                                                                          FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 1, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 JOE JERRY HARRISON,

               Plaintiff-Appellant,                      No. 12-7025
          v.                                            (E.D. of Okla.)
 DEBBIE MORTON, ROBERT KING,                 (D.C. No. CV-11-00043-RAW-SPS)
 ROBERT EZELL, and SERGEANT
 WILSON,

               Defendants-Appellants.


                            ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Joe Jerry Harrison, an Oklahoma state prisoner proceeding pro se,

challenges an order of the district court dismissing Harrison’s complaint brought

pursuant to 42 U.S.C. § 1983. Harrison was convicted of a prison disciplinary




      *
         This order and judgment is not binding precedent except under the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 with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         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.
violation in a proceeding which he claims violated the Due Process Clause of the

Fourteenth Amendment.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

dismissal of Harrison’s claims.

                                  I. Background

      Harrison is an inmate in custody of the Oklahoma Department of

Corrections (ODOC) at the Davis Correctional Facility (DCF). Harrison is

serving an 85% sentence, which means that under Oklahoma law, he is ineligible

for parole and cannot earn good time credits until he has served 85% of his

sentence. 1 On May 15, 2010, ODOC Unit Manager Robert King conducted a

shakedown of Harrison’s cell and found a sharpened ten-inch piece of wood

hidden in a light fixture. 2 Harrison was not allowed to observe the search.

      Harrison was charged with Possession/Manufacture of Contraband, a Class

X misconduct offense. On May 21, 2010, Harrison was given an offense report, a

staff statement, and a photocopy of a picture of the sharpened stick.

      On May 24, 2010, Harrison appeared at a disciplinary hearing conducted by

Sergeant Wilson, the DCF Disciplinary Hearing Officer. Harrison and Sgt.


      1
        Okla. Stat. tit. 21, § 13.1. Harrison will have served 85% of his sentence
and become eligible for earned credits in 2018.
      2
         Harrison claimed he did not know the object was in the light fixture and
did not place it there. He also argued that when he was transferred to the cell, he
requested to have it searched but was denied.

                                        -2-
Wilson were the only individuals at the hearing. Harrison complains that the

actual evidence was not present at the hearing, only a poor-quality photograph.

He also claims he was not allowed to confront his accuser or call witnesses on his

behalf. But the Investigator’s Report, which Harrison signed, indicated he did not

want to present witnesses. In addition, an ODOC special report writer reviewed

the audio recording of the hearing and stated in an affidavit that Harrison did not

ask to confront his accuser or request the presence of any live witnesses at the

hearing, nor did he seek to introduce any documentary evidence. Harrison was

found guilty and penalized with the loss of 365 earned credits, 90 days on Level

1, 30 days in segregation, and mandatory security points. Harrison did not

actually lose any earned credits because, as discussed previously, he is currently

ineligible to earn good time credits until 2018.

      Harrison administratively appealed his disciplinary conviction, arguing he

was denied due process at his disciplinary hearing. DCF Warden Robert Ezell

reviewed and affirmed Harrison’s conviction, finding Harrison received due

process. He provided Harrison with a memo responding to his claims. Harrison

then appealed his conviction to the ODOC’s Administrative Review Authority

(ARA). The ARA declined to review Harrison’s appeal, stating that because

Harrison did not lose any earned credits as a result of his disciplinary conviction,

it was unable to undertake a due process review of his conviction.




                                         -3-
      Harrison then filed suit in federal court under § 1983, seeking damages and

declaratory and injunctive relief for the alleged denial of his rights to due process

and equal protection. Defendant Debbie Morton of the ARA filed a motion for

summary judgment, and the other defendants filed a motion to dismiss Harrison’s

complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. The district court granted both motions. This appeal followed. 3

                                  II. Discussion

      We review de novo the district court’s ruling on a motion to dismiss for

failure to state a claim. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th

Cir. 2007). “We must accept all the well-pleaded allegations of the complaint as

true and must construe them in the light most favorable to the plaintiff.” Id.

(quoting David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.

1996)). But we also must consider whether the allegations in the complaint are

plausible. Id.

