                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       June 26, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    H A RO LD D EA N H O RN SB Y,

             Plaintiff-Appellant,

     v.                                           Nos. 05-5201 & 05-5222
                                               (D.C. No. 04-CV-919-HDC-PJC)
    JU STIN JO N ES, * D irector; R ON                   (N.D. Okla.)
    W AR D; M ELIND A G UILFOYLE;
    LIND SEY SHA RP; M AR TY
    SIRM ON S; AR T LIGH TLE;
    C HA RLIE A RN O LD ; LIN D A
    LA ZELLE; K EV IN PIN K ER TON,
    GERALD DY KES; RICK BO YETT;
    N O RM A BU LLO CK ; and D O RETHA
    C LA RK ,

             Defendants-Appellees.



                            OR D ER AND JUDGM ENT **


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.


*
      On October 27, 2005, Justin Jones became the Director of the Oklahoma
Department of Corrections. In accordance with Rule 43(c)(2) of the Federal
Rules of Appellate Procedure, M r. Jones is substituted in his official capacity for
Ron W ard, who remains in his individual capacity.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 36.3.
          These are companion appeals in plaintiff-appellant Harold D ean Hornsby’s

pro se prisoner civil rights case. Docket No. 05-5201 is an appeal from the

district court’s judgment in favor of defendants-appellees on Eleventh

Amendment grounds and for failure to state a claim. Docket No. 05-5222 is an

appeal from the district court’s order denying Hornsby’s motion to vacate the

judgment. Although the district court erred in applying Eleventh Amendment

immunity to Hornsby’s equitable claims, that error was harmless because Hornsby

failed to state a legally viable claim for relief. Accordingly, we affirm in both

appeals.

                                     B ACKGROUND

          Hornsby is an inmate at Oklahoma’s R. B. “Dick” Connor Correctional

Center, a medium security prison. In December 2004, Hornsby filed a 42 U.S.C.

§ 1983 complaint against various prison officials and employees in their

individual and official capacities, asserting due process, equal protection, and

right-to-petition claims. Hornsby sought monetary, declaratory, and injunctive

relief.

          The district court screened Hornsby’s complaint and ordered it dismissed,

ruling that the Eleventh Amendment barred suit against defendants-appellees in

their official capacities and that Hornsby failed to state a claim against




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defendants-appellees in their individual capacities. 1 See 28 U.S.C.

§ 1915(e)(2)(B); id. § 1915A. On October 6, 2005, the district court entered

judgment in favor of defendants-appellees. Three weeks later, Hornsby moved to

vacate the judgment. Hornsby also filed a notice of appeal, designating the

judgment. The district court construed the motion to vacate as seeking relief

under Fed. R. Civ. P. 60(b) and summarily denied it. Hornsby then filed a notice

of appeal designating the order denying his motion to vacate.

                                    D ISCUSSION

                 I. Appeal from Judgm ent (Docket No. 05-5201)

                                 Standard of Review

      “W e review de novo the district court’s decision to dismiss this case on

Eleventh Amendment grounds and for failure to state a claim.” Harris v. Owens,

264 F.3d 1282, 1287 (10th Cir. 2001); see also Perkins v. Kansas Dep’t of Corr.,

165 F.3d 803, 806 (10th Cir. 1999). “D ismissal of a pro se complaint for failure

to state a claim is proper only where it is obvious that the plaintiff cannot prevail

on the facts he has alleged and it would be futile to give him an opportunity to

amend.” Perkins, 165 F.3d at 806. “In determining whether dismissal is proper,




1
      The dismissal was with prejudice only as to the claims against
defendants-appellees in their official capacities. The claims against
defendants-appellees in their individual capacities were dismissed without
prejudice. Despite the dismissal without prejudice, Hornsby did not file a motion
to amend under Fed. R. Civ. P. 15(a).

                                         -3-
we accept the allegations in the complaint as true and construe those allegations

and any reasonable inferences therefrom in the light most favorable to Plaintiff.”

