                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 19, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 STEPH EN TH EN E SPARK S,

               Plaintiff - Appellant,                    No. 06-1113
          v.                                               D. Colo.
 LT. FO STER, Arkansas Valley                 (D.C. No. 03-cv-1929-W YD-M EH )
 Correctional Facility; LT.
 SM ELTZER, Limon Correctional
 Facility; LT. SK IP STRODE, Limon
 Correctional Facility; LT. ERIC
 HOFFM AN, Sterling Correctional
 Facility; LT. N EA L M A G ELSON,
 Sterling Correctional Facility; and
 CAPT. M ICHELLE NYCZ, Sterling
 Correctional Facility,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist in the determination



      *
        This order and judgment is not binding precedent except under the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.
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.

      Stephen Sparks, a Colorado state prisoner, brought a 42 U.S.C. § 1983

action complaining about the condition of his confinement. Appearing pro se, he

appeals from the district court’s judgment granting defendants’ motions to

dismiss and summary judgment. W e affirm.

                                   I. Background

      Sometime in 1995, Sparks claims to have been incorrectly labeled a gang

member by Lieutenant Foster w hile at the Arkansas Valley Correctional Facility.

Upon transfer to the Limon Correctional Facility, Sparks learned he was

considered a security threat and classified within a Security Threat Group (STG).

Later, Sparks was moved to the Sterling Correctional Facility. W hile there,

Sparks claims to have been told by Lieutenant Hoffman that he was considered a

leading member of a prison gang called “The Family.” W hen Sparks asked if he

could file a grievance to prove he is not a gang member, Lieutenant Hoffman said

no.

      Sometime later, Sparks also claims: Captain Nycz at the Sterling

Correctional Facility forced him to cross a prisoner strike to work in the kitchen

despite inmate threats to any prisoner who crossed the line; he was selected based

on his STG classification and because the prison officials intended to use his

leadership role within the prison population to diffuse the volatile situation;

                                          -2-
Lieutenant M agelson of the Sterling Correctional Facility threatened him with

administrative segregation if he refused the assignment; and the assignment put

him in charge of other inmates and forced him to do the guard’s job. Sparks

believes being labeled a member of “The Family” by prison officials and being

forced to cross the strike line placed his life in danger with rival gangs.

      On October 17, 2003, while still housed at the Sterling Correctional

Facility, Sparks filed an amended complaint against Lieutenant Foster of the

Arkansas Valley Correctional Facility; Lieutenants Smelzer and Strode of the

Limon Correctional Facility; and Lieutenants H offman, M agelson and Captain

Nycz of the Sterling Correctional Facility. Sparks asserted the defendants

violated his: (1) Fourteenth Amendment right to procedural due process, (2)

Sixth Amendment right to confrontation and (3) Eighth Amendment right to be

free of cruel and unusual punishment. He sought monetary damages and

injunctive relief to require prison authorities to establish a procedure for prisoners

to challenge gang or STG classification and to have his name removed from the

STG list.

      Sparks’ Fourteenth and Eighth Amendment claims rested on the same

factual assertions. He claimed the defendants denied him the equal protections of

life and liberty by falsely accusing him of being a gang member without due

process of law and the unwarranted label of being a gang member of “The

Family” constitutes cruel and unusual punishment because it put his life in danger

                                          -3-
with rival gangs. Further, he claims Nycz, Hoffman and M agelson placed his life

in danger w hen they forced him to cross a prisoner work strike in the facility

kitchen at Sterling Correctional Facility, knowing of threats made against anyone

who crossed the picket line. Sparks’ Sixth Amendment right to confrontation

claim was based on the fact he was unable to present witnesses to disprove any

gang affiliation.

      A. M otion To D ismiss

      On M arch 4, 2004, defendants filed a motion to dismiss Sparks’ claims.

The matter was referred to a magistrate judge who issued a Recommendation for

Partial Dismissal on December 2, 2004. Sparks filed an objection to the

magistrate’s Recommendation on January 6, 2005. Based in part on the

magistrate judge’s recommendations, on February 2, 2005, the district judge

dismissed Sparks’ Fourteenth Amendment claim with prejudice because the

Colorado prison rules and regulations do not create a liberty interest in not being

labeled a gang member. The district judge also dismissed Sparks’ Sixth

Amendment claim with prejudice, reasoning the Sixth Amendment only applies to

criminal proceedings and the gang classification is not a criminal proceeding.

The district court did not dismiss the Eighth Amendment claim.

