                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 3, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 JESSE TRUJILLO,

               Plaintiff - Appellant,                    No. 09-2257
          v.                                           (D. New Mexico)
 JOE WILLIAMS, Secretary; ELMER             (D.C. No. 6:04-CV-00635-MV-WDS)
 BUSTOS, Director New Mexico
 Department of Corrections,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff and appellant Jesse Trujillo, proceeding pro se, appeals the

dismissal of his Fourteenth Amendment equal protection and due process claims


      *
        This order and judgment is not binding precedent except under the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.
against defendants, Elmer Bustos, the Director of the New Mexico Department of

Corrections (“NMDC”), and Joe Williams, the Secretary of NMDC. For the

following reasons, we affirm that dismissal. 1



                                 BACKGROUND

      This is the second time Mr. Trujillo’s case has been before us. We glean

certain basic facts relevant to this case from Mr. Trujillo’s first appeal. See

Trujillo v. Williams, 465 F.3d 1210 (10 th Cir. 2006) (“Trujillo I”).

      Mr. Trujillo is a New Mexico state prisoner who was transferred by NMDC

to the Wallens Ridge State Prison (“WRSP”) in Virginia on April 12, 2002.

Immediately upon his arrival at WRSP, a classification hearing was held,


      1
        Initially, we must address a jurisdictional question referred to us as the
merits panel for this appeal. In the September 30, 2009, Order in which the
district court granted defendants’ motion to dismiss Mr. Trujillo’s due process
and equal protection claims, the court granted Mr. Trujillo leave to file an
amended complaint regarding his claim that defendants had denied him access to
the courts. Mr. Trujillo filed a notice of appeal from the dismissal of his due
process and equal protection claims on October 13, 2009. As of that date,
Mr. Trujillo’s claim of denial of access to the courts remained unresolved in the
district court. In a November 30, 2009, Show Cause Order, the parties were
directed to obtain a district court order containing a final judgment under Fed. R.
Civ. P. 54(b), in compliance with Stockman’s Water Co., LLC v. Vaca Partners,
L.P., 425 F.3d 1263, 1265 (10 th Cir. 2005), as to the September 30, 2009 Order, or
a district court order resolving the remaining claim. In a May 21, 2010 Order and
separate judgment, the district court granted a Rule 54(b) certification. In a
May 28, 2010 Order, this court referred to the merits panel the question of
whether we have jurisdiction over this appeal. We conclude that we do, inasmuch
as under Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10 th Cir. 1988),
Mr. Trujillo’s October 13, 2009, notice of appeal ripened on May 21, 2010.

                                         -2-
following which WRSP officials placed him in segregation on the stated ground

that he was a threat to the prison. The warden of WRSP denied Mr. Trujillo’s

initial appeal of that decision, but the regional director of the Virginia

Department of Corrections (“VDOC”) determined that Mr. Trujillo’s subsequent

grievance was well-founded and informed Mr. Trujillo that appropriate

administrative action had been taken. Mr. Trujillo’s classification, however, did

not change.

      As we stated in Trujillo I:

             On July 9, 2002, at a second classification hearing . . . [Mr.
      Trujillo] was placed in segregation under the explanation that he
      ‘need[ed] a longer period of adjustment;’ ‘New Mexico inmate.’ Mr.
      Trujillo appealed this decision on the grounds that he had been in
      segregation for over 100 days when the average stay for new arrivals
      in segregation was days or weeks; his appeal was denied by the
      warden and the regional director. As a result, Mr. Trujillo spent
      nearly a year in segregation.

Trujillo I, 465 F.3d at 1214.

      On March 9, 2003, Mr. Trujillo wrote a letter to another regional director,

claiming that he had been classified in a prejudicial and discriminatory manner

and had spent a much longer time in segregation than any other prisoners.

Indeed, “Mr. Trujillo explained . . . that he had been in segregation for more than

750 days. The letter was returned stating that his appeal to the director did not

meet the criteria for a Level III response.” Id. at 1215.




                                          -3-
      On March 26, 2003 “WRSP changed the rationale for Mr. Trujillo’s

segregation to ‘inmate viewed as a threat to WRSP.’” Id.. Mr. Trujillo claims no

explanation of this change in rationale was given. In May 2003, he filed more

grievances relating to his classification, all unsuccessful. The WRSP warden

explained: “‘Your initial classification was completed by New Mexico. The

VDOC cannot reclassify you unless given permission by New Mexico.’” Id. In

February 2004, in response to another grievance from Mr. Trujillo, the VDOC

“informed Mr. Trujillo that ‘New Mexico has authorized the adaptation of all

policies and procedures adopted by the VDOC for those inmates housed in

Virginia. However, matters relating to classification are still handled by New

Mexico.’” Id.

