                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                  FEB 4 1999
                                      TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk


 MILTON GILMORE LEE,

               Plaintiff-Appellant,
                                                               No. 98-6160
 v.
                                                        (D.C. No. CR-176-A,
 KATHY WATERS and DENISE                                   CIV-97-674-L)
 SPEARS,                                             (Western District of Oklahoma)

               Defendants-Appellees.



                               ORDER AND JUDGMENT*


Before PORFILIO, KELLY, and HENRY Circuit Judges.




       Milton Lee, a prisoner in the Oklahoma State Penitentiary proceeding pro se,

appeals the district court’s dismissal of his claims asserted against the defendant prison

officials pursuant to 42 U.S.C. § 1983. For the reasons set forth below, we affirm the

judgment dismissing Mr. Lee’s complaint, although for different reasons that those set




       *
               This order and judgment is not binding precedent, except under the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.
forth by the district court.1



                                    I. BACKGROUND

       In his complaint, Mr. Lee alleged that the defendant Kathy Waters (the Deputy

Director of the Oklahoma Department of Corrections) and the defendant Denise Spears

(the warden of the Howard McLeod Correctional Center) violated his due process and

equal protection rights. He maintained that, on October 18, 1996, disciplinary officer R.

Hazelwood held four disciplinary hearings without Mr. Lee being present to give a

defense. Mr. Lee did not name Officer Hazelwood as a defendant, but he alleged that the

defendant Ms. Waters “failed to remedy the wrong after having learned of such,” and that

the defendant Ms. Waters affirmed the punishment imposed at the hearing (the forfeiture

of earned credits and emergency credits and the imposition of disciplinary segregation

and a fine). Rec. doc. 2 at 2-3. Mr. Lee sought to recover actual and punitive damages.

       The magistrate judge issued an initial determination of the matter recommending

dismissal under Fed. R. Civ. Pro. 12(b)(6). The magistrate listed the due process rights

required in the context of prison disciplinary hearings under Wolff v. McDonnell, 418

U.S. 539, 556 (1974), and stated that these rights did not include the right to be present at


       1
             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.


                                              2
his disciplinary hearing. After reviewing the magistrate's report , the district court also

concluded that both Mr. Lee's claims should be dismissed as Mr. Lee had “been afforded

all the process he was due,” and entered judgment for the defendants.



                                     II. DISCUSSION

       On appeal, Mr. Lee argues that the district court erred in dismissing his due

process and equal protection claims. He maintains that there is evidence in the record

controverting the defendants’ contention that he refused to participate in the disciplinary

proceedings.

       As to Mr. Lee's equal protection claims, we agree with the district court that the

claim should be dismissed. Mr. Lee failed to sufficiently allege that he is a member of a

protected class or that the defendants' actions lacked a rational basis.

       As to Mr. Lee's due process claims, it is unclear from the district court order

exactly what grounds formed the basis for dismissal. We observe that the district court's

statement that Mr. Lee had “been afforded all the process he was due” may have been

premature as (contrary to the magistrate's statement of the law) our circuit has not yet

directly resolved the issue of whether Wolff contains an implied right for an inmate to be

present at his disciplinary hearing, and if so, how much process is due in connection with

that right. We need not directly resolve that issue here, as we may affirm the district

court’s judgment for any reasons supported by the record, including reasons not


                                              3
articulated by the court itself. See Medina v. City & County of Denver, 960 F.2d 1493,

1495 n. 1 (10th Cir.1992). We hold that Mr. Lee's due process claim must be dismissed

on the grounds of qualified immunity.

       The Prison Litigation Reform Act, 42 U.S.C. § 1997e, requires the court to dismiss

any § 1983 claim regarding prison conditions if it “seeks monetary relief from a

defendant who is immune from such relief.” 42 U.S.C. § 1997e(c)(1). In this case, the

defense of qualified immunity, asserted by the defendants in their motion to dismiss, or in

the alternative for summary judgment, supports the district court’s entry of judgment in

favor of the defendants.

       Under the doctrine of qualified immunity, “government officials performing

discretionary functions, generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). For plaintiffs to defeat a claim of qualified immunity, the "contours of the right

must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

       Here, contrary to Mr. Lee’s argument on appeal, the defendants submitted

statements from prison officials indicating that after he became disruptive and hostile to

staff, Mr. Lee was afforded an opportunity to attend the disciplinary hearings on the

condition that he be handcuffed and that Mr. Lee refused to do so. Rec. doc. 10 attach. J-


                                              4
K. Mr. Lee did not deny that he refused to be handcuffed. Rec. doc. 11.

       There is no clearly-established unqualified right to attend one's disciplinary

hearing.2 The Supreme Court has addressed the issue only implicitly, see Wolff, 418 U.S.

at 566, and, as above, we have never held that there is such an unqualified right. Further,

other circuits to consider the issue have held that a prisoner's implied right to attend his

own disciplinary hearing is only a qualified one, “limited by ‘the competing concerns of

maintaining institutional safety and other correctional goals.’” Battle v. Barton, 970 F.2d

779, 782 (11th Cir. 1992) (quoting Smith v. Massachusetts Dep't of Corrections, 936

F.2d 1390, 1399 (1st Cir. 1991)); see also Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir.

1989). The unrebutted evidence in Mr. Lee's case establishes that there were such

“competing concerns of maintaining institutional safety” that justified the requirement of

handcuffing Mr. Lee at the subject disciplinary hearings. Because there is no clearly

established right to attend a disciplinary hearing when such competing concerns exist, i.e.,

no unqualified right to attend a disciplinary hearing, by conducting the hearings in Mr.



       2
        We assume for purposes of this discussion that Mr. Lee's claims as to lost good
time credits rise to the level of a protected liberty interest, although as the magistrate
suggested, even this conclusion may be in doubt after Sandin v. Conner, 515 U.S. 472
(1995). We also observe that while Mr. Lee lost good time credits at his disciplinary
hearing, he has sounded his complaint under § 1983 and requests only monetary damages
for the deprivation of his right to attend the hearing without in any way asserting his
innocence or challenging the results of the disciplinary proceeding. Thus, construing his
pro se petition liberally, any judgment in Mr. Lee's favor would not “necessarily imply the
invalidity of his sentence,” and his claim is not barred by Edwards v. Balisok, 117 S. Ct.
1584 (1997).

                                               5
Lee’s absence after he refused to comply with this condition, prison officials did not

violate a clearly established due process right of which a reasonable person would have

known. The record therefore supports the grant of dismissal to the defendants on Mr.

Lee’s due process claim on the grounds of qualified immunity.3



                                   III. CONCLUSION

       We affirm the district court’s dismissal of Mr. Lee’s equal protection claim for

failure to state a claim upon which relief can be granted. As to Mr. Lee’s due process

claim, we affirm the district court’s judgment of dismissal on the grounds that the

defendants are entitled to qualified immunity.



                                                 Entered for the Court,

                                                 Robert H. Henry
                                                 Circuit Judge




       3
              Because Mr. Lee seeks only monetary relief, we interpret his claims as
asserted against the defendants in their individual capacities.

                                             6
