                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                    FEB 17 2005
                               TENTH CIRCUIT
                                                            PATRICK FISHER
                                                                       Clerk

DAVID K. JENNER,

             Plaintiff-Appellant,

v.                                               No. 03-1422
                                             District of Colorado
       and                                 (D.C. No. 01-WM-1520)

JAMES MCDANIEL; MICHAEL
CUSICK; KEITH COURVILLE;
RONALD FRAZIER,

             Plaintiffs,

JOE STOMMEL, Mental Health
Supervisor; CHRISTOPHER
PETROZZI, individually and as
Mental Health Supervisor; GEORGE
BLANDSIT, L.C.F. Mental Health
Supervisor; BARNEY BAUER,
individually and as Captain of Units 5
and 6 at the Limon Correctional
Facility; LORI LAMER, individually
and as Therapeutic Community
Secretary; JOHN RILEY, individually
and as Juniper Valley Productions
Facility Supervisor, unknown
defendants; COLORADO
DEPARTMENT OF CORRECTIONS;
ADDICTIVE RECOVERY
PROGRAMS; JIM MICHAUD;
DENNIS O'NEIL; DENNIS
WATKINS, individually; GALE
HUFF, individually; FRED
BOUTILIER, individually; GALEEN
CROWL; TERRY PARKER,
 individually; GENE JONES,
 individually,

                  Defendants-Appellees.


                             ORDER AND JUDGMENT            *




Before SEYMOUR, HARTZ and McCONNELL , 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); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

       Plaintiff David Jenner, a state prisoner proceeding pro se, appeals the

district court’s dismissal with prejudice of his civil rights claims filed under 42

U.S.C. §§ 1983 and 1985. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and AFFIRM the judgment of the district court.

                        I. Background and Procedural History

       Mr. Jenner and several other inmates at the Limon Correctional Facility in

Colorado initiated this civil rights action alleging various violations of their


       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.


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constitutional rights. The inmates’ allegations stem from their participation in a

substance abuse program called the Therapeutic Community Program (“the

Program”), which is conducted by Addiction Recovery Programs (ARP). The

named Defendants are either employees of ARP or prison officials. The inmates

allege that the Defendants violated their First, Fifth, Eighth, and Fourteenth

Amendment rights.

      The Defendants filed motions to dismiss for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6). The district court referred the matter to a

magistrate judge who recommended that the Defendants’ motions be granted. On

August 21, 2003, the district court issued an order adopting the magistrate judge’s

recommendation with one exception: the district court allowed the Plaintiffs to

amend their complaint as to their fourth claim, which was based on alleged

retaliation against the Plaintiffs in violation of their right of access to the courts.

The district court dismissed all of the Plaintiffs’ remaining claims with prejudice.

      Mr. Jenner filed a motion requesting certification under Fed. R. Civ. P.

54(b). The district court determined that Mr. Jenner was requesting a final

judgment so that he could proceed on appeal. The district court construed his

motion as a request for dismissal with prejudice and granted his request. At the

same time, the district court dismissed without prejudice the remaining Plaintiffs’

fourth claim. No Plaintiff filed an amended complaint within the deadline set by


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the district court. The Order of August 21, 2003, is therefore a final order. Only

Mr. Jenner appeals.

                                 II. Standard of Review

       We review the district court’s grant of a motion to dismiss under Rule

12(b)(6) de novo, applying the same standards as the district court.             Montgomery

v. City of Ardmore , 365 F.3d 926, 935 (10th Cir. 2004). We take all well-pleaded

factual allegations in the complaint as true and view them in the light most

favorable to the non-movant.      Id. Dismissal is appropriate only where it is

apparent that the plaintiff can prove no set of facts in support of his claim.         Id.

                                      III. Discussion

                                              A.

       Mr. Jenner alleges that the Program is “secular humanistic in nature and

establishes a ‘religion.’” Aplt.Br. 13-14. The magistrate judge concluded that the

Program is not a religion and thus participation in the Program does not implicate

the First Amendment’s Establishment Clause. R&R 10. Before the district court,

Mr. Jenner did not object to the determination that the Program is not a religion.

Order 3. That issue is therefore waived.        Moore v. United States , 950 F.2d 656,

659 (10th Cir. 1991).




