                                                         FILED
                                              United States Court of Appeals
                                                      Tenth Circuit

                                                   October 21, 2010
               UNITED STATES COURT OF APPEALS
                                            Elisabeth A. Shumaker
                                                     Clerk of Court
                      FOR THE TENTH CIRCUIT




WILLIAM HENRY SHERRATT,

          Plaintiff-Appellant,

v.                                           No. 10-4018
                                   (D.C. No. 2:07-CV-00551-DAK)
CLINT FRIEL, Old Warden; STEVEN               (D. Utah)
TURLEY, New Warden; MICHAEL
CHABRIES, Utah Department of
Corrections Director; JACK FORD,
UDC Administration; DAN LATHAM,
Associate Warden; JAMES LA
BOUNTY, Deputy Warden; LYLE
SMITH, Captain, C-Block/SOTP
Program Security, C-Block OMR;
KENT DEMILLE, LT. C-Block OMR;
GRANT BLAIR, CHS, C-Block OMR;
RANDY LONG, Captain, B-Block
OMR; FNU CAWLEG, Sergeant,
B-Block OMR; SHARON D’AMICO,
CHS, B-Block OMR; DAVID WOLF,
CHS, B-Block OMR; NANCY
MANROE, SATP Counselor, OMR;
DAVID BALLARD, SATP Counselor,
OMR; RON SANCHEZ, SOTP
Director, C-2; KARL POWELL, SOTP
Assistant Director; EMMA HEATH,
SOTP Staff; ANNETTE VALARDE,
A-Block OMR,

          Defendants-Appellees.
                           ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.



      Plaintiff-appellant William H. Sherratt was convicted in Utah state court of

two counts of first-degree rape. He was sentenced to two concurrent sentences of

five years to life under Utah’s indeterminate sentencing scheme.

      Mr. Sherratt now appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint against various officers and employees of the Utah Department

of Corrections. The genesis of that cause of action was a downgrading of his

prison privileges and living accommodations that occurred in August 2003.

Mr. Sherratt’s voluminous district court filings generally presented a couple of

different main theories. His first theory was that the downgrading occurred

without due process and in retaliation for his filing of a habeas corpus action.

He asserted that Utah prison employees have an unwritten policy of retaliating

against sex offenders who file legal actions attacking their convictions.




*
       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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
       Mr. Sherratt’s second theory was broader and attacked the reason given by

the prison for the downgrading. According to Mr. Sherratt, the prison maintained

that the downgrading was simply a recognition of the fact that previously granted

privileges were incompatible with Mr. Sherratt’s failure to participate in the

prison’s sex offender treatment program (SOTP). Mr. Sherratt claimed that he

was wrongly convicted of rape, and essentially argued that this wrongful

conviction leads to the Catch-22 of having to admit to a crime he did not commit

in order to participate in the SOTP and reap the various benefits (increased

privileges, more favorable parole consideration) associated with participation. 1

He asserted that Utah’s system of indeterminate sentencing, which allows the

parole board great control over the amount of time a prisoner will actually spend

in prison, makes the parole board essentially a sentencing court, and that the

prison and the parole board should be constitutionally required to consider

evidence of his actual innocence before using his failure to attend therapy against

him.

       The district court sua sponte dismissed Mr. Sherratt’s in forma pauperis

complaint on screening for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii). He asserts on appeal that the district court erred in holding

that (1) there was no constitutional liberty interest in maintaining a certain prison


1
      The SOTP does not allow prisoners to attend therapy until they are ready to
admit they are sex offenders who need such therapy.

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classification or housing assignment, and thus Mr. Sherratt had failed to state a

claim that a due process violation occurred when the downgrade occurred;

(2) Mr. Sherratt had failed to assert facts sufficient to show facial plausibility that

“but for” his filing of a habeas action, he would have been allowed to keep his

increased privileges despite his non-participation in SOTP; (3) Utah’s

indeterminate sentencing scheme was not unconstitutional, parole is a privilege

and not a right, and the Utah parole statute did not create a federal constitutional

liberty interest, see Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1212-15

(10th Cir. 2009), cert. denied, 130 S. Ct. 1737 (2010), and (4) to the extent that

Mr. Sherratt was attacking the basis of his confinement, he was improperly

attempting to advance habeas corpus claims in a § 1983 action, see Wilkinson v.

Dotson, 544 U.S. 74, 79 (2005) (explaining “that a § 1983 action will not lie

when a state prisoner challenges the fact or duration of his confinement and seeks

either immediate release from prison or the shortening of his term of

confinement” (quotations and citation omitted)).

      Appellant proceeds pro se, and therefore we construe his pleadings

liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Further, “[w]e review

de novo the district court’s decision to dismiss an IFP complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d 1214,

1217 (10th Cir. 2007). “Dismissal of a pro se complaint for failure to state a

claim is proper only where it is obvious that the plaintiff cannot prevail on the

                                          -4-
facts he has alleged and it would be futile to give him an opportunity to amend.”

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). “In

determining whether dismissal is proper, we must accept the allegations of the

complaint as true and we must construe those allegations, and any reasonable

inferences that might be drawn from them, in the light most favorable to the

plaintiff.” Id. Specifically, “we look to the specific allegations in the complaint

to determine whether they plausibly support a legal claim for relief.” Kay,

500 F.3d at 1218 (quotation omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Gallagher v.

Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (quotation omitted). Upon

consideration of Mr. Sherratt’s brief and the contentions therein, the entire record

on appeal, and de novo review of the district court’s order, we affirm the

dismissal of Mr. Sherratt’s complaint for substantially the same reasons set forth

by the district court in its December 11, 2009, order dismissing Mr. Sherratt’s

cause of action.

      Mr. Sherratt also filed two motions to supplement the record. The first

seeks to supplement the record with a audio recording of a parole board hearing

that took place three months after the district court dismissed his cause of action.

The second seeks to supplement the record with an affidavit concerning allegedly

retaliatory conduct on the part of prison officials occurring in 2010. To support

                                         -5-
his motions, Mr. Sherratt cites to Hayes v. Whitman, 264 F.3d 1017, 1025

(10th Cir. 2001), which observes that “it might be appropriate for a [district]

court to consider additional facts or legal theories asserted in a response brief to a

motion to dismiss if they were consistent with the facts and theories advanced in

the complaint[.]” (emphasis added). Hayes is inapposite and we decline to

supplement the record.

      Mr. Sherratt also filed a motion asking us to take “Judicial Notice” of

Utah Code Ann. § 64-9b-4, which provides that rehabilitative and employment

opportunities in Utah prisons are voluntary. It appears Mr. Sherratt is attempting

to argue on appeal that defendants’ conduct violated this state law. His argument

is dismissed for not being properly raised in the district court or in his appellate

brief. See Emp’rs Mut. Cas. Co v. Bartile Roofs, Inc., ___ F.3d ___,

Nos. 08-8064, 08-8068, 2010 WL 3473382, at 16 n.20 (10th Cir. Sept. 7, 2010).

      The judgment of the district court is AFFIRMED for substantially the same

reasons set forth by the district court in its December 11, 2009, order dismissing

Mr. Sherratt’s cause of action. Mr. Sherratt’s motions to supplement the record

with additional factual information are DENIED. His argument concerning

Utah Code Ann. § 64-9b-4 is DISMISSED.

                                                      Entered for the Court


                                                      Bobby R. Baldock
                                                      Circuit Judge

                                          -6-
