                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 3, 2008
                                                                Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT
                                                                    Clerk of Court


    ERNEST LEE THOMAS, JR.,

               Plaintiff-Appellant,

    v.                                                  No. 07-3214
                                                 (D.C. No. 04-CV-3237-CM)
    ROGER WERHOLTZ, Secretary of                          (D. Kan.)
    Corrections; LOUIS E. BRUCE,
    Warden, Hutchinson Correctional
    Facility; STEVE DECHANT, Deputy
    Warden, Hutchinson Correctional
    Facility; JOHN TURNER, Deputy
    Warden, Hutchinson Correctional
    Facility; R. VIERYA, Unit Team
    Manager, Hutchinson Correctional
    Facility; ROBERT DALE, Unit Team
    Manager, Hutchinson Correctional
    Facility; B. KIDD, Unit Team
    Manager, Hutchinson Correctional
    Facility; PATTY JAMES, Unit Team,
    Hutchinson Correctional Facility;
    (fnu) ELLIS, Shift Lieutenant,
    Hutchinson Correctional Facility;
    KANSAS DEPARTMENT OF
    CORRECTIONS;

               Defendants-Appellees.




                            ORDER AND JUDGMENT *

*
       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
                                                                       (continued...)
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.



      Plaintiff Ernest Lee Thomas, Jr., a prisoner of the State of Kansas

appearing pro se, appeals from the district court’s orders dismissing one claim

and granting summary judgment to the defendant prison officials and correctional

officers on all of the other claims in this civil rights action filed pursuant to

42 U.S.C. § 1983. Mr. Thomas also moves for appointment of counsel. We have

jurisdiction under 28 U.S.C. § 1291, deny the request for appointed counsel, and

affirm.

                                           I.

      Mr. Thomas was formerly housed in the East Medium Custody Unit of the

Hutchinson Correctional Facility. On May 12, 2004, Mr. Thomas declined to

“sign off” on a grievance to indicate that it had been satisfactorily resolved, and

returned it, unsigned, to the inbox of defendant Patty James, his unit team

counselor. This was not the first time Mr. Thomas had refused to sign off on a

grievance. On May 13, Ms. James searched Mr. Thomas’s cell and confiscated

twelve letters of a sexually explicit nature. On May 14, Mr. Thomas was


*
 (...continued)
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.

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relocated to maximum security housing (without his personal items for the first

nineteen hours), and his picture was placed on the lock-box. His job assignment

was also changed, which reduced his income from $60.00 a month to $9.00 a

month. Mr. Thomas grieved his relocation and then sued in July 2004, asserting

that defendants violated his constitutional rights when they retaliated against him

for refusing to sign off on the grievance on May 12.

      Defendants filed a motion for summary judgment, and Mr. Thomas

responded. Defendants offered evidence showing that Ms. James was directed by

her supervisor, Robert Dale, to search Mr. Thomas’s cell because other inmates

had recently complained that he had tried to intimidate them into engaging in

sexual relations with him, that he was transferred to maximum security housing

because the letters seized from his cell corroborated these complaints, and that his

picture was placed on the lock-box because he was labeled a high-profile inmate

as a result of this corroboration. Defendants argued that Mr. Thomas had

insufficient evidence to support his claims against them.

      The district court noted the evidence supporting Mr. Thomas’s assertion

that he had a good prison record on his unit until May 13, 2004, but granted

summary judgment on all aspects of Mr. Thomas’s five claims as to all of the

defendants, except for Ms. James. See R., Doc. 81. The district court explained

that Mr. Thomas failed to produce evidence tending to show, or even failed to

allege, that any of the other defendants participated in or acquiesced in

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Ms. James’s actions, established a policy or custom that led to her actions and his

alleged injury, or engaged in a conspiracy with her. Id. at 8-10. The court clearly

and succinctly explained why each defendant, except Ms. James, was entitled to

summary judgment. See id. at 4-10. The court did not, at this point, grant

summary judgment to Ms. James on Mr. Thomas’s fourth claim that she violated

his First Amendment rights in retaliation for his refusal to sign off on a grievance

by taking his personal letters, changing his job classification from the highest rate

of pay to the lowest, conspiring with others to have him removed from medium

security, and having him transferred to maximum security. Id. at 6. The court

also did not grant summary judgment to Ms. James on Mr. Thomas’s third claim

that she violated his First and Fourteenth Amendment rights by taking his

personal letters at all. Id. at 5-6. The court invited supplemental briefing on

whether Mr. Thomas’s third claim stated a valid claim. Id.

      In response to the court’s order, Ms. James filed a motion to alter the

judgment, and Mr. Thomas responded. The district court then dismissed

Mr. Thomas’s third claim, that Ms. James violated his First and Fourteenth

Amendment rights when she confiscated his letters from his cell. See id.,

Doc. 90. The court determined that Mr. Thomas’s right to receive mail was based

in the Constitution, but his right to retain mail was based in state law, not the

Constitution. Id. at 2. The court further determined that Mr. Thomas had an

adequate post-deprivation remedy under state law (to which he had not availed

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himself), and so the taking of his property did not implicate the Due Process

Clause. Id. at 2-3. The court concluded that Mr. Thomas’s claim that Ms. James

violated his First Amendment and Fourteenth Amendment rights when she

confiscated his letters was not valid, and the court dismissed that claim. Id. at 3.