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                                            B.

       Mr. Jenner’s second claim is that his participation in the Program violates

his Fifth Amendment right against self-incrimination. Mr. Jenner states that the

Program “requires disclosure of information about the . . . crime” while he is

currently appealing his conviction. Aplt.Br. 15. Mr. Jenner contends that the

threatened loss of earned time credit and visitation privileges for failure to

participate forces him to disclose the information.

       The Supreme Court has addressed the necessary limitations on

constitutional rights that result from lawful incarceration:

       A prison clinical rehabilitation program, which is acknowledged to
       bear a rational relation to a legitimate penological objective, does not
       violate the privilege against self-incrimination if the adverse
       consequences an inmate faces for not participating are related to the
       program objectives and do not constitute atypical and significant
       hardships in relation to the ordinary incidents of prison life.

McKune v. Lile , 536 U.S. 24, 37-38 (2002). The adverse consequences (loss of

earned time credits and visitation privileges) that Mr. Jenner would face for not

disclosing information are related to the Program’s objective of rehabilitation and

do not constitute atypical and significant hardships. “[T]he Constitution . . . does

not guarantee good-time credit for satisfactory behavior while in prison.”       Wolff v.

McDonnell , 418 U.S. 539, 557 (1974).

       Mr. Jenner’s choice not to disclose information for fear of self-

incrimination while his appeal is pending may indeed result in the loss of certain

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rewards but “the government need not make the exercise of the Fifth Amendment

privilege cost free.”   McKune , 536 U.S. at 41. “The criminal process . . . is

replete with situations requiring the making of difficult judgments . . . . Although

a defendant may have a right, even of constitutional dimensions, to follow

whichever course he chooses, the Constitution does not by that token always

forbid requiring him to choose.”     Id. (quoting McGautha v. California , 402 U.S.

183, 213 (1971)). Mr. Jenner has failed to state a claim for relief under the Fifth

Amendment.

                                            C.

       Mr. Jenner claims that his Eighth Amendment right not to be subject to

cruel and unusual punishments has been violated. Mr. Jenner alleges that due to

his participation in the Program, general population inmates have tampered with

his food and laundry, he has been labeled a “rat,” and he has faced retaliation

from inmates.

       Mr. Jenner alleges food and laundry tampering by general population

inmates. The Eighth Amendment requires that “prisoners receive food that is

adequate to maintain health.”      LeMaire v. Maass , 12 F.3d 1444, 1456 (9th Cir.

1993). Mr. Jenner has not alleged in what manner the general population inmates

tampered with his food or that the adulterated food was dangerous to his health.




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Likewise, Mr. Jenner’s summary allegation of laundry tampering does not specify

facts to support his claim.

       Mr. Jenner alleges that the Program requires inmates to “inform on other

inmates in the program for ‘any’ behavior which is outside the [Program]

guidelines.” Aplt.Br. 19. Mr. Jenner contends that he has been labeled a “rat”

and a “snitch” and therefore is the target of physical confrontation by other

general population inmates. Where an Eighth Amendment claim is based upon

conditions of confinement, an inmate must demonstrate that the deprivation

suffered was “objectively ‘sufficiently serious,’” and that the defendant had a

“sufficiently culpable state of mind” or was “deliberate[ly] indifferen[t]” to the

inmate’s health or safety.     Farmer v. Brennan , 511 U.S. 825, 834 (1991) (quoting

Wilson v. Seiter , 501 U.S. 294, 297-98, 302-03 (1990)). To prove a violation of a

prison official’s constitutional duty to protect inmates from violence at the hands

of other inmates, a plaintiff must establish that he is incarcerated under conditions

posing a substantial risk of serious harm and that the defendants were deliberately

indifferent to his need for protection.     Id. A defendant acts with deliberate

indifference if his or her conduct “disregards a known or obvious risk that is very

likely to result in the violation of a prisoner’s constitutional rights.”   Berry v. City

of Muskogee , 900 F.2d 1489, 1496 (10th Cir. 1990).




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      Mr. Jenner does not allege facts to support a claim that the Defendants were

aware of any potential harm that might befall him, let alone that the Defendants

had culpable states of mind or were deliberately indifferent. Furthermore, Mr.