      Because Harrison is proceeding pro se, we will construe his pleadings

liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But Harrison

still has the duty to allege sufficient facts to serve as the basis for his claims. Id.


      3
         Before considering the merits of Harrison’s claims on appeal, we note
that in response to the two briefs filed separately by Morton and the other
defendants, Harrison filed two reply briefs. After being informed of Federal Rule
of Appellate Procedure 28(c)’s rule limiting an appellant to a single reply brief,
Harrison filed a motion asking us to consider both briefs. Although we note
Harrison repeats many of his arguments in both briefs, we grant his motion.

                                          -4-
In the absence of sufficiently specific allegations, it is not the court’s duty to

assume the role of advocate for the pro se litigant. Id.

      A. Timeliness of Harrison’s § 1983 Claims

      Harrison’s first claim is that the district court misapplied the law by

holding his § 1983 claims were premature under the Heck doctrine. Heck v.

Humphrey, 512 U.S. 477, 487 (1994). Heck held that a prisoner’s claim for

damages is not cognizable under § 1983 if a judgment in the plaintiff’s favor

would imply the invalidity of his conviction or sentence. Id. A prisoner can

evade this prohibition only by showing his conviction or sentence has been

overturned or otherwise invalidated. Id. This rule is also applicable to prison

disciplinary convictions. Edwards v. Balisok, 520 U.S. 641, 643 (1997). As

Harrison did not show his prison disciplinary conviction had been invalidated, the

district court found his § 1983 claims were barred by Heck.

      Harrison argues the district court’s decision ignores Muhammad v. Close,

540 U.S. 749 (2004) (per curiam). Muhammad addressed the applicability of

Heck and Edwards to a § 1983 suit challenging a prisoner’s segregation prior to a

disciplinary hearing where he was acquitted of the charged offense and thus lost

no earned credits. Id. at 751. Muhammad held Heck does not bar a prisoner’s

§ 1983 suit when a favorable verdict would not affect his conviction or the

duration of his sentence. Id. at 751–52.




                                           -5-
      In reaching this holding, the Court clarified “that the incarceration that

matters under Heck is the incarceration ordered by the original judgment of

conviction, not special disciplinary confinement for infraction of prison rules.”

Id. at 751 n.1. Because the petitioner in Muhammad lost no good-time credits as

a result of the challenged action, his § 1983 suit “could not therefore be construed

as seeking a judgment at odds with his conviction or . . . time to be served in

accordance with the underlying sentence.” Id. at 754–55. Stating its holding

another way, the Court found that because the petitioner raised no claim on which

habeas relief could have been granted, “Heck’s favorable termination requirement

was inapplicable.” Id. at 755.

      Harrison claims Heck does not bar his claims in light of Muhammad, but he

misinterprets that decision. Muhammad held Heck is inapplicable only when a

prisoner’s § 1983 suit does not threaten his “conviction or the duration of his

sentence.” Id. at 751 (emphasis added). In Butler v. Compton, 482 F.3d 1277,

1280 (10th Cir. 2007), we held the conviction that matters under Muhammad and

Heck is the conviction tied “to the conduct alleged in the § 1983 action.” The

conduct Harrison challenges relates to his disciplinary conviction, not his original

criminal conviction. Harrison is correct that his § 1983 suit does not threaten the

duration of his underlying sentence, but it does threaten the validity of his

disciplinary conviction. Thus it would appear Muhammad does not bar the

application of Heck to Harrison’s § 1983 claims.

                                         -6-
      But there is another wrinkle. Muhammad left open the possibility that Heck

might not apply when a habeas remedy is unavailable. 540 U.S. at 752 n.2.

Harrison likely would not be able to file a habeas petition challenging his

disciplinary conviction. We have held that a habeas petition under 28 U.S.C.

§ 2241 is available to challenge prison disciplinary proceedings only when those

proceedings affect “the fact or duration of the petitioner’s custody,” such as when

a prisoner is deprived of earned credits. McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 811–12 (10th Cir. 1997).

      Harrison’s conviction, because it has no bearing on the fact or duration of

his confinement, does not qualify. But we need not decide whether Heck would

bar Harrison’s § 1983 claims in the absence of a habeas remedy because even if

his claims are allowed to proceed, Harrison cannot demonstrate that his

constitutional rights were violated.

