                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JUL 19 2001
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 CHARLES MATELSKY,

           Plaintiff - Appellant,
 vs.                                                    No. 00-7097
                                                  (D.C. No. 99-CV-324-S)
 PAULA GUNN; BRIAN OWEN;                                (E.D. Okla.)
 STEPHEN KAISER,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Plaintiff-Appellant Charles Matelsky, an inmate appearing pro se, appeals

from the district court’s order dismissing his complaint as frivolous. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         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.
                                   Background

      Charles Matelsky suffers from depression. To treat this condition, he

receives small doses of medication from a prison psychiatrist on an as-needed

basis. On several occasions, Mr. Matelsky has saved these doses and then taken

large amounts of medication at once. He had been informed that hoarding his

prescription medication was a form of substance abuse that would result in his

exclusion from the prison’s voluntary substance abuse program, the Therapeutic

Community (“TC Program”).

      In April 1999, Mr. Matelsky’s depression worsened and he became

unresponsive and incoherent. Paula Gunn, the TC Program’s Substance Abuse

Counselor, suspected that Mr. Matelsky was abusing his medication and attempted

to confront him, but he was not receptive. In a final attempt to address the

problem, Ms. Gunn arranged a confrontation meeting with Mr. Matelsky and other

staff members. When Mr. Matelsky began to leave the meeting, Ms. Gunn

informed him that walking out would be considered a voluntary resignation from

the TC Program. He left anyway.

      To contest his exclusion from the Program, Mr. Matelsky filed this action

under 42 U.S.C. § 1983, naming Stephen Kaiser (the Warden), Brian Owen (the

Addictions Treatment Manager), and Ms. Gunn as defendants, and seeking

monetary damages and injunctive and declaratory relief. Mr. Matelsky’s


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complaint alleged that his exclusion from the Program violated his constitutional

rights under the Eighth Amendment and under the Due Process and Equal

Protection Clauses of the Fourteenth Amendment. He also asserted a pendent

state claim for intentional infliction of emotional distress. Defendants’ filed a

motion to dismiss the complaint as frivolous, see 28 U.S.C. § 1915(e)(2), or for

failure to state a claim, see Fed. R. Civ. P. 12(b)(6), which the court converted to

a motion for summary judgment. See Fed. R. Civ. P. 12(b). The court then

dismissed the complaint as frivolous and overruled “all pending motions . . . as

moot.” Doc. 28 at 7. This appeal followed.



                                     Discussion

      We construe the district court’s order as dismissing Mr. Matelsky’s

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and review solely for an abuse

of discretion. 1 McWilliams v. State of Colo., 121 F.3d 573, 574-75 (10th Cir.


      1
         Although the district court cited § 1915(e) as the basis for its disposition,
it is arguable that the court acted pursuant to § 1915A(b)(1). See Doc. 28 at 7
(declaring that “all pending motions [were] overruled as moot,” presumably
including defendants’ motion to dismiss under § 1915(e)(2)). We have “not yet
determined whether a dismissal pursuant to § 1915A . . . is reviewed de novo or
for abuse of discretion.”   Plunk v. Givens , 234 F.3d 1128, 1130 (10th Cir. 2000).
Because the court cited § 1915(e)(2), and because the dismissal occurred
subsequent to service and, in fact, subsequent to the preparation of a court-
ordered Martinez report, see Doc. 17, it is unreasonable to construe the dismissal
as entered pursuant to § 1915A.     See 28 U.S.C. § 1915A(a) (providing for review
and dismissal “before docketing, if feasible or, in any event, as soon as

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1997). A complaint is frivolous if it lacks any arguable basis in law or fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon consideration, we agree

with the district court’s conclusion that each of Mr. Matelsky’s four claims was

frivolous.

