                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 20, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


    WALTER CURTIS MOLES,

              Plaintiff-Appellant,

    v.                                                 No. 11-6123
                                                (D.C. No. 5:08-CV-00594-F)
    HARLEY G. LAPPIN, Director,                        (W.D. Okla.)
    Bureau of Prisons; JOSEPH
    SCIBANA, Warden, FCI El Reno; R
    BENEFIEL, Captain, FCI El Reno;
    MR. TOWERS, SIS Technician; R
    ROONEY, SIS, Lt, FCI El Reno;
    DEBRA ROBERTS, CMC, FCI El
    Reno; DELBERT SAUERS, Branch
    Chief, BOP; H. A. LEDEZMA,
    Warden; MATTHEW MENDEZ, Case
    Manager,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Walter Curtis Moles is a federal inmate who initiated this Bivens suit to

vindicate alleged Eighth Amendment violations committed by officials of the

Bureau of Prisons (BOP). 1 Moles also invoked the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680, seeking damages and injunctive

relief. The district court denied an injunction, dismissed the FTCA claim for lack

of jurisdiction, and granted defendants summary judgment based on qualified

immunity. Thereafter, the district court clerk assessed costs against Moles, and

he appealed pro se. 2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                 BACKGROUND

      This case stems from two prison fights that occurred on August 18 and 19,

2007. At that time, Moles was confined in the general population at the Federal

Correctional Institute in El Reno, Oklahoma (FCI-El Reno), where he had been

since May 9, 2007. On the 18th, Moles fought two inmates who were known

prison gang-members, and a third inmate who was unaffiliated with any gang.

Moles sustained injuries in the fight but did not report the incident. The next day,

however, on the 19th, Moles fought the third inmate again, this time wielding a

twelve-inch, self-made knife. The other inmate used a padlock tied to the end of


1
     See Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
2
      Moles’ pro se status entitles him to a liberal construction of his filings, but
we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).

                                         -2-
a belt to whip Moles’ head and body. After the fight, Moles claimed he was

defending himself, but he was charged with possessing a weapon and fighting.

He was sanctioned with disciplinary segregation, loss of good-time credits, and

transfer to a higher-security facility.

      These events compelled Moles to file this Bivens suit, alleging Eighth

Amendment claims for failure to protect, retaliation, and deliberate indifference.

Moles first claimed that defendants failed to protect him in accordance with his

status as a Central Inmate Monitoring (CIM) case. 3 Moles alleged that when he

arrived at FCI-El Reno, defendants failed to properly assess his CIM status, which

resulted in his mistaken and harmful placement in general population. Moles next

claimed that defendants retaliated against him for filing grievances accusing them

of conspiring to cover-up their error of wrongfully placing him in general

population. He averred that defendants retaliated by pursuing false charges and

delaying the investigation into the fights because he challenged his transfer into

FCI-El Reno’s general population. Finally, Moles claimed that defendants

exhibited deliberate indifference by re-designating him to a higher security



3
       Central Inmate Monitoring cases are those inmates designated by the BOP
as presenting “special needs for management.” These inmates “require a higher
level of review which may include Central Office and/or Regional Office
clearance for transfers, temporary releases, or community activities.” The
purpose of the Central Inmate Monitoring System “is to provide protection to all
concerned and to contribute to the safe and orderly operation of federal
institutions.” 28 C.F.R. § 524.70.

                                          -3-
facility. He said a transfer into a United States penitentiary “would be a ‘death

sentence,’” Doc. 95 at 22 (Amend. Compl.), and therefore he should be confined

in a federal correctional institute or state contract facility. 4 To that end, Moles

moved for an injunction prohibiting his transfer to any United States penitentiary.

      The case proceeded to discovery, and defendants moved for summary

judgment based on qualified immunity. Adopting a magistrate judge’s report and

recommendation, the district court granted defendants’ motion, dismissed the

FTCA claim for lack of jurisdiction, and denied an injunction. Defendants then

submitted a bill of costs, and over Moles’ objection, the clerk of the district court

assessed $839.15 in costs against Moles. Moles did not request the district court

to review that order, but instead, he pursued this appeal.

                                    DISCUSSION

      Appellate Jurisdiction

      At the outset, we confront two jurisdictional issues, one concerning the

timeliness of the notice of appeal and a second relating to the imposition of costs.