      The district judge concluded Sparks’ allegations were sufficient to raise a

question whether the defendants deliberately exposed Sparks to harm at the hands

of other inmates. Addressing Sparks’ Eighth Amendment claim against the

                                         -4-
defendants in their official capacities, it determined the Eleventh Amendment

precluded Sparks’ claim for monetary damages. Although Eleventh Amendment

immunity does not apply to injunctive relief, the district court held injunctive

relief was moot as to all defendants except Foster, the only defendant currently

employed at the Arkansas Valley Correctional Facility. 1

      As to the Eighth Amendment claims against defendants in their individual

capacities, the district court denied the motion to dismiss because Sparks had

sufficiently pled an Eighth Amendment claim to warrant monetary damages under

the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e).

      B. M otion for Summary Judgment

      After the district court ruled on the M otion to Dismiss, defendants filed a

M otion for Summary Judgment. Among other arguments, the defendants asserted

Sparks failed to exhaust available administrative remedies under the PLRA, 42

U.S.C. § 1997e(a) by failing to use the administrative grievance process. Sparks

filed a “M otion to Deny Defendant(s) M otion for Summary Judgment” and

included affidavits regarding the merits of his claims, but did not address the

issue of exhaustion. The summary judgment motion was referred to the

magistrate judge who recommended defendants’ motion be granted in part and the

      1
         Prior to the district judge’s ruling, Sparks was transferred back to the
Arkansas V alley Correctional Facility. Contrary to the ruling, however,
Lieutenant Foster left his position at the Arkansas V alley Correctional Facility to
become an STG coordinator at the Colorado State Penitentiary several years prior
to this complaint being filed.

                                         -5-
law suit dismissed without prejudice in its entirety based upon Sparks’ failure to

exhaust his administrative remedies. Sparks filed an objection to the magistrate

judge’s recommendation on December 20, 2005. In it, Sparks claimed for the

first time “[a] trial would reveal through records held by the defendants that the

Plaintiff did attempt to exhaust administrative remedies, by requesting from

facility chain of command, starting with Plaintiffs’ Case M anager Olsen, to Head

Case M anager Clarkson, and assistant W arden Soares, a grievance on the issue of

being forced to work in a hostile area, as a tool to defuse a facility uprising.” (R.

Vol. I, Doc. 77 at 2.) Sparks further asserted that once the authorities declined to

issue a grievance the issue was ended.

      On February 21, 2006, the district court ruled on the defendants’ M otion

for Summary Judgment after considering the magistrate judge’s recommendations.

The district judge deemed Sparks’ objections to the magistrate’s recommendation

as timely and conducted a de novo review of his objections. The district court

granted the summary judgment motion and dismissed Sparks’ Eighth Amendment

claims without prejudice because Sparks failed to prove he exhausted the

available administrative remedies. A separate judgment dismissing Sparks’

complaint with prejudice was entered on February 22, 2006, which incorporated

both the order granting partial dismissal and the order granting summary

judgment for the defendants.

      Sparks filed a notice of appeal and motion to proceed in form a pauperis

                                          -6-
(ifp) on M arch 22, 2006. The district court denied Sparks’ motion to proceed ifp

on April 17, 2006. It determined, pursuant to 28 U.S.C. § 1915(a)(3), the appeal

was not taken in good faith because Sparks did not show the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal. Sparks renew ed his ifp application with this Court and

consented to the disbursement of partial payments from his prison account toward

the filing fee.

                                    II. Discussion

       A. Fourteenth and Sixth Amendment Claims

       W e review the district court’s dismissal of Sparks’ claims de novo pursuant

to Rule 12(b)(6), accepting all well-pleaded allegations as true and viewing them

in the light most favorable to Sparks. See Sutton v. Utah State Sch. for the Deaf

& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Because Sparks appears pro se,

we review his pleadings and other papers liberally and hold them to a less

stringent standard than those drafted by attorneys. See Hall v. Bellmon, 935 F.2d

1106, 1110 & n.3 (10th Cir. 1991). Dismissal of a pro se complaint under Rule

12(b)(6) for failure to state a claim “is proper only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him an opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th

Cir. 2001) (quotation omitted).

       Sparks asserts he was denied Fourteenth Amendment procedural due

                                          -7-
process and Sixth Amendment right to confrontation because he was not afforded

the opportunity to present witnesses and produce evidence to demonstrate he is

not a gang member. A due process claim under the Fourteenth Amendment can

only be maintained where the government has interfered with a constitutionally

cognizable liberty or property interest. See Bd. of Regents of State C olls. v. Roth,

408 U.S. 564, 569 (1972). Changing a prisoner’s classification generally does not

deprive him of liberty under the due process clause alone. Hewitt v. Helms, 459

U.S. 460, 468 (1983), overruled on other grounds by Sandin v. Conner, 515 U.S.

472, 479-83 (1995). A liberty interest may be implicated, however, when State

laws and prison regulations create a liberty interest to w hich due process

protections apply. M eachum v. Fano, 427 U.S. 215, 226, 229 (1976).

