                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       January 19, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court



    JOHN HAD LEY FISHER,

              Plaintiff-Appellant,

     v.                                                   No. 06-7061
                                                   (D.C. No. 05-CV -131-FHS)
    M IKE M ULLIN, W arden; BOBBY                         (E.D. Okla.)
    B OO N E; R ON WA R D ; LEE M ANN;
    KEN YO TT,

              Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before TY M K O VIC H, A ND ER SO N, and BALDOCK , Circuit Judges.




          Plaintiff John H adley Fisher, an O klahoma state inmate proceeding pro se

here as in the district court, appeals the district court’s order granting summary




*
       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)(2); 10th Cir. R. 34.1(G). The case is
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
judgment to defendants on his claims arising under 42 U.S.C. § 1983. W e

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                     Background

      M r. Fisher was transferred to the Oklahoma State Prison (OSP) in 1992 to

serve a life sentence for murder. In early 2002, he was transferred to H Unit

following his disciplinary conviction on charges of possession of marijuana.

According to M r. Fisher, H Unit was also known as “Redline,” and was used

unofficially to punish and coerce prisoners by keeping them in unconstitutionally

harsh conditions of confinement.

      M r. Fisher alleges that in October 2002, a conflict developed between the

prison warden and a prison case manager as the result of a letter sent to the

warden by Fisher’s then-attorney. He maintains that defendants attempted to

question him about the conflict, but he refused. He asserts that defendants kept

him in H Unit until July 2005 in retaliation for refusing to discredit the prison

case manager.

      In his federal law suit, M r. Fisher claimed that defendants violated his

constitutional rights by (1) housing him in H Unit under conditions imposing

atypical and significant hardship (2) in retaliation for exercising his Fifth

Amendment right to remain silent during the investigation concerning the case

manager, (3) denying him copies of cases from circuits other than the Tenth

Circuit, and (4) confiscating and destroying photographs of H Unit sent to him by

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his brother, even though the same photographs w ere permitted when re-sent by his

attorney. 1

       At the district court’s direction, defendants filed a M artinez report. 2 After

denying M r. Fisher’s motion to compel discovery, the district court granted

defendants’ motion for summary judgment. M r. Fisher appeals, arguing (1) the

district court’s entry of summary judgment was improper because discovery had

not been allowed and there existed disputed facts, (2) the district court erred in

denying his claims under the Fifth, Eighth, and Fourteenth Amendments and the

Equal Protection Clause based on his placement in H Unit, and (3) the district

court erred in denying his claims based on access to case law from other circuits

and the initial confiscation of photographs of H Unit.




1
      The parties dispute whether M r. Fisher exhausted his prison grievance
remedies on all of his claims before filing suit, as required by 42 U.S.C.
§ 1997e(a). W e do not resolve this issue because we affirm the district court on
the merits. See Woodford v. Ngo, ___ U.S. ___, 126 S. Ct. 2378, 2392 (2006)
(addressing dismissal under 42 U.S.C. 1997e(c)(2), stating PLRA exhaustion
requirement is not jurisdictional; district court may “dismiss plainly meritless
claims without first addressing what may be a much more complex question,
namely, whether the prisoner did in fact properly exhaust available administrative
remedies”).
2
       M artinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam) (approving
order requiring prison officials to investigate facts surrounding inmate’s civil
rights action to construct an administrative record from which court may
determine jurisdiction and assess frivolity).

                                          -3-
                                 Standards of Review

      “W e review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed. R. Civ. P. 56(c).” Steffey v.

Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (quotation omitted). For

dispositive issues on which the plaintiff will bear the burden of proof at trial, he

must “go beyond the pleadings and designate specific facts so as to make a

show ing sufficient to establish the existence of an element essential to [his] case

in order to survive summary judgment.” Sealock v. Colorado, 218 F.3d 1205,

1209 (10th Cir. 2000) ( quotation omitted). “[E]vidence, including testimony,

must be based on more than mere speculation, conjecture, or surmise.

Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (citation and

quotations omitted).

      W e review a district court’s discovery rulings for an abuse of discretion.

Procter & Gamble Co. v. Haugen, 427 F.3d 727, 742-43 (10th Cir. 2005).

