82 F3d 426 Harris v. Thomas R Dc

82 F.3d 426

Sheddrick HARRIS, Plaintiff-Appellant,
Robert THOMAS, Eddie Geouge, Discipline Hearing Officer;
Page True, Warden; Patrick R. Kane, Director, Northern
Central Region, Bureau of Prisons; Kathy Hawkins, Director,
Bureau of Prisons, Washington, D.C., Defendants-Appellees.

No. 95-3416.
(D.C.No. 95-CV-3494).

United States Court of Appeals, Tenth Circuit.

April 2, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, 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.

Before ANDERSON, BARRETT and MURPHY, Circuit Judges.


BARRETT, Circuit Judge.

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After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.


Sheddrick Harris (Harris), appearing pro se, appeals from the district court's order dismissing his civil rights action brought under Bivens v. Six Unknown Agents of Fed. Bur. of Narc, 403 U.S. 388 (1971) against the five named federal corrections officers sued "in their official capacity for failure to properly train and supervise the other defendants named to this suit." Bivens carved out a damage remedy in federal civil rights actions based on violations of the United States Constitution.


In his pro se complaint, Harris alleged that: on August 14, 1994, while he was incarcerated in federal prison at Atlanta, Georgia, defendant Robert Thomas recommended that an incident report involving Harris be referred to the United States Attorney for prosecution; thereafter he was indicted by a grand jury; a jury trial was held in the District Court for the Northern District of Georgia on May 14-15, 1995, resulting in a not guilty verdict on all charges. Harris further alleged that: thereafter he was transferred to USP Leavenworth, Kansas, where he is presently incarcerated; defendants Eddie Geouge and Page True issued him the same incident report which the jury in Georgia had found him not guilty of; Geouge and True imposed sanctions against him on July 20, 1995, of 42 days of lost good time, 60 days of segregation (hold time) and a higher security level; and, this was in violation of his rights under the Fifth Amendment (double jeopardy), the Eighth Amendment (excessive punishment) and the Fourteenth Amendment (equal protection of the laws). He sought punitive damages from each defendant of $50,000, mental suffering in amount of $50,000 from each defendant, vindictive acts in amount of $50,000 from each defendant, and suffering from time spent in segregation of $1,000 per day.


The district court dismissed Harris' complaint for failure to state a claim for relief, citing to Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir.1994) for the rule that double jeopardy principles apply only to criminal proceedings and they do not bar the punishment of an inmate in prison disciplinary proceedings after acquittal on criminal charges because prison disciplinary proceedings are not part of a criminal prosecution. We agree. See also Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (prison disciplinary proceedings are not part of a criminal prosecution); United States v. McDermott, 64 F.3d 1448, 1454-55 (10th Cir.1995), cert. denied, 116 S.Ct. 930 (1996) (when a criminal prosecution follows the institution of a civil forfeiture proceeding, the double jeopardy claim does not apply); United States v. Bizzell, 921 F.2d 263, 266 (10th Cir.1990) (debarment of defendants in an administrative proceeding barring them from participation in HUD programs did not constitute punishment for purposes of the double jeopardy claims in subsequent criminal proceedings based on the same circumstances).


In support of his Eighth Amendment contention, Harris claimed excessive punishment when he "was place in the hold 5/18/95 one hundred and 110 days and was transferred to another prison and was taken to outside court all of which was a result of this one incident report and should be considered as punishment which plaintiff should be compensated." (Harris' Civil Rights Complaint, p. 3). In support of his Fourteenth Amendment claim, Harris points to the 42 days of lost good time and the 60 days of segregation, together with his higher security level. The district court did not address these contentions.


On appeal2, Harris argues that the district court erred in (1) not permitting him to amend his complaint, and (2) finding that the Double Jeopardy Clause of the Fifth Amendment was not violated when he was subjected to sanctions following the Disciplinary Hearing.


With regard to Harris' contention that the district court erred in denying his motion to amend his complaint, we have reviewed the entire record on appeal. We do not find any motion filed by Harris to amend his complaint or any order of the district court addressing the issue.

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We review dismissal of a complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) de novo, recognizing that we are obliged to construe pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and must accept all well-pleaded allegations of the complaint as true. Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir.1995).


We affirm the district court's dismissal of Harris' complaint for failure to state a double jeopardy claim for relief, and we also affirm the dismissal on the Eighth and Fourteenth Amendment claims for failure to allege specific facts showing such violations. In Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991), we held that "Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Here, Harris has failed to state valid claims under the Eighth Amendment and the Fourteenth Amendment. We are free to affirm a district court even on grounds not relied upon by the court. United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994).


Placing an inmate in segregation does not necessarily violate the Eighth Amendment, providing that conditions of confinement do not involve unnecessary infliction of pain, Bailey v. Shillinger, 828 F.2d 651 (10th Cir.1987), and this applies to administrative segregation, White v. Nix, 7 F.3d 120 (8th Cir.1993), as well as maximum security. Graham v. Willingham, 384 F.2d 367 (10th Cir.1967). Harris did not allege that he was subjected to unnecessary infliction of pain nor did he allege that he was denied food, clothing or medical care. With regard to Harris' Fourteenth Amendment Equal Protection claim, there are no facts alleged relating to an unlawful classification or discrimination. The Equal Protection and Due Process clauses, while not always mutually interchangeable, are not mutually exclusive; discrimination may be so unjustifiable as to be violative of due process. Bolling v. Sharpe, 347 U.S. 497 (1954). Here, Harris has not alleged discrimination. Furthermore, his Equal Protection claim is entirely conclusory. A pro se litigant must be aware of and comply with both procedural and substantive rules of law. Casper v. Commissioner, 805 F.2d 902, 906 n. 3 (10th Cir.1986).




This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of Tenth Cir. R. 36.3


The district court denied Harris leave to proceed in forma pauperis on appeal, finding the appeal to be legally frivolous. We grant Harris leave to proceed in forma pauperis on appeal simply to reach the merits of his claims