On February 16, 2011, the district court entered its final judgment granting

defendants qualified immunity. On April 7, 2011, before the sixty-day appeal

window elapsed, see Fed. R. App. P. 4(a)(1)(B), Moles requested a thirty-day



4
      We have discretion to access documents from the district court that were
not included in the record on appeal. See Burnett v. Sw. Bell Tel., L.P., 555 F.3d
906, 909 (10th Cir. 2009).

                                          -4-
extension to file his notice of appeal. He asserted that he had good cause for an

extension because his motion to proceed on appeal in forma pauperis (IFP) was

still pending. The district court granted him an extension, which afforded Moles

until May 17, 2011, to file his notice of appeal. Meanwhile, the district court

clerk assessed costs against Moles on April 14, 2011. Moles did not seek review

of that order in the district court, but on May 6, 2011, he filed a notice of appeal

contesting both the grant of summary judgment and the imposition of costs.

Given this chronology, we directed the parties to brief our jurisdiction over the

merits of this appeal, as well as the cost order. Having now considered the

parties’ responses, we conclude that we have jurisdiction over the merits appeal

but not the clerk’s imposition of costs.

      1. Notice of Appeal

      “A court of appeals acquires jurisdiction of an appeal only upon the filing

of a timely notice of appeal; this requirement is mandatory and jurisdictional.”

United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004) (quotation and

brackets omitted). Federal Rule of Appellate Procedure 4(a)(1)(B) affords an

appellant in a civil case in which the government, its official, or a government

agency is a party sixty days to lodge a timely notice of appeal. Rule 4(a)(5),

however, permits the district court to extend the deadline for thirty days if there is

good cause or excusable neglect.




                                           -5-
      The district court found that Moles had good cause for an extension

because his IFP motion was still pending. Defendants suggest this was error

because the concept of “good cause” excludes matters such as pending IFP

motions, which pose no bar to filing a timely notice of appeal. See Bishop v.

Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004) (“‘Good cause comes into play

in situations in which there is no fault-excusable or otherwise. In such situations,

the need for an extension is usually occasioned by something that is not within

the control of the movant.’” (quoting Fed. R. App. P. 4(a)(5) Advisory Comm.

Notes (2002))). We need not decide whether the district court erred in extending

the deadline, however, because as defendants point out, even if the court abused

its discretion by granting Moles an extension without good cause (thus rendering

the notice of appeal untimely), the motion for extension itself served as the

functional equivalent of a timely notice of appeal.

      Generally, courts “liberally construe the requirements of [Federal] Rule [of

Appellate Procedure] 3.” Smith v. Barry, 502 U.S. 244, 248 (1992). “If a

document filed within the time specified by Rule 4 gives the notice required by

Rule 3, it is effective as a notice of appeal.” Id. at 248-49. The functional

equivalent of a notice of appeal must be a timely filed document that provides

notice of the party taking the appeal, the judgment being appealed, and the court

to which the appeal is taken. See United States v. Smith, 182 F.3d 733, 735

(10th Cir. 1999).

                                         -6-
      Moles moved for an extension within the sixty-day appeal window. Thus,

whether his motion serves as a functional equivalent of a notice of appeal depends

on whether it provides adequate Rule 3 notice. On this score, the motion clearly

indicates that Moles sought to appeal the district court’s judgment granting

defendants qualified immunity. Although the motion did not designate this court

as the court to which the appeal would be taken, the motion does designate the

United States District Court for the Western District of Oklahoma as the court

from which the appeal was taken, and defendants clearly recognized that an

appeal from that court would lie only in this court. See United States v.

Treto-Haro, 287 F.3d 1000, 1002 n.1 (10th Cir. 2002). Therefore, Moles’ motion

for an extension served as the functional equivalent of a timely notice of appeal,

and we have jurisdiction to consider the merits of this appeal.

      2. Assessment of Costs

      The assessment of costs, however, is another matter. Under Fed. R. Civ. P.

54(d)(1), a party may seek review of a clerk’s cost award in the district court. We

have interpreted Rule 54(d)(1) to mean that a party must seek review of the award

in the district court to challenge it on appeal. Bloomer v. United Parcel Serv.,

Inc., 337 F.3d 1220, 1221 (10th Cir. 2003) (per curiam). Yet nothing in the

record shows that Moles asked the district court to review the cost award, and by

failing to do so, he has waived appellate review of the award in this court. See id.