         In Colorado, “[c]lassification decisions are within the discretion of the

Department of Corrections and a particular classification does not implicate any

liberty interest protected by the Fourteenth Amendment Due Process Clause.”

Green v. Nadeau, 70 P.3d 574, 577 (Colo. App. 2003) (citing Deason v. Kautzky,

786 P.2d 420, 422 (Colo. 1990) (en banc)). Because Sparks does not have a

liberty interest in a particular classification, be it a gang member or within an

STG, he cannot maintain an action based on the classification under the

Fourteenth Amendment. Therefore, the district court properly dismissed Sparks’

claim.

         The district court also properly dismissed Sparks’ Sixth Amendment claim.

                                            -8-
“The protections provided by the Sixth Amendment are explicitly confined to

‘criminal prosecutions.’” United States v. Deninno, 103 F.3d 82, 86 (10th Cir.

1996) (quoting Austin v. United States, 509 U .S. 602, 608 (1993)). Sparks’

classification as a gang member was an administrative decision made by the

Department of Corrections and not part of a criminal prosecution.

      B. Eighth Amendment Claim

      The district court granted the defendants’ M otion for Summary Judgment

and dismissed Sparks’ Eighth A mendment claim for failure to exhaust

administrative remedies. A district court’s finding of failure to exhaust

administrative remedies and grant of summary judgment are reviewed de novo.

Fitzgerald v. C orrections C orp. of Am., 403 F.3d 1134, 1138, 1140 (10th Cir.

2005). W e apply the same legal standard on review of summary judgment as the

district court. Id. at 1140. W e may “affirm a district court decision on any

grounds for which there is a record sufficient to permit conclusions of law, even

grounds not relied upon by the district court.” United States v. Sandoval, 29 F.3d

537, 542 n.6 (10th Cir. 1994).

      The PLRA requires prisoners to exhaust available administrative remedies

before bringing an action under 42 U.S.C. § 1983 in federal court. See 42 U.S.C.

§ 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). At the time of the district

court’s decision, our precedent required prisoners to affirmatively plead

exhaustion. See Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210 (10th

                                         -9-
Cir. 2003) (concluding § 1997e(a) imposes a pleading requirement on the

prisoner). During the pendency of this appeal, the Supreme Court issued Jones v.

Bock, wherein it determined “that failure to exhaust is an affirmative defense

under the PLRA, and that inmates are not required to specifically plead or

demonstrate exhaustion in their complaints.” 127 S.Ct. 910, 921 (2007).

W hether a pleading requirement or the subject of an affirmative defense, “there is

no question that exhaustion is mandatory under the PLRA and that unexhausted

claims cannot be brought in court.” Id. at 918-19 (citing Porter, 534 U.S. at 524).

      W hen raising an affirmative defense in a motion for summary judgment,

“[t]he defendant . . . must demonstrate that no disputed material fact exists

regarding the affirmative defense asserted.” Hutchinson v. Pfeil, 105 F.3d 562,

564 (10th Cir. 1997) (citing M iller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.

1965)). “If the defendant meets this initial burden, the plaintiff must then

demonstrate with specificity the existence of a disputed material fact.” Id. “If

the plaintiff fails to make such a showing, the affirmative defense bars his claim,

and the defendant is entitled to summary judgment as a matter of law.” Id.

      Here, appellees referred to Colorado Department of Corrections

Administrative Regulation No. 850-4 which requires an inmate to file a grievance

no later than thirty days from the date the offender knew or should have known of

the facts giving rise to a grievance. They then noted Sparks alleged he could not

file a grievance for classification issues but he made no such allegation with

                                         -10-
regard to the violation of his Eighth Amendment rights in association with his

temporary job assignment in the facility kitchen. Therefore, they contend Sparks’

claim should be dismissed because he failed to exhaust his remedies. 2

      In his response, Sparks did not mention the exhaustion argument. Although

he attached two sworn affidavits he authored and numerous grievances, none of

the materials referenced his Eighth Amendment claim. Rather, he apparently

relied on his amended complaint, wherein he checked a box indicating he

exhausted the available administrative remedies and explained a prisoner’s

classification cannot be complained of in the prison system, thus he is allowed to

seek direct relief in court. However, in objection to the magistrate’s

recommendation for summary judgment based on exhaustion, Sparks claimed he

attempted to exhaust administrative remedies but w as denied the opportunity.

This was the first time Sparks responded to the failure to exhaust claim.