Because M r. Fisher is representing himself, we liberally construe his pleadings;

however, w e do not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

                                 Placement in H Unit

      M ost of M r. Fisher’s claims arose from his placement in H Unit. He first

alleges that his transfer to H Unit was punitive, and therefore he was entitled to

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due-process procedures before and during his placement there. He asserts that the

denial of due process violated his Fourteenth Amendment rights.

      The defendants’ M artinez report includes an affidavit from W arden M ullin

stating, among other things, that there was no such thing as “Redline,” and

further, that H Unit was part of the general population, although it, like many cell

blocks at OSP, was restrictive. In response, M r. Fisher filed affidavits from

himself and ten fellow H-Unit inmates, each stating the number of months he had

been housed there without due process, alleging that H Unit “differ[ed] greatly”

from other cell blocks by imposing “atypical and significant hardship,” and

contending that H Unit was “an administratively created punishment unit to which

is used [sic] in an arbitrary, capricious and malicious fashion by [the prison]

administration.” R. Doc. 25, Affidavits 1 through 11; see also id. Doc. 30

(“declaration” stating same allegations signed by plaintiff and 38 other H Unit

inmates). M r. Fisher argues that the district court was required to accept these

allegations as true when considering defendants’ summary judgment motion.

      To withstand summary judgment, M r. Fisher was required to identify

specific facts to establish his claims concerning H Unit. W e recognize that “a

M artinez report is treated like an affidavit and the court is not authorized to

accept its fact findings if the prisoner has presented conflicting evidence.”

Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992). Nevertheless, a




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“[p]laintiff’s conclusory allegations are insufficient to put a material fact in

dispute.” Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992).

      W e determine that the affidavits M r. Fisher produced in opposition to the

M artinez report failed to “set forth facts that would be admissible in evidence,”

because they presented only conclusory allegations. Hall, 935 F.2d at 1111.

Accordingly, the district court was not required to accept them as true and they

were insufficient to demonstrate that there was a disputed issue of material fact

sufficient to resist summary judgment.

      M r. Fisher next claims that defendants retaliated against him for exercising

his Fifth Amendment right not to answer questions about the prison case manager.

“Prison officials may not retaliate against or harass an inmate because of the

inmate’s exercise of his constitutional rights. However, an inmate claiming

retaliation must allege specific facts showing retaliation because of the exercise of

the prisoner’s constitutional rights.” Fogle v. Pierson, 435 F.3d 1252, 1263-64

(10th Cir. 2006) (quotation omitted), cert. denied, 127 S.Ct. 675, 75 U.S.L.W .

3283 (U.S. Nov. 27, 2006) (No. 06-6669). M r. Fisher’s “allegations of retaliation

must fail because he has presented no evidence that the defendants’ alleged

retaliatory motives were the ‘but for’ cause of the defendants’ actions.” Peterson

v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). M r. Fisher’s placement in H

Unit could not have been in retaliation for his refusal to cooperate in an internal

investigation because he was transferred to H Unit in M arch 2002, and the alleged

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precipitating event in the case-manager controversy did not occur until October

2002. M r. Fisher also has produced no facts to support his claim that his

continued assignment to H Unit w as retaliatory.

      M r. Fisher further contends that he was entitled to due process before being

transferred to H Unit and also periodically while he was there. He asserts that the

conditions in H Unit were similar to those in the administrative segregation unit,

whereby prisoners were denied contact visits, a yard permitting contact with other

inmates, jobs, and programs. He also claims that the conditions of confinement in

H Unit imposed atypical and significant hardship as compared to

general-population cell blocks. He maintains that H Unit was “unquestionably

[the Oklahoma D epartment of Corrections’] harshest and most restrictive unit.”

Aplt. Br. at 26.

      In his affidavit, the warden stated that (1) OSP provided housing primarily

for maximum-security offenders, (2) all inmates were afforded very limited

outdoor exercise, (3) H Unit, Northw est 1, where M r. Fisher was housed, was a

general-population unit, (4) non-contact visiting was imposed on all inmates in all

eight cell blocks of H Unit, as well as to inmates classified as level one and those

in Units D and E, and (5) work assignments w ere available on a very limited basis

and were assigned based on conduct, attitude and an ability to cooperate. R. Doc.

