while housed in the Pre-Transfer Unit, Mr. Deberry was
    
    involved in a physical altercation with another prisoner. Pending resolution of his
    
    disciplinary charges, he was removed from the Pre-Transfer Unit and placed back
    
    
    
          1
          (...continued)
    Deelen v. Johnson, 
    497 F.3d 1151
    , 1153 n.1 (10th Cir. 2007).
    
                                              2
    in General Population. Mr. Deberry admitted to being involved in the altercation
    
    but insisted that he acted in self-defense. In April 2009, a Disciplinary Hearing
    
    Officer (“DHO”) found him guilty of “Disruptive Conduct,” but on appeal, the
    
    Regional Director determined that there had been a procedural error in the
    
    disciplinary proceeding and remanded the matter to the DHO. On rehearing, the
    
    DHO set aside his previous finding of guilt and expunged the incident report
    
    against Mr. Deberry.
    
          Mr. Deberry then asked to be moved back into the step-down program
    
    (specifically, into the Pre-Transfer Unit) and to be given credit for time spent in
    
    General Population. His request was denied. In a memorandum, Mr. Deberry’s
    
    unit manager, Mr. Sproul, acknowledged that the incident report had been
    
    expunged but nevertheless recommended that Mr. Deberry remain in General
    
    Population for at least a year before being placed back in the step-down program.
    
    Mr. Fox, the associate warden at ADX, summarily approved the recommendation.
    
          In November 2009, Mr. Deberry was placed back in the step-down
    
    program. However, he was not immediately restored to his previous status in the
    
    Pre-Transfer Unit. Rather, at that time, he was placed in the Intermediate Unit.
    
          In March 2010, Mr. Deberry filed the present lawsuit, claiming violations
    
    of due process, equal protection, and double jeopardy, and seeking declaratory,
    
    injunctive, and monetary relief. The defendants filed a motion to dismiss, and the
    
    magistrate judge, in a thoughtful and reasoned opinion, recommended granting it.
    
    
                                              3
    The district court issued its own opinion with respect to Mr. Deberry’s claims,
    
    adopting and affirming the magistrate judge’s recommendation, and dismissing
    
    Mr. Deberry’s claims with prejudice. It also denied his request for a temporary
    
    restraining order or a preliminary injunction as moot. Mr. Deberry filed a timely
    
    notice of appeal in April 2011. The district court denied Mr. Deberry leave to
    
    proceed on appeal in forma pauperis, finding that “[his] appeal is not taken in
    
    good faith because [Mr. Deberry] has not shown the existence of a reasoned,
    
    nonfrivolous argument on the law and facts in support of the issues raised on
    
    appeal.” R., Vol. 1, at 416 (Order Denying Leave to Proceed on Appeal Pursuant
    
    to 28 U.S.C. § 1915 and Fed. R. App. P. 24, dated May 6, 2011).
    
          Months later, in August 2011, the defendants notified us that Mr. Deberry
    
    has since been transferred back into General Population due to an incident that
    
    occurred on March 27, 2011, in which Mr. Deberry allegedly directed abusive
    
    behavior toward a BOP staff member. 2 The defendants state that this transfer is
    
    “separate and independent of the instant case” because it is “based . . . on new,
    
    distinct facts.” Notice, at 1–2, filed Aug. 19, 2011.
    
    
    
    
          2
                  By that time, it appears that Mr. Deberry had actually progressed
    from the Intermediate Unit to the Pre-Transfer Unit—that is, to the step-down
    unit from which he had originally been removed and to which his complaint
    requested that he be restored. See Notice, filed Aug. 19, 2011 (Attach. 1, Incident
    Report, dated Mar. 27, 2011) (noting that the misconduct leading to Mr.
    Deberry’s removal to General Population occurred while he was in the “D-B”
    (i.e., Pre-Transfer) Unit).
    
                                             4
                                       II. DISCUSSION
    
                                                A.
    
           Before reaching the merits of Mr. Deberry’s appeal, we must be satisfied
    
    that we have subject-matter jurisdiction over the dispute. McKissick v. Yuen, 
    618 F.3d 1177
    , 1196 (10th Cir. 2010) (“[E]very federal appellate court has a special
    
    obligation to satisfy itself . . . of its own jurisdiction . . . .” (quoting Steel Co. v.
    