French v. Adams County Detention Ctr., 379 F.3d 1158, 1159 (10th Cir. 2004).

Because Hornsby proceeds pro se, we liberally construe his complaint. Id.

                           Eleventh Amendment Immunity

      The Eleventh Amendment provides that “the Judicial power of the United

States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State.” U.S.

Const. amend. XI. Immunity is available when suits seeking damages are brought

directly against a State, Cornforth v. Univ. of Okla. Bd. of Regents, 263 F.3d

1129, 1132 (10th Cir. 2001), or when a state official is sued in his or her official

capacity, Ruiz v. M cDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). But suits

seeking damages from state officials in their individual capacities, or suits

seeking prospective injunctive or declaratory relief against state officers, are not

barred by the Eleventh Amendment, Cornforth, 263 F.3d at 1132; Robinson v.

Kansas, 295 F.3d 1183, 1188 (10th Cir. 2002).

      Consequently, the district court erred to the extent it dismissed “[a]ll claims

against Defendants in their official capacities . . . based on Eleventh Amendment

immunity.” Hornsby v. Ward, No. 04-CV-919-HDC-PJC, slip op. at 10

(N.D. Okla. Sept. 21, 2005) (dismissal order). The district court should have

applied the Eleventh A mendment only to H ornsby’s damages claims against

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defendants-appellees in their official capacities. Hornsby’s equitable claims were

not subject to the Eleventh Amendment bar. Nevertheless, reversal is not

warranted if Hornsby failed to plead a viable claim for equitable relief.

See FRCP 61 (prescribing harmless error analysis). W e, therefore, proceed to

determine whether Hornsby’s equitable claims, as well as Hornsby’s claims for

monetary relief against the defendants-appellees in their individual capacities, are

legally cognizable.

                                     Due Process

      Hornsby alleged that his due process rights were violated when

defendants-appellees (1) subtracted good-time credits based upon the

recommendation of a single hearing officer, rather than a disciplinary committee;

(2) segregated him from the general prison population; (3) required that he

“secure two 30-day work evaluations in order to be eligible for” good-time

credits, Compl. at 16; (4) failed to assign him work; and (5) provided inadequate

legal materials and violated his “right to assist other inmates” in challenging their

confinement, id. at 17.

      Regarding the revocation of good-time credits, “a state prisoner’s § 1983

action is barred (absent prior invalidation)— no matter the relief sought (damages

or equitable relief), no matter the target of the prisoner’s suit (state conduct

leading to conviction or internal prison proceedings)— if success in that action

would necessarily demonstrate the invalidity of confinement or its duration.”

                                          -5-
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Because Hornsby seeks the

restoration of good-time credits on the grounds of past procedure, his claim is not

cognizable under § 1983. See Wilkinson, 544 U.S. at 82 (indicating that a

prisoner’s claim, which w ould necessarily spell speedier release, “lies at the core

of habeas corpus” and displaces § 1983 (quotation omitted)).

      As for Hornsby’s segregation away from the general prison population, due

process is implicated only if he is subjected to a restraint that imposes an

“atypical and significant hardship . . . in relation to the ordinary incidents of

prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (quotation omitted).

Hornsby alleged that he “has been segregated . . . for over 120 days,” and that

inmates in the general population have greater access to the leisure and law

libraries, “may immediately go on sick call,” have greater job opportunities, and

“are not given ice cream for not being violent.” Compl. at 6. 2 W e conclude that

these disparities are not so onerous as to implicate due process protections. See

Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996) (indicating that

administrative segregation does not impose an atypical and significant hardship




2
       Hornsby does not allege that the conditions of his confinement differ in any
way from other segregated inmates. W e assume, without deciding, that a due
process claim can be advanced without such a comparison. See Hatch v. District
of Columbia, 184 F.3d 846, 851 (D.C. Cir. 1999) (noting that “[t]he central
difficulty in determining whether segregative confinement imposes atypical and
significant hardship on the inmate is” deciding what part of the prison population
to compare conditions with).