      Mr. Trujillo filed this 42 U.S.C. § 1983 action on June 4, 2004, claiming

that the conditions of his confinement violated his Fourteenth Amendment due

process and equal protection rights, his constitutional right of access to the court,

and his Eighth Amendment right against cruel and unusual punishment. Pursuant

to the district court’s Rule 54(b) certification, only his due process and equal

protection claims are at issue in this appeal. He named as defendants various

Virginia and New Mexico prison officials. With respect to the New Mexico

officials (the remaining defendants in this case), he alleged that he had been told

by certain VDOC employees that there was a standing order from NMDC that no

New Mexico prisoner housed at WRSP should be given employment of any kind.


                                          -4-
He also claimed that the New Mexico authorities were responsible for his

extended time spent in segregation. These allegations formed the basis for his

due process and equal protection allegations against the defendants Williams and

Bustos.

      After granting Mr. Trujillo in forma pauperis status, the district court: (1)

dismissed without prejudice Mr. Trujillo’s claims against the Virginia defendants

for lack of personal jurisdiction and improper venue; and (2) dismissed with

prejudice Mr. Trujillo’s claims against the New Mexico defendants for failure to

state a claim on which relief may be granted. Mr. Trujillo then filed his first

appeal before our court.

      On appeal in Trujillo I, we: (1) “remand[ed] . . . to the district court for a

determination of whether Mr. Trujillo’s claims against the Virginia defendants

should be transferred rather than dismissed without prejudice,” id. at 1223; (2)

affirmed the district court’s dismissal of Mr. Trujillo’s claims against the New

Mexico defendants “to the extent that Mr. Trujillo seeks damages from these

defendants in their official capacities”, id. at 1224; (3) reversed the “dismissal of

Mr. Trujillo’s due process claim against the New Mexico defendants and

remand[ed] to allow the district court to conduct [an] evidentiary analysis,” id. at

1225; (4) reversed the district court’s dismissal of Mr. Trujillo’s “§ 1983 denial

of access to courts claim against the New Mexico defendants,” id. at 1227; (5)

affirmed the district court’s dismissal of Mr. Trujillo’s Eighth Amendment claim


                                          -5-
against the New Mexico defendants; and (6) reversed and remanded the district

court’s dismissal of his equal protection claim, with directions to permit Mr.

Trujillo “an opportunity to amend his complaint to allege facts sufficient to

‘overcome a presumption of government rationality.’” Id. at 1228 (quoting

Brown v. Zavaras, 63 F.3d 967, 971 (10 th Cir. 1995)).

      On remand, the district court found that “in the interest of justice,” Mr.

Trujillo’s claims against the Virginia defendants should be transferred to

Virginia, and it granted Mr. Trujillo leave to file an amended complaint, which he

did on April 4, 2007. 2 The district court then referred the remaining issues to a

magistrate judge.

      Mr. Trujillo’s amended complaint addressed one of the issues remanded to

the district court—his alleged denial of prison employment pursuant to a

“standing order from the . . . NMDC that no New Mexico prisoner housed at

[WRSP] should be given employment of any kind.” 07/13/09 Magistrate Judge’s

Proposed Findings and Recommended Disposition at 3. The magistrate judge

noted that “[t]he amended complaint contained no allegation that either of the

named New Mexico defendants, Joe Williams or Elmer Bustos, had been



      2
        The claims transferred to Virginia were dismissed by the district court for
the Western District of Virginia, on the ground that Mr. Trujillo had previously
filed a lawsuit raising the same claims against the same defendants. The Virginia
court further found that the transferred claims “had been filed in New Mexico in
bad faith, and to harass and inconvenience the defendants.” 07/13/09 Magistrate
Judge’s Proposed Findings and Recommended Disposition at 2.

                                         -6-
personally involved in denying [Mr. Trujillo] employment.” Id. Additionally, the

amended complaint “contained no new allegations relating to plaintiff’s access to

the court claim or his claim that he had been wrongfully segregated in Virginia.”

Id.

      The New Mexico defendants filed a motion to dismiss Mr. Trujillo’s

complaint. That motion included several affidavits from NMDC employees.