      B. Due Process

      Harrison claims the defendants violated his due process rights during his

disciplinary proceedings. We agree with the district court that Harrison failed to

establish his proceedings implicated a protected liberty interest. Thus we

conclude the district court properly dismissed his due process claim.

      “The Fourteenth Amendment prohibits states from depriving citizens of

liberty without due process of law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th

Cir. 2005). This guarantee applies to prison inmates, but “[p]rison disciplinary

                                         -7-
proceedings are not part of a criminal prosecution, and the full panoply of rights

due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418

U.S. 539, 556 (1974). The Supreme Court has established that protected liberty

interests are at issue in the prison setting only when an inmate is subjected to (1)

conditions that “impose[] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life” or (2) disciplinary actions that

“inevitably affect the duration of his sentence.” Sandin v. Conner, 515 U.S. 472,

484, 487 (1995).

      If a protected liberty interest is implicated, the following procedures must

be provided in a prison disciplinary hearing:

      (1) advance written notice of the disciplinary charges; (2) an
      opportunity, when consistent with institutional safety and
      correctional goals, to call witnesses and present documentary
      evidence in his defense; and (3) a written statement by the factfinder
      of the evidence relied on and the reasons for the disciplinary action.

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985). The results

of the disciplinary hearing must also be supported by “some evidence in the

record.” Id. at 454. Harrison’s disciplinary hearing did not implicate a protected

liberty interest, so he was not entitled to procedural due process. 4

      4
         Even if Harrison was entitled to procedural due process, he received all
the process due under Hill. 472 U.S. at 454. He was given a written notice of the
disciplinary charges three days before his hearing, was given the opportunity to
present evidence and call witnesses but declined to do so, and was given a written
statement of the evidence relied on and the reasons for his conviction. Id. His
conviction was also supported by some evidence, including Unit Manager King’s
                                                                      (continued...)

                                          -8-
      Harrison acknowledges his disciplinary conviction did not deprive him of

earned credits and thus did not affect the duration of his sentence. But he argues

it imposed atypical and significant hardships on him because it negatively

impacted his security classification, resulting in a reduction in his monthly pay

and a loss of many privileges. He also claims it will negatively affect his parole

consideration. Harrison further argues that ODOC policies and Oklahoma law

created an additional liberty interest by establishing a statutory right to

administratively appeal disciplinary convictions. See Okla. Stat. tit. 57, §

566.3(G); OP-060125.

      This court recently considered and rejected the same arguments Harrison

raises regarding his security classification and eligibility for parole. See Marshall

v. Morton, 421 F. App’x 832, 837–38 (10th Cir. 2011). In Marshall, we

concluded a reduction in an inmate’s security classification did not implicate a

liberty interest for inmates serving an 85% sentence even though it reduces the

rate at which inmates earn good-time credits because 85%-rule inmates are

ineligible to receive earned credits. Id. at 838. In addition, we concluded the

other privileges lost with a reduced security classification, such as reduced pay or

      4
       (...continued)
statement that he found a sharpened stick hidden in Harrison’s cell, as well as a
photo of the weapon. Id. at 455–56. Harrison claims Warden Ezell should not
have applied the “some evidence” standard in his administrative appeal, but the
case he cites for this proposition is not binding in this circuit and, in any case,
applies only when a disciplinary conviction affects an inmate’s supervised release
date. See Carrillo v. Fabian, 701 N.W.2d 763, 777 (Minn. 2005).

                                          -9-
restrictions on recreational privileges, did not impose an atypical hardship

compared to the normal incidents of prison life. Id.; see also Penrod v. Zavaras,

94 F.3d 1399, 1407 (10th Cir. 1996) (holding an inmate has no protected liberty

interest in prison employment). And we held the possibility a disciplinary

conviction will negatively impact an inmate’s parole consideration to be “too

attenuated” and based on too many other considerations to constitute a protected

liberty interest. Marshall, 421 F. App’x at 838 (citing Sandin, 515 U.S. at 487).

We find Marshall’s reasoning persuasive and adopt it here.