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if it simply restricts privileges available to inmates in the general population);

Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (determining that six months

of administrative segregation was not atypical compared with the general prison

population, even though segregated inmates did not receive clean clothing, linen,

or bedding as often as required; could leave their cells only three to four times a

week, rather than seven; were denied outside recreation; could not attend

educational or religious services; and were served smaller food portions). 3

      Regarding Hornsby’s allegation that he must “secure two 30-day work

evaluations” to be eligible for good-time credits, even though prison policy

establishes eligibility “30-days following date of misconduct,” Compl. at 16, we

discern no basis on which to deviate from the rule that a prison official’s “failure

to adhere to administrative regulations does not equate to a constitutional

violation.” Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993).




3
       Gaines v. Stenseng, 292 F.3d 1222 (10th Cir. 2002), does not control our
due process analysis, as that case involved disciplinary segregation and lacked
allegations describing the ordinary incidents of prison life. In contrast,
M r. Hornsby’s allegations relate to administrative segregation. Furthermore, he
has provided information regarding the ordinary conditions of prison life,
enabling us to decide at this stage of the proceedings that the conditions of his
administrative segregation did not impose an “atypical and significant hardship on
[him] in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at
484.

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      As for Hornsby’s allegation that he was denied work, there is “no

constitutional obligation to provide an inmate w ith employment, even if a statute

or regulation creates such an interest.” Penrod, 94 F.3d at 1407.

      Hornsby’s final due process claims concern the adequacy of the prison’s

legal materials and his purported right to provide legal assistance to other

inmates. Hornsby failed, however, to allege that he suffered any prejudice as a

result of inadequate legal resources, see Lewis v. Casey, 518 U.S. 343, 351 (1996)

(holding that an inmate alleging the denial of meaningful court access must

establish not only the inadequacy of legal materials available to him, but also that

the alleged shortcomings hindered his efforts to pursue a legal claim), and he has

no constitutional right to provide legal assistance to other inmates, see Shaw v.

M urphy, 532 U.S. 223, 228 (2001); Smith v. M aschner, 899 F.2d 940, 950

(10th Cir. 1990).

      W e conclude that the district court did not err in ruling that Hornsby failed

to plead a viable due process claim.

                                  Equal Protection

      Hornsby alleged that his equal protection rights were violated because

similarly situated inmates were not (1) “so arbitrarily administratively

segregated” from the general population; (2) required to complete “two 30-day

work evaluations” to be eligible for good-time credits; and (3) required to w ork

for free or deprived of work. Compl. at 17.

                                         -8-
      Because Hornsby did not claim a fundamental right or differential treatment

based on a suspect classification, he was required to allege that his treatment was

not reasonably related to some legitimate penological purpose. See Templeman v.

Gunter, 16 F.3d 367, 371 (10th Cir. 1994). Hornsby cannot contend that his

placement in administrative segregation was unreasonable, given that prison

officials have considerable discretion in their placement decisions. See Fogle v.

Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006). And he failed to allege that his

work situation or the condition on his eligibility for good-time credits lacked a

rational basis.

      W e conclude that the district court did not err in ruling that Hornsby failed

to plead a viable equal protection claim.

                          Right to Petition the Government

      Hornsby alleged that defendants-appellees interfered with his right to

petition by (1) failing to provide adequate legal materials; (2) “restoring Plaintiff

his LIBERTY in general population once Habeas A ction is filed and then again

depriving Plaintiff of his LIBERTY once the Habeas Action is DISM ISSED,”

Compl. at 11; (3) failing to respond to his grievances, id. at 19; and (4) engaging

in unspecified misconduct.

      The constitutional right to petition the government for redress of grievances

includes a reasonable right of access to the courts. Hudson v. Palmer, 468 U.S.

517, 523 (1984). As we have already noted, Hornsby did not allege any prejudice

                                            -9-
in pursuing court access, and therefore, he cannot state a constitutional violation.

Indeed, Hornsby’s “invocation of the judicial process indicates that the prison has

not infringed his First Amendment right to petition the government for a redress

of grievances.” Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). And

an inmate’s rights are not per se compromised by the prison’s refusal to entertain

his grievances. Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991).