Jenner does not allege facts to support a claim that the threat of retaliation was

imminent. An “idle threat” of impending physical harm that is not carried out

will not suffice to state an Eighth Amendment claim.     Northington v. Jackson , 973

F.2d 1518, 1524 (10th Cir. 1992). Mr. Jenner has failed to state a claim for relief

under the Eighth Amendment.

                                           D.

      Mr. Jenner claims various Fourteenth Amendment violations and improper

termination from prison employment. In a civil rights action such as this, a

plaintiff must allege two essential elements: that the complained-of conduct (1)

was committed by a person acting under color of state law, and (2) deprived the

plaintiff of rights, privileges, or immunities secured by the Constitution and laws

of the United States. 42 U.S.C. § 1983.

      Mr. Jenner contends that his due process rights were violated by impromptu

hearings known as “staffing” sessions conducted by Program staff to address an

inmate’s violation of a Program policy or rule. If a prisoner is found to be in

violation of a Program policy or rule, he faces loss of earned time, parole

eligibility, or visitation privileges. Specifically, Mr. Jenner alleges that he has


                                           -8-
received several “staffings” for which he was given no advance notice and during

which he was not allowed to be heard. Mr. Jenner argues that this lack of due

process violates the Fourteenth Amendment.

       When a plaintiff claims denial of due process, the court inquires into the

nature of the individual’s claimed interest “to determine whether due process

requirements apply in the first place.”      Board of Regents v. Roth , 408 U.S. 564,

570-571 (1972). “The Due Process clause standing alone offers prisoners only a

‘narrow range of protected liberty interests.’”       Abbot v. McCotter , 13 F.3d 1439,

1442 (10th Cir. 1994) (quoting       Hewitt v. Helms , 459 U.S. 460, 467 (1983)). Mr.

Jenner does not have a protected liberty interest in visitation privileges absent any

state law that establishes this interest.    Kentucky Dept. of Corrections v.

Thompson , 490 U.S. 454, 460 (1989). Mr. Jenner does not allege an entitlement

under state law to visitation privileges. Neither does he have a protected liberty

interest in a particular parole hearing eligibility date.    Chambers v. Colorado

Department of Corrections , 205 F.3d 1237, 1242 (10th Cir. 2000). Mr. Jenner

likewise does not have a protected liberty interest in earned time credits. The

magistrate judge correctly noted that, because the Colorado statutes grant

discretion to prison officials to determine whether a prisoner shall qualify for

earned time credits based on behavior, those statutes do not create a protected

liberty interest.


                                               -9-
       Mr. Jenner alleges that he was improperly terminated from his prison

employment in violation of applicable DOC regulations after commencing the

Program. He claims that this termination violates the Due Process Clause.

However, Mr. Jenner does not have a constitutional right to a particular prison

job. See Penrod v. Zavares , 94 F.3d 1399, 1407 (10th Cir. 1996). Therefore, Mr.

Jenner has failed to state a claim for relief under the Fourteenth Amendment in

relation to the termination of his prison employment and loss of various

privileges.

       Mr. Jenner further alleges that because he has sought access to the federal

courts, he has been discriminated against by Program administrators in violation

of the Fourteenth Amendment Equal Protection Clause. Mr. Jenner contends that

those inmates who have not sought access to the courts have been released from

the Program while he has been forced to remain, thereby creating a suspect class.

Such a suspect class has never been recognized. Because Mr. Jenner is not a

member of a protected class and has not asserted impairment of a fundamental

right, he must allege facts sufficient to overcome the presumption of government

rationality of the alleged discrimination.    Brown v. Zavares , 63 F.3d 967, 971

(10th Cir. 1995). A plaintiff cannot overcome this presumption with allegations

that are merely conclusory.     Id. at 972. Mr. Jenner has not presented facts, but

only conclusory allegations, and therefore cannot overcome the presumption of


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government rationality. Mr. Jenner has failed to state a claim for relief under the

Equal Protection Clause of the Fourteenth Amendment.

      For the foregoing reasons, we   AFFIRM the judgment of the United States

District Court for the District of Colorado.

                                               Entered for the Court



                                               Michael W. McConnell
                                               Circuit Judge




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