    Citizens for a Better Env’t, 
    523 U.S. 83
    , 94 (1998)) (internal quotation marks
    
    omitted)). As part of that inquiry, we must ensure that a live case or controversy
    
    remains before us. As the Supreme Court recently reminded, “It is a basic
    
    principle of Article III that a justiciable case or controversy must remain ‘extant
    
    at all stages of review, not merely at the time the complaint is filed.’” United
    
    States v. Juvenile Male, 
    131 S. Ct. 2860
    , 2864 (2011) (quoting Arizonans for
    
    Official English v. Arizona, 
    520 U.S. 43
    , 67 (1997)). “[W]hen events outside the
    
    litigation make relief impossible,” a case is moot, Jordan v. Sosa, 
    654 F.3d 1012
    ,
    
    1023 (10th Cir. 2011) (quoting 13C Charles A. Wright, Arthur R. Miller &
    
    Edward H. Cooper, Federal Practice and Procedure § 3533.3.1, at 56 (3d ed.
    
    2008)) (internal quotation marks omitted), and a federal court must dismiss for
    
    lack of subject-matter jurisdiction.
    
           The mootness inquiry requires that we look to the specific relief requested
    
    by a defendant. See id. at 1024 (“Constitutional mootness is grounded in the
    
    requirement that ‘any case or dispute that is presented to a federal court be
    
    
                                                 5
    definite, concrete, and amenable to specific relief.’” (emphasis in original)
    
    (quoting 15 James W. Moore & Martin H. Redish, Moore’s Federal Practice §
    
    101.90, at 101–237 (3d ed. 2010))). Here, Mr. Deberry has requested declaratory
    
    relief (a declaration that his due-process and equal-protection rights have been
    
    infringed), injunctive relief (restoration of his prior status in the Pre-Transfer
    
    Unit), and monetary damages. We conclude that the requests for declaratory and
    
    injunctive relief are moot, but that the request for damages is not.
    
          Mr. Deberry’s subsequent transfer back into General Population in March
    
    2011, for reasons independent of this case, moots his request for injunctive relief.
    
    Even if we were to grant the relief that Mr. Deberry asks for, it would have “no
    
    effect in the real world.” Jordan, 654 F.3d at 1030 (quoting Abdulhaseeb v.
    
    Calbone, 
    600 F.3d 1301
    , 1311 (10th Cir. 2010)) (internal quotation marks
    
    omitted). Mr. Deberry would remain in General Population for independent
    
    reasons, and we are not situated to rule on the propriety of that later transfer. The
    
    same holds true for his request for declaratory relief. Because of the subsequent
    
    transfer, any declaratory judgment in Mr. Deberry’s favor would not “affect[] the
    
    behavior of the defendant[s] toward [him]” and would be, for that reason, purely
    
    advisory. Id. at 1025 (quoting Rio Grande Silvery Minnow v. Bureau of
    
    Reclamation, 
    601 F.3d 1096
    , 1110 (10th Cir. 2010)) (internal quotation marks
    
    omitted). It goes without saying that, as a federal court, we are not in the
    
    business of rendering such feckless judgments.
    
    
                                               6
          Nonetheless, a viable controversy remains before us because Mr. Deberry
    
    has requested damages. “[B]y definition claims for past damages cannot be
    
    deemed moot.” Lippoldt v. Cole, 
    468 F.3d 1204
    , 1217 (10th Cir. 2006) (alteration
    
    in original) (quoting Taxpayers for the Animas-La Plata Referendum v.
    
    Animas-La Plata Water Conservancy Dist., 
    739 F.2d 1472
    , 1479 (10th Cir. 1984))
    
    (internal quotation marks omitted). Thus, Mr. Deberry’s request “for
    
    compensatory damages remains a live case or controversy on appeal,” and we are
    
    required to turn to the merits of his claims. Id.; see Utah Animal Rights Coal.,
    
    
    371 F.3d 1248
    , 1257–58 (10th Cir. 2004) (holding that a request even for
    
    “nominal damages of one dollar” satisfies Article III’s case or controversy
    
    requirement and “require[s]” the court to render a decision “on the merits”).
    
                                             B.
    
          Mr. Deberry has abandoned the double-jeopardy claim that he urged below,
    
    so two claims remain on appeal: (1) that the defendants violated his procedural-
    
    due-process rights under the Fifth Amendment when they failed to immediately
    
    return him to the Pre-Transfer Unit following expungement of the incident report,
    
    and (2) that those same actions violated his Fifth Amendment right to equal
    
    protection 3 because other similarly situated prisoners were not treated like Mr.
    