      Hornsby also complained that he was punished for assisting other inmates

in challenging the legality of their confinement, given a “one year grievance

restriction” for invoking the prison’s emergency grievance process, and

“retaliated against . . . in this same manner, and worse, . . . because the

Defendants do not want Plaintiff to inquire” about his level one classification and

removal from drug and parole programs. Compl. at 19. Although prison officials

may not retaliate against an inmate because of the inmate’s exercise of the right

to petition, Fogle, 435 F.3d at 1263-64, the inmate must allege specific facts

“showing retaliation because of the exercise of . . . constitutional rights,” id. at

1264 (quotation omitted). Hornsby cannot meet these requirements.

      First, Hornsby had no constitutional right to provide legal assistance to

other inmates, and therefore, could lawfully have been punished for doing so. See

Shaw, 532 U.S. at 228; Smith, 899 F.2d at 950. Second, Hornsby’s own

allegations show that he was given a grievance restriction for abusing the

emergency grievance process, rather than in retaliation for any protected activity.

                                          -10-
See Compl. at 12-13. And third, Hornsby’s vague and conclusory allegations of

preventative retaliation are insufficient to plead a claim for relief, even affording

his pro se complaint a liberal construction. See Northington v. Jackson, 973 F.2d

1518, 1521 (10th Cir. 1992).

      As with the due process and equal protection claims, we conclude that the

district court did not err in ruling that Hornsby failed to plead a viable

right-to-petition claim. And since Hornsby has not suggested any amendments

that could save these claims, we affirm the district court’s judgment.

          II. Appeal from Post-Judgm ent O rder (Docket No. 05-5222)

      Under Fed. R. Civ. P. 60(b), the district court may relieve a party from a

final judgment

      for the following reasons: (1) mistake, inadvertence, surprise, or
      excusable neglect; (2) newly discovered evidence which by due
      diligence could not have been discovered in time to move for a new
      trial under Rule 59(b); (3) fraud (whether heretofore denominated
      intrinsic or extrinsic), misrepresentation, or other misconduct of an
      adverse party; (4) the judgment is void; (5) the judgment has been
      satisfied, released, or discharged, or a prior judgment upon which it
      is based has been reversed or otherwise vacated, or it is no longer
      equitable that the judgment should have prospective application; or
      (6) any other reason justifying relief from the operation of the
      judgment.

W e review the denial of a 60(b) motion for abuse of discretion. See Price v.

Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). Rule 60(b) relief “is

extraordinary and may only be granted in exceptional circumstances.”

Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).

                                          -11-
          In his motion, Hornsby argued that (1) he was denied notice and an

opportunity to be heard; (2) the Eleventh Amendment had no bearing to the extent

he sought declaratory and injunctive relief; and (3) either his complaint was

legally adequate as pleaded or he should be allowed “to correct jurisdictional

deficiencies” by adding new claims. M ot. to Vacate at 7. W e have previously

held, however, that the sua sponte dismissal provisions in 28 U.S.C.

§ 1915(e)(2)(B) and § 1915A(b) do not require notice and an opportunity to

respond. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (28 U.S.C.

§ 1915(e)(2)(B)); Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000)

(28 U .S.C . § 1915A (b)). A s for Hornsby’s Eleventh Amendment argument, we

conclude that while the district court should have corrected its erroneous

application of immunity to Hornsby’s equitable official-capacity claims, that error

was harmless, given that Hornsby’s complaint was devoid of a viable claim for

relief. Finally, Hornsby’s offer to “correct jurisdictional deficiencies” by adding

new claims would not have addressed the inadequacy of the existing claims for

relief.

          Consequently, we discern no reversible error in the district court’s order

denying post-judgment relief.




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                                 C ONCLUSION

      W e AFFIRM the district court’s judgment and its order denying the motion

to vacate.

                                                 Entered for the Court


                                                 M ichael R. M urphy
                                                 Circuit Judge




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