39, Attach. 23 at 1-3.




                                         -7-
      The Supreme Court has held

      that States may under certain circumstances create liberty interests
      which are protected by the Due Process Clause. But these 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 D ue Process Clause of its own force, nonetheless
      imposes atypical and significant hardship on the inmate in relation to
      the ordinary incidents of prison life.

Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Defendants do not dispute

M r. Fisher’s claims about the conditions in H Unit. In fact, they confirm those

claims. But M r. Fisher did not produce facts showing that H Unit’s conditions

were harsher, or even different, than those in other comparable units in the

maximum-security prison. Therefore, he was not entitled to due process before or

during his placement at H Unit.

      For his last claim relating to H Unit, M r. Fisher asserts that his equal

protection rights w ere violated when he was transferred to and retained at H Unit,

while other prisoners with worse institutional records were not. He argues on

appeal that defendants’ responses to his discovery requests would have

established that other prisoners were treated more favorably than he.

      “Equal protection is essentially a direction that all persons similarly

situated should be treated alike.” Fogle, 435 F.3d at 1260 (quotation omitted).

M r. Fisher does not allege that he was treated differently than other inmates

because he belongs to a suspect class; therefore, he must show that he was

similarly situated to the other inmates and “that the difference in treatment was

                                          -8-
not ‘reasonably related to legitimate penological interests.’” Id. at 1261 (quoting

Turner v. Safley, 482 U.S. 78, 89 (1987)).

      The placement of prisoners within OSP is in part discretionary. See Okla.

Stat. tit. 57, § 138(D); see also Wilson v. Jones, 430 F.3d 1113, 1116 (10th Cir.

2005) (describing Oklahoma’s statutory classification system as having both

objective and subjective/discretionary components), cert. denied, 127 S. Ct. 158

(2006). The numerous subjective factors contributing to the classification of

prisoners demonstrates the implausibility of M r. Fisher’s argument that “there are

no relevant differences between [him] and other inmates that reasonably might

account for their different treatment.” Fogle, 435 F.3d at 1261 (quotation

omitted). For the same reason, the discovery M r. Fisher requested about other

prisoners’ institutional records would not have proven his equal protection claim.

Consequently, the district court properly rejected the equal protection claim

without allowing discovery.

                 Access to Court and Confiscation of Photographs

      M r. Fisher complains that the prison law library did not provide him with

copies of cases from circuits other than the Tenth Circuit, which defendants do

not dispute 3 . He argues that he needs access to those cases because the Tenth

Circuit often cites to them. To state a claim for denial of access to the courts, an



3
       He has abandoned on appeal his claim that he was denied access to the law
library.

                                         -9-
inmate must show that he suffered an injury caused by “shortcomings in the

library or legal assistance program.” Lewis v. Casey, 518 U.S. 322, 351 (1996);

accord Wardell v. Duncan, 470 F.3d 954, (10th Cir. Nov. 30, 2006). M r. Fisher

has not asserted that the lack of other-circuit authority “hindered his efforts to

pursue a legal claim,” Lewis, 518 U.S. at 351. His hope of finding case support

for future appeals is insufficient. Therefore, summary judgment on this claim was

correct.

      Finally, we consider M r. Fisher’s claim that his rights were violated when

prison officials confiscated and destroyed photographs of H Unit sent to him by

his brother. He concedes that he received identical photographs from his

then-attorney. He has not identified any injury from the initial confiscation, let

alone the concrete “injury in fact” required to establish standing. Opala v. Watt,

454 F.3d 1154, 1157 (10th Cir. 2006), cert. denied, 127 S.Ct. 738, 75 U.S.L.W .

3235 (Dec. 4, 2006) (No. 06-548). Consequently, M r. Fisher, as the party seeking

to invoke federal jurisdiction, has not met his burden to establish standing. See

id. This claim is dismissed.

                                      Conclusion

      M r. Fisher’s motion to supplement the record on appeal is denied as moot.

The district court granted his motion to proceed without prepayment of costs and

fees. He is reminded that he is obligated to continue making partial payments

until the entire fee has been paid.

                                         -10-
      The judgment of the district court is AFFIRM ED as to all claims except the

one relating to the photographs; that claim is dismissed for lack of subject matter

jurisdiction.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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