                                         -7-
      Merits

      1. Eighth Amendment Qualified Immunity

      We turn, then, to the merits of this appeal. The district court, in adopting

the magistrate judge’s report and recommendation, determined that summary

judgment based on qualified immunity was appropriate because the undisputed

material facts did not establish a constitutional violation. “We review the district

court’s grant of summary judgment de novo, applying the same legal standard

used by the district court.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.

2009). Summary judgment is appropriate if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In the qualified immunity context, the plaintiff must make a

two-prong showing, first that the facts alleged establish a constitutional violation,

and second that the right at issue was clearly established. Thomas v. Durastanti,

607 F.3d 655, 662 (10th Cir. 2010). We have discretion to decide which of these

inquiries to consider first, id., and upon our de novo review, we agree with the

magistrate judge’s conclusion that Moles failed to show any constitutional

violation.

      A. Failure to Protect

      First, the magistrate judge explained that to establish a failure-to-protect

claim, Moles was required to make an objective showing that he was incarcerated

under conditions posing a substantial risk of serious harm, and a subjective

                                         -8-
showing that prison officials were deliberately indifferent to his safety. See

Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). The magistrate

judge observed, however, that Moles failed to establish the subjective component

of his claim because the undisputed material facts did not show that defendants

were deliberately indifferent to his safety. Rather, the record confirms that when

Moles was transferred to FCI-El Reno, there were no known members of the

disruptive groups identified in his CIM file housed in general population. Doc.

134 (Br. in Support of Mot. for Sum. Judgment), Ex. 1 at 2-3. Moreover, during

intake, Moles expressly indicated on his screening form that he knew of no reason

why he should not be placed in general population. See Doc. 68 (Special Report)

at 2-3; id., Ex. 2. Although Moles acknowledged on this form that he was a CIM

case, he denied ever helping law enforcement agents or testifying against anyone.

Id., Ex. 2. Consequently, defendants placed him in general population in

accordance with the requirements of his CIM status.

      Moles suggests that his CIM status created an inference that he faced a

greater level of danger if placed in general population, but the magistrate judge

correctly recognized that a mere inference alone is inadequate to establish

liability. Rather, as the magistrate judge explained, “the defendant ‘must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.’” R., Vol. 1 at 41

(quoting Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003)). Because

                                         -9-
there was no evidence that any defendant actually knew of a substantial risk of

harm to Moles, summary judgment was proper. To the extent Moles attempted to

charge some defendants with supervisory liability, the magistrate judge properly

concluded that his claim failed because there was no evidence that any supervisor

or subordinate violated his rights. See id. at 45 (quoting Dodds v. Richardson,

614 F.3d 1185, 1198 (10th Cir. 2010) (“[W]hen a plaintiff sues an official under

Bivens . . . for conduct arising from his or her superintendent responsibilities, the

plaintiff must plausibly plead and eventually prove not only that the official’s

subordinates violated the Constitution, but that the official by virtue of his own

conduct and state of mind did so as well.” (quotation omitted))).

      B. Retaliation

      Moles’ retaliation claim likewise failed. His claim was predicated on the

following facts: He had filed grievances related to the August 18th fight and

questioning why he was transferred to FCI-El Reno when he had “separations at

[that] facility.” Doc. 68 (Special Report), Ex. 12. Contemporaneously, Moles

was found guilty of the disciplinary charges stemming from the August 19th fight

and sanctioned with administrative segregation, loss of good time credits, and

re-designation to a higher-security facility. Nearly a month later, on October 31,

2007, Moles asked to be transferred to a state facility or “witsec.” Id. His

request was denied pending completion of the investigation into the August 18th

fight, at which time “a determination [would] be made concerning [his] protection

                                         -10-
and transfer needs.” Doc. 150, Ex. 22 (Response to grievance by defendant

Ledezma). That investigation was completed on November 5, 2007, Doc. 219,

Ex. 31, and as a result, Moles was charged again with fighting and recommended

for disciplinary action, Doc. 150, Ex. 14. However, because he had already lost

his good time credits and faced a security transfer due to the August 19th fight,

the second fighting charge was not referred to the disciplinary authority, as “[n]o

other meaningful sanctions were available.” Doc. 227, Ex. 1 (Benefiel Decl.) at

8. Eventually, Moles was transferred to a United States penitentiary.

      Given these circumstances, Moles claimed that the second fighting charge

for the August 18th altercation was false and purely retaliatory for questioning his

placement at FCI-El Reno. He also alleged that defendants purposefully delayed

the investigation into the August 18th fight (which allowed the other inmates’

injuries to heal) because his grievance had exposed defendants’ efforts to coverup

their mistake in placing him in general population.