       Because Mr. Matelsky has no constitutionally protected liberty interest in

participating in the voluntary TC Program, his due process claim must fail. See

Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that inmates’ protected

liberty interests “will be generally limited to freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force, nonetheless imposes

atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life”). Mr. Matelsky’s exclusion from the Program has neither

restrained his liberty in excess of his sentence, cf. Washington v. Harper, 494

U.S. 210, 221-22 (1990), nor imposed “atypical and significant hardship[s] . . . in

relation to the ordinary incidents of prison life.” Conner, 515 U.S. at 484; see

also Klos v. Haskell, 48 F.3d 81, 89 (2d Cir. 1995) (holding that prisoner had no

liberty interest in remaining in voluntary boot camp program, despite fact that

completion of program qualifies inmate for early release), cited with approval in




practicable after docketing”). In any event,     our result would be the same under
either standard of review.

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Conner, 515 U.S. at 483. 2 Although the state may create liberty interests not

directly protected by the Constitution, Mr. Matelsky has cited no Oklahoma

statutes or prison regulations that might give rise to such an interest. Cf. Conner,

515 U.S. at 483-84. Mr. Matelsky’s substantive due process claim is equally

meritless. Aplt. Br. at 4 (alleging denial of substantive due process in that “Paula

Gunn was not adequately qualified as a Substance Abuse Counselor, and was

guilty of malpractice, negligence, and fraud”).

      As to the equal protection claim, Mr. Matelsky has failed to allege any

differential treatment – much less differential treatment of a constitutional

magnitude – nor has he alleged a deprivation of any fundamental right. His

conclusory allegation that “[o]bviously, if the Plaintiff is claiming that he was



      2
        Mr. Matelsky’s brief to this court argues that his termination from the
Program constituted a disciplinary action in that his “Earned Credit Level was
dropped to the lowest level (Level 1) such that he no longer received earned
credits.” Aplt Br. at 4; see also Okla. Stat. tit. 57, § 138(D) (West 1999)
(defining Class level 1 as including “inmates refusing job, education, or program
assignments, inmates removed from job, education, or program assignments due
to misconduct or nonperformance, or inmates subject to disciplinary action,” and
providing that inmates in Class 1 receive “0 Credits per month”). Given the
explicit disclaimer in Mr. Matelsky’s complaint that he is “not . . . complaining
about loss of earned credits in this action,” Doc. 1 at 4a, as well as the district
court’s failure to address the issue, see Doc. 28, the significance of the
petitioner’s earned credit level is not properly before the court. Smith v. Sec’y of
N.M. Dep’t of Corr., 50 F.3d 801, 814 n. 22 (10th Cir. 1995). Cf. Templeman v.
Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (holding that a prisoner has no
constitutionally-based liberty interest in a particular “prison classification . . .
because [an inmate] is not entitled to a particular degree of liberty in prison”).

                                        -5-
discriminated against, he is claiming that he was treated differently than other

inmates,” is insufficient. Obj. to Def. Mot. to Dismiss, Doc. 18 at 10. In the

absence of any specific allegations of differential treatment, the Equal Protection

claim is patently inadequate under any of the three equal protection theories –

fundamental rights, suspect classification, or “class of one” – and was properly

dismissed as frivolous. Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000) (“Our cases have recognized successful equal protection claims brought by

a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.”) (emphasis added); Heller v. Doe, 509 U.S. 312, 319-320

(1993) (“[A] classification neither involving fundamental rights nor proceeding

along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is

a rational relationship between disparity of treatment and some legitimate

governmental purpose.”) (citations omitted, emphasis added).

      Third, “it has been established that prison officials violate the Eighth

Amendment only when they are deliberately indifferent to the serious medical

needs of prisoners in their custody.” Oxendine v. Kaplan, 241 F.3d 1272, 1276

(10th Cir. 2001) (emphasis added) (internal quotations, alterations, and citations

omitted). Limiting our review to the face of the complaint, Mr. Matelsky has not

alleged a serious medical need to participate in the TC Program, nor has he


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alleged that the defendants refused to supply him with necessary medication.

Without such critical allegations, his Eighth Amendment claim is clearly

frivolous.

      Finally, Mr. Matelsky’s pendent state claim is barred by 42 U.S.C. §

1997e(e), which provides that no “civil action may be brought by a prisoner . . .

for mental or emotional injury suffered while in custody without a prior showing

of physical injury.” As Mr. Matelsky has failed to allege that he sustained any

physical injury, his pendent claim is frivolous as well.

      For the foregoing reasons, the district court’s order is AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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