Alisha Lucero, the Classification Administrator for the Classification Bureau of

NMDC, stated in her affidavit that Mr. Trujillo’s “classification in the Custody of

the State of Virginia is handled by personnel of the State of Virginia Department

of Corrections.” Lucero Aff. ¶ 5, R. Vol. 1 at 106. She further stated that she did

not “find any communication or letters from the New Mexico Corrections

Department to the Virginia Department of Corrections requesting that Mr. Trujillo

be restricted from working or that his classification be subject to the approval of

the New Mexico Corrections Department.” Id. ¶ 6. Additionally, Jeff Serna, the

Classification Bureau Chief for the Classification Bureau of NMDC, provided an

affidavit in which he stated that “[i]t is neither the policy nor procedure within

NMDC to proscribe, suggest or dictate that inmates transferred to another state

are to be treated differently or at variance to agreements entered into or

established between States of the United States and New Mexico or contrary to

the standards established by the I.C.C.” Serna Aff. ¶ 5, R. Vol. 1 at 226. The

I.C.C. is the “Contract Between the State of New Mexico and the State of


                                          -7-
Virginia for the Implementation of the Interstate Corrections Compact.” That

contract, in turn, provides that the receiving state (Virginia, in this case) has the

responsibility “to confine inmates from a sending state” and to “have physical

control over and power to exercise disciplinary authority over all inmates from

sending states.” R. Vol. 1 at 234, 236. Accordingly, while there appeared to be

some communications from the warden at VDOC suggesting that New Mexico

had authority over Mr. Trujillo’s level of confinement in Virginia, and Mr.

Trujillo claims VDOC employees told him New Mexico authorities controlled his

employment status in Virginia, the sworn affidavits and the contract governing

transfers from New Mexico to Virginia clearly stated that VDOC had control over

Mr. Trujillo’s confinement status and employment possibilities while at WRSP.

      Because documents and materials outside the motion to dismiss were

considered, the magistrate judge treated the defendants’ motion to dismiss as a

motion for summary judgment. With respect to Mr. Trujillo’s due process and

equal protection claims, the magistrate judge recommended granting the

defendants’ motion to dismiss/motion for summary judgment, summarizing his

ruling in this way:

      In summary, defendants in this matter flatly deny any participation in
      plaintiff’s security classification or employment at WRSP. Plaintiff
      acknowledges that on three other occasions where he was moved to
      out of state prisons there was no interference by defendants with his
      classification or employment opportunity, and that, to the contrary,
      he was required to work. The ICC clearly places the responsibility
      for classification and employment with the receiving state, Virginia.


                                           -8-
      Plaintiff was classified on arrival by VaDOC, and VaDOC revisited
      plaintiff’s classification several times over the ensuing two years.
      None of the VaDOC classification paperwork indicates that VaDOC
      was deferring to NMCD on any matter. While there are several
      memos from the WRSP warden, not the VaDOC classification
      authority, stating that New Mexico had retained classification
      authority over plaintiff, there is no documentary evidence of that fact
      and there is a final memo from the warden to plaintiff acknowledging
      that his classification had been at all times, and would be in the
      future, conducted in accordance with VaDOC operating procedures,
      by VaDOC staff who had “final authority” to approve any security
      level reduction.
             In the Court’s opinion neither the statements by the warden,
      which were subsequently corrected, nor the hearsay statements
      regarding employment that plaintiff attributes to unnamed prison
      guards create a genuine issue for trial, and the Court recommends
      that plaintiff’s equal protection claim and his claims under the Eighth
      and Fourteenth Amendments relating to alleged interference by the
      NMCD in security classification and employment be dismissed.

Magistrate’s Proposed Findings and Recommended Disposition at 11.

      The district court subsequently adopted the magistrate judge’s findings and

recommendation with respect to Mr. Trujillo’s due process and equal protection

claims and granted defendants’ motion to dismiss. 3 This appeal followed.



                                  DISCUSSION

      We review de novo the district court’s grant of summary judgment. See

Cahill v. American Family Mut. Ins. Co., 610 F.3d 1235, 1238 (10 th Cir. 2010).

Similarly, we review the grant of a motion to dismiss de novo. See Howard v.

      3
       With respect to Mr. Trujillo’s other claim, which is not relevant to this
appeal, the district court granted Mr. Trujillo leave to amend his complaint
regarding his constitutional right of access to the courts.

                                         -9-
Wade, 534 F.3d 1227, 1242-43 (10 th Cir. 2008). We affirm the district court’s

grant of summary judgment, for the simple reason that, as the magistrate judge’s

recommendation (subsequently adopted by the district court) stated, there was

ample evidence that the two New Mexico defendants in this case had nothing to

do with Mr. Trujillo’s classification or employment status at WRSP.

Mr. Trujillo’s conclusory allegations do not reveal a disputed genuine issue of

fact when there are affidavits directly contradicting his allegations.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s judgment.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -10-