      The magistrate judge recognized, however, that these facts did not establish

a retaliatory motive because the charge for the August 18th fight was never

referred to a disciplinary hearings officer and sanctions were never imposed.

Moreover, defendants did not return Moles to general population, id., Ex. 3

(Rooney Decl.) at 7, and he was formally separated from the three other inmates

involved in the August 18th fight, Doc. 219, Ex. 31 at 5. Moles claims the




                                        -11-
delayed investigation allowed the inmates’ injuries to heal, but all injuries were

recorded shortly after the fights, id. at 2; Doc. 150, Ex. 7.

      Additionally, the magistrate judge correctly concluded that Moles failed to

establish causation. See R., Vol. 1 at 52 (citing Peterson v. Shanks, 149 F.3d

1140, 1144 (10th Cir. 1998) (“[A] plaintiff must prove that but for the retaliatory

motive, the incidents to which he refers, including the disciplinary action, would

not have taken place.” (quotation omitted))). Indeed, rather than suggest a

retaliatory motive to punish Moles for filing grievances relating to the

August 18th fight, defendants’ efforts to investigate the incident were actually

prompted by Moles’ grievances demanding that something be done about it.

Moles insisted that he was re-designated to a federal penitentiary in retaliation for

filing his grievances, but the evidence confirms he was re-designated because he

was found guilty of fighting and possessing a weapon, Doc. 68 (Special Report),

Ex. 4. And, that decision was not made by defendants. See Doc. 227, Ex. 4

(Sauers Decl.) at 2. Under these circumstances, summary judgment was proper.

      C. Deliberate Indifference

      Moles’ third claim alleged that defendants were deliberately indifferent to

his safety by approving his re-designation to a federal penitentiary. This claim is

readily defeated, however, because as the magistrate judge concluded, prisoners

“have no constitutionally protected interest to serve their sentences in a particular

institution, or to be transferred or not transferred from one institution to another.”

                                          -12-
R., Vol. 1 at 55 (citing Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983);

Overturf v. Massie, 385 F.3d 1276, 1279 (10th Cir. 2004)). But more to the point,

Moles’ re-designation was purely a function of the sanctions imposed against him

for participating in the August 19th fight, and defendants did not choose the

penitentiary to which Moles was transferred. To the extent Moles alleged that

defendants were deliberately indifferent in transferring him to FCI-El Reno, the

magistrate judge explained that there was no evidence to support that claim. At

most, Moles perhaps alleged facts to create an inference supporting a theory of

supervisory liability, but as we have already explained, that was clearly

insufficient to survive summary judgment.

      2. Injunctive Relief

      Moles also sought injunctive relief to enjoin his transfer to a United States

penitentiary. He failed to show a likelihood of success on the merits, however,

and thus the magistrate judge correctly determined that relief should be denied.

See Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.

2007) (setting forth the requirements for obtaining a preliminary injunction,

which include showing a substantial likelihood of success on the merits).

      3. FTCA

      Finally, Moles invoked the FTCA but failed to name the United States as a

party or exhaust his administrative remedies. The magistrate judge accordingly

denied Moles leave to amend his complaint on futility grounds. See Duplan v.


                                        -13-
Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (holding that “[a]s a jurisdictional

prerequisite, the FTCA bars claimants from bringing suit in federal court until

they have exhausted their administrative remedies” and “a premature complaint

cannot be cured through amendment” (quotation omitted)). We perceive no error.

                                   CONCLUSION

          The district court’s judgment is AFFIRMED for substantially the same

reasons stated in the magistrate judge’s report and recommendation dated

December 30, 2010, which was adopted by the district court’s order dated

February 16, 2011. Moles’ “Motion to Seal and Restrict Computer Access and

any Final Decision in Case” is DENIED, but his motion to proceed on appeal

in forma pauperis is GRANTED. In accord with our order dated June 28, 2011,

Moles is directed to continue making partial payments until the entire filing fee is

paid. 5



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




5
      Moles withdrew his application for appointment of appellate counsel; we
express no opinion on the matter.

                                         -14-