    
    
          3
                 The Fourteenth Amendment’s equal-protection guarantee applies to
    the federal government through the Fifth Amendment’s Due Process Clause. See
    Jurado-Gutierrez v. Greene, 
    190 F.3d 1135
    , 1152 (10th Cir. 1999) (citing
    Schweiker v. Wilson, 
    450 U.S. 221
    , 226 & n.6 (1981)).
    
                                             7
    Deberry. 4
    
          Both the magistrate judge and the district court (hereinafter “the court”)
    
    
    
          4
                  The government contends that Mr. Deberry has not challenged on
    appeal the district court’s decision to grant qualified immunity to defendants and,
    therefore, that issue is waived. See Aplee. Br. at 20 (“Nor has [Mr. Deberry]
    made any argument opposing the granting of qualified immunity to the
    Defendants. Consequently, these issues have been waived.”). In this regard, the
    government cites some of our cases that have concluded that a litigant waives an
    issue by not adequately presenting it in his opening brief. See id. (citing, for
    example, Herra-Castillo v. Holder, 
    573 F.3d 1004
    , 1010 (10th Cir. 2009)). We
    think, however, that the government’s waiver argument is misguided. In
    addressing the qualified-immunity issue, the magistrate judge set forth the two
    elements of the qualified-immunity test. Specifically, the magistrate judge stated,
    “When analyzing the issue of qualified immunity, I consider two factors. I must
    determine whether the plaintiff has sufficiently alleged a violation of a statutory
    or constitutional right. In addition, I must inquire whether the right was clearly
    established at the time of the violation.” R., Vol. 1, at 264. As the magistrate
    judge was legally authorized to do, see, e.g., Pearson v. Callahan, 
    555 U.S. 223
    ,
    236 (2009) (“The judges of the district courts and the courts of appeals should be
    permitted to exercise their sound discretion in deciding which of the two prongs
    of the qualified immunity analysis should be addressed first in light of the
    circumstances in the particular case at hand.”), he resolved the qualified-
    immunity issue by addressing solely the first inquiry—relating to the existence of
    a constitutional violation vel non—determining that Mr. Deberry had not
    established that his constitutional rights were violated. In other words, the
    magistrate judge permissibly elided the second inquiry, which focuses on
    whether, even assuming the Constitution was violated, defendants would be
    entitled to qualified immunity because the law was not clearly established at the
    time of the purported violations. The district court adopted the magistrate judge’s
    constitutional analysis. On appeal, Mr. Deberry vigorously contends that his
    constitutional due-process and equal-protection rights were violated and that the
    district court erred in holding to the contrary. By doing so, Mr. Deberry in fact
    has challenged the only element of the qualified-immunity test that the district
    court actually determined. The government’s contention that he waived the
    qualified-immunity issue is thus misguided. Insofar as the government is
    suggesting that Mr. Deberry was obliged to address the second, clearly-
    established-law inquiry—even though the district court did not do so—or suffer
    the pain of waiver as to the qualified-immunity issue, we reject that suggestion.
    
                                             8
    thoroughly and thoughtfully analyzed Mr. Deberry’s claims. With respect to the
    
    due-process claim, the court correctly identified the key question: whether Mr.
    
    Deberry has a “liberty interest” in avoiding transfers from the step-down program
    
    to General Population at ADX. It analyzed that question under our governing
    
    precedent, Estate of DiMarco v. Wyoming Department of Corrections, Division of
    
    Prisons, 
    473 F.3d 1334
    , 1342 (10th Cir. 2007), and considered the four factors
    
    that DiMarco sets forth. Although the court reasoned that defendants here
    
    arguably did not have a legitimate penological justification for refusing to restore
    
    Mr. Deberry to his previous rung on the step-down ladder, it found that the
    
    conditions in General Population were not extreme and that Mr. Deberry’s
    
    placement there neither increased the duration of his confinement nor was
    
    indeterminate. The court also carefully parsed the Supreme Court’s and our
    
    precedent on prisoner liberty interests and concluded that Mr. Deberry’s transfer
    
    from the Pre-Transfer Unit to General Population did not “impose[] atypical and
    
    significant hardship on [him] in relation to the ordinary incidents of prison life.”
    