      Harrison also fails to establish that ODOC policy and Oklahoma law create

a liberty interest in his right to an administrative appeal. Prison disciplinary

procedures do not create constitutionally protected liberty interests. Crowder v.

True, 74 F.3d 812, 814–15 (7th Cir. 1996) (citing Sandin, 515 U.S. at 484). And

though states may sometimes create liberty interests protected by the due process

clause, these interests are “generally limited to freedom from restraint which . . .

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

incidents of prison life.” Sandin, 515 U.S. at 484.

      Even assuming Okla. Stat. tit. 57, § 566.3(G) created a liberty interest in

“freedom from restraint which . . . imposes atypical and significant hardship,”

Sandin, 515 U.S. at 484, Harrison has failed to show that deviations from this law

and policies created pursuant to it imposed atypical or significant hardships on

him, or inevitably affected the duration of his sentence. He alleges the ARA’s

                                         -10-
refusal to review his appeal prevented him from exhausting his administrative

remedies and precluded him from pursuing his claims in court, but Harrison is not

required to have his appeal actually reviewed by the ARA to exhaust his

administrative remedies. All he has to do is request such review and “see the

process to its conclusion.” See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th

Cir. 2002). It appears Harrison did so in this case, which is why the district court

did not reject his complaint on exhaustion grounds.

      Harrison has not established that a protected liberty interest was implicated

in his disciplinary proceedings. Thus even if his § 1983 claim for damages

arising from the denial of due process is not barred by Heck, the district court’s

dismissal of it was proper.

      C. Equal Protection

      Harrison also argues that the ARA’s refusal to review his disciplinary

conviction due to his ineligibility to receive earned credits violated his Fourteenth

Amendment right to equal protection. He alleges ODOC treats inmates serving

85% sentences differently than other inmates. To prevail on an equal protection

claim, a plaintiff must show the government treated him differently than others

who were similarly situated. Penrod, 94 F.3d at 1406. If the difference in

treatment is not based on a suspect classification, the plaintiff must also allege

facts sufficient to establish “the distinction between himself and other inmates

was not reasonably related to some legitimate penological purpose.” Templeman

                                         -11-
v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). The district court observed that

inmates subject to the 85% rule have been convicted of particularly serious

crimes, and found Harrison failed to challenge the legitimate penological

justification for treating these inmates differently.

      Harrison claims he challenged the penological purpose for treating 85%-

rule inmates differently in the context of a disciplinary hearing. But his only

arguments on this point are (1) that inmates who violate the same disciplinary

provision should be treated in the same manner, and (2) there is no valid

distinction between an inmate serving a 40-year sentence who is subject to the

85% rule and an inmate who is serving five consecutive twenty-year sentences

and is not subject to the 85% rule. But there is a valid distinction between these

inmates, and it was articulated by the district court: inmates subject to the 85%

rule have been convicted of particularly serious crimes. See Okla. Stat. tit. 21,

§ 13.1 (subjecting persons convicted of murder, first-degree rape, aggravated

child molestation, and so on to the 85% rule). Harrison simply points out that

these inmates are treated differently; his arguments do not challenge the reasons

underlying this disparate treatment, except to say they are not valid. As we held

when considering similar claims in Marshall, this is inadequate to state an equal

protection claim. 421 F. App’x at 839.




                                          -12-
      D. Declaratory and Injunctive Relief

      In addition to his § 1983 claims, Harrison sought declaratory and injunctive

relief on the grounds his due process and equal protection rights were violated by

the ARA’s refusal to review his appeal. The district court found Harrison was not

entitled to an injunction unless he could demonstrate that his constitutional rights

were actually violated. Rizzo v. Goode, 423 U.S. 362, 377 (1976). The district

court found Harrison failed to state a claim that either his due process or equal

protection rights were violated, so the court found he was not entitled to an

injunction. As we also conclude Harrison failed to state a claim that either his

due process or equal protection rights were violated, we affirm the district court’s

denial of injunctive and declaratory relief.

                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the order of the district court

dismissing Harrison’s petition. We DENY Harrison’s motion seeking an

exception. In addition, we remind Mr. Harrison that he must continue making

partial payments until the entire balance of his appellate filing fee is paid.

                                                     Entered for the Court,

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




                                         -13-