      Ms. James later filed a second motion for summary judgment based on

newly discovered evidence, and Mr. Thomas responded. The district court

considered the untimely motion to prevent manifest injustice and granted

summary judgment to Ms. James on the sole remaining claim in the suit. Id.,

Doc. 122. The court reasoned that

      [t]he uncontroverted evidence indicates that defendant had a
      legitimate reason for shaking down plaintiff’s cell—other inmates
      alleged that he was engaging in sexually predatory behavior. And
      the only connection between plaintiff’s refusal to sign off on the
      grievance and his transfer was temporal proximity. That is simply
      not enough in this case, particularly given the evidence that plaintiff
      regularly filed grievances and refused to sign off on them.

Id. at 4. The court concluded that any inference of retaliation was negated and, in

addition, Ms. James had no authority to order Mr. Thomas’s transfer in the first

place. Id. at 4-5.

                                          II.

      We review the grant of summary judgment de novo, applying the same

legal standard as the district court under Fed. R. Civ. P. 56(c). Shero v. City of

Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Summary judgment is appropriate

“if the pleadings, the discovery and disclosure materials on file, and any

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affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Rule 56(c). “We review the

entire record on summary judgment de novo in the light most favorable to the

party opposing summary judgment.” Seamons v. Snow, 206 F.3d 1021, 1026

(10th Cir.2000). Mr. Thomas, as the nonmoving party, “must proffer some

probative evidence that would be sufficient to sustain [his] burden of persuasion

at trial, but []he need not offer conclusive proof to the court in order to withstand

summary judgment.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1116

(10th Cir. 2007). “Where different ultimate inferences may properly be drawn,

the case is not one for a summary judgment.” Seamons, 206 F.3d at 1026

(quotation omitted).

      Between Mr. Thomas’s two briefs, he argues that: (1) defendants violated

his right to due process by labeling, branding, and managing him as a sex

offender without a hearing, when he has never been convicted of a sex crime;

(2) defendants retaliated against him; (3) defendants never established the

reliability of their confidential informant; (4) the district court erred by allowing

defendants and their counsel to testify without personal knowledge; (5) the

district court erred by granting summary judgment to all of the defendants;

(6) defendants violated his right to procedural due process by illegally taking one

point for a serious misconduct that was not proscribed by rule or policy;

(7) defendants violated his First Amendment rights by retaliating against him;

                                          -6-
(8) the district court erred by allowing defendants to use his whole prison record

to support their motions for summary judgment; (9) defendants violated his right

to due process by taking personal letters out of his cell that prison officials had

allowed to go through the U.S. mail to him; and (10) his transfer to a grossly

more onerous condition of maximum security and the termination of his

high-paying job were retaliatory acts done to chill his exercise of his First

Amendment right to file grievances about prison officials’ misconduct.

Defendants argue that because Mr. Thomas did not raise his first issue in the

district court, it should be deemed waived. See Rhine v. Boone, 182 F.3d 1153,

1154 (10th Cir. 1999).

      Based upon our review of the record, we conclude that Mr. Thomas’s first

issue was adequately raised in the district court. Mr. Thomas initially raised the

sexual offender issue—albeit in vague and somewhat inartful terms—in his

complaint, noting that certain defendants “excuse [sic] plaintiff of being a sexual

predator[].” R., Doc. 1, ¶ 12; see id. ¶ 10 (averring that Mr. Thomas’s picture

was placed on the lock-box “so every guard . . . can view plaintiff as a sexual

predator[]”); id. ¶ 16 (noting that “the issue whether plaintiff is a sexual

predator[] is a matter for the Courts to deceide [sic] rather than low level prison

officials”). Moreover, defendant Warden Louis E. Bruce’s request that

Mr. Thomas be designated and managed as a sex offender was approved by the

Director of Sex Offender Management, Rick Fischli, on February 11, 2005, before

                                          -7-
defendants filed their first motion for summary judgment on May 26, 2005. See

Aplt. Br., App. B; R., Doc. 43. Mr. Thomas asserted in his response to that

motion that he was “label[ed] and branded as a sexually predatory, sex offender,

high profile [inmate] without due process. . . . Inmate had a protected liberty

interest in not being labeled a sex offender, and he was thus entitled to a

procedural due process before being so labeled.” R., Doc. 49, at 5. The district

court discussed this allegation in its order granting in part and denying in part

defendants’ first summary judgment motion. See id., Doc. 81, at 4-5. Therefore,

we have considered this issue, as well as the others.

      Nevertheless, after a careful review of the district court’s orders in light of

the parties’ briefs, the record, and the governing law, we are convinced that the

district court correctly decided this case. We are unpersuaded by Mr. Thomas’s

assertions of error, and we AFFIRM for substantially the same reasons set forth in

the district court’s thorough orders.

      Mr. Thomas’s motion for appointment of counsel is denied. The judgment

of the district court is AFFIRMED. We remind Mr. Thomas that he is responsible

for making partial payments until the $455.00 filing fee is paid in full.


                                                     Entered for the Court



                                                     Jerome A. Holmes
                                                     Circuit Judge

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