    Wilkinson v. Austin, 
    545 U.S. 209
    , 222–23 (2005) (quoting Sandin v. Conner, 
    515 U.S. 472
    , 484 (1995)) (internal quotation marks omitted). We believe that the
    
    court’s analysis and conclusions are eminently sound.
    
          With respect to his equal-protection claim, Mr. Deberry’s complaint alleged
    
    only that his treatment was “different than that provided [to] similarly situated
    
    prisoners” and that “in all other cases, once a finding of guilt was set aside, other
    
    
                                              9
    prisoners were immediately restored to their prior status.” R., Vol. 1, at 66 (Am.
    
    Prisoner Compl., filed May 20, 2010). The court found this to be merely
    
    conclusory and lacking in factual basis. It pointed to our decision in Fogle v.
    
    Pierson, where we found “clearly baseless” the “claim that there are other
    
    inmates who are similar in every relevant respect.” 
    435 F.3d 1252
    , 1261 (10th
    
    Cir. 2006) (quoting Templeman v. Gunter, 
    16 F.3d 367
    , 371 (10th Cir. 1994))
    
    (internal quotation marks omitted). We further noted in Fogle that a prisoner’s
    
    “claim that there are no relevant differences between him and other inmates that
    
    reasonably might account for their different treatment is not plausible or
    
    arguable.” Id. (quoting Templeman, 16 F.3d at 371) (internal quotation marks
    
    omitted). We agree with the court that Mr. Deberry did not carry his burden,
    
    even at the more generous motion-to-dismiss stage, of sufficiently alleging an
    
    equal-protection violation.
    
                                   III. CONCLUSION
    
          For the foregoing reasons, we DISMISS AS MOOT Mr. Deberry’s claims
    
    to the extent that he requests equitable relief. Regarding his damages claims for
    
    the purported violations of his due-process and equal-protection rights, like the
    
    district court, we conclude that Mr. Deberry has not demonstrated “the existence
    
    of a reasoned, nonfrivolous argument on the law and facts in support of the issues
    
    raised on appeal,” Watkins v. Leyba, 
    543 F.3d 624
    , 627 (10th Cir. 2008) (quoting
    
    McIntosh v. U.S. Parole Comm’n, 
    115 F.3d 809
    , 812 (10th Cir. 1997)) (internal
    
    
                                             10
    quotation marks omitted). Accordingly, we DENY his motion for leave to
    
    proceed on appeal in forma pauperis.
    
          Furthermore, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), we DISMISS Mr.
    
    Deberry’s appeal as frivolous. And this dismissal will constitute a “strike” for
    
    purposes of § 1915(g). See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility,
    
    
    175 F.3d 775
    , 781 (10th Cir. 1999) (“If we dismiss as frivolous a prisoner’s
    
    appeal of an action for which the district court entered judgment for defendant,
    
    the dismissal of the appeal counts as one strike.”). It will “count[] against [Mr.
    
    Deberry] from the date of the Supreme Court’s denial or dismissal of a petition
    
    for writ of certiorari, if [Mr. Deberry] file[s] one, or from the date when the time
    
    to file a petition for writ of certiorari expire[s], if he [does] not.” Hafed v. Fed.
    
    Bureau of Prisons, 
    635 F.3d 1172
    , 1176 (10th Cir. 2011). We remind Mr.
    
    Deberry that this § 1915(e)(2)(B)(i) dismissal does not relieve him of the
    
    obligation to pay in full the appellate filing fee for the instant matter. See Kinnell
    
    v. Graves, 
    265 F.3d 1125
    , 1129 (10th Cir. 2001) (“The district court correctly
    
    dismissed Kinnell’s complaint under § 1915(g). Accordingly, we DENY leave to
    
    proceed ifp in this court and DISMISS this appeal. Deberry is reminded that the
    
    dismissal of his appeal does not relieve him of the responsibility to pay the
    
    appellate filing fee in full.”); see also Hudson v. Mason, 445 F. App’x 139, 141
    
    (10th Cir. 2011); Tuttamore v. Lappin, 429 F. App’x 687, 689 (10th Cir. 2011);
    
    
    
    
                                              11
    Gutierrez v. Torres, 416 F. App’x 764, 767 (10th Cir. 2011).
    
    
    
                                         ENTERED FOR THE COURT
    
    
                                         Jerome A. Holmes
                                         Circuit Judge
    
    
    
    
                                           12