      In granting the summary judgment motion, the district court determined

that Sparks failed to exhaust the available administrative remedies for his Eighth

Amendment claim. The district court determined Sparks’ request for a review of



      2
        The appellees never filed an answer to Sparks’ complaint or raised the
issue of exhaustion in their M otion to D ismiss. The issue of exhaustion was first
raised in their M otion for Summary Judgment.
       Ordinarily, it is best to plead an affirmative defense in an answer or
amended answer. Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006).
However, “a defendant may use a motion for summary judgment to test an
affirmative defense which entitles that party to a judgment as a matter of law.”
Hutchinson, 105 F.3d at 564.

                                        -11-
the issue does not satisfy the exhaustion requirement because he had to file an

inmate grievance and seek intermediate and final administrative review if the

prison authorities deny the requested relief.

       Sparks asserts on appeal the district court incorrectly ruled on this issue.

He repeats his argument that administrative review of the issue is foreclosed by

regulation, pointing to the Colorado Department of Corrections Administrative

Regulations grievance procedures which prohibit a grievance for prisoner

classification. See Colorado Department of Corrections, Admin. Reg. No. 850-04

(A ugust 1, 2003) (“This grievance procedure may not be used to seek review of . .

. classification . . . . Classification is entirely at the discretion of the

administrative head and classification committee of each institution.”). 3 He now

further asserts his case manager determined, because the classification comm ittee

placed him in the facility kitchen during the prison uprising, his grievance w as a

classification issue and not subject to review through the grievance procedures.

In his reply brief, Sparks alleges he requested a grievance on the issue, but his

case manager directly prevented him from filing grievances.

       Other circuits have held that administrative remedies are not “available”

when prison officials refuse to provide prisoners with grievance forms. See

       3
         Other portions of this regulation have been amended since Sparks filed his
complaint. The amended regulation provides the same prohibition on filing
classification grievances with a different indexing format. See Colorado
Department of Corrections, Admin. Reg. No. 850-04(IV)(A)(4) (effective Dec.
15, 2006).

                                            -12-
M itchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (holding the district court

erred in dismissing inmate’s complaint for failure to exhaust administrative

remedies when court did not address inmate’s allegation that prison officials

failed to provide necessary grievance forms); M iller v. Norris, 247 F.3d 736, 738,

740 (8th Cir. 2001) (“W e believe that a remedy that prison officials prevent a

prisoner from ‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a) . . . .”). 4

Sparks’ attempts to frame the issue under this precedent on appeal is too little, too

late.

        W hile Sparks’ objection to the magistrate’s recommendation was both

timely and specific, as required by Rule 72(b) of the Federal Rules of Civil

Procedure, the issue of being denied a grievance form was never brought before

the magistrate judge for consideration. “In this circuit, theories raised for the

first time in objections to the magistrate judge’s report are deemed waived.”

United States v. Garfinkle, 261 F.3d 1030, 1032 (10th Cir. 2001). Furthermore,



        4
         W e have cited to either one or both of these cases favorably in a number
of unpublished opinions. See, e.g., Gonyea v. M ink, No. 06-1176, 2006 W L
3291702 *1 (10th Cir. Nov. 14, 2006) (unpublished); Colem an v. City & County
of Denver, 197 Fed. Appx. 764, 767 (10th Cir. Sept. 22, 2006) (unpublished);
Price v. Shinn, 178 Fed. Appx. 803, 805 n.3 (10th Cir. Apr. 28, 2006)
(unpublished); Baughman v. Harless, 142 Fed. Appx. 354, 359 (10th Cir. Aug. 2,
2005) (unpublished); Baldauf v. G aroutte, 137 Fed. Appx. 137, 141 (10th Cir.
June 24, 2005) (unpublished); Johnson v. Wackenhut Corrections Corp., 130 Fed.
Appx. 947, 950 (10th Cir. M ay 11, 2005) (unpublished); Garcia v. Taylor, 113
Fed. Appx. 857, 859 (10th Cir. Oct. 19, 2004) (unpublished); Hoover v. West, 93
Fed. Appx. 177, 181 (10th Cir. Feb. 19, 2004) (unpublished); Gonzales-Liranza v.
Naranjo, 76 Fed. Appx. 270, 273 (10th Cir. Oct. 2, 2003) (unpublished).

                                          -13-
Sparks’ allegations failed in form and substance to meet the burdens of

overcoming summary judgment.

      To defeat a motion for summary judgment, evidence must be based on more

than mere speculation, conjecture or surmise. See Rice v. United States, 166 F.3d

1088, 1091-92 (10th Cir. 1999). “W hen a motion for summary judgment is made

and supported [by affidavits with sworn or certified papers], an adverse party may

not rest upon the mere allegations or denials of the adverse party’s pleading, but

the adverse party’s response, by affidavits or as otherw ise provided in [Rule 56],

must set forth specific facts showing that there is a genuine issue for trial.” Fed.

R. Civ. P. 56(e). Sparks’ allegation of being denied a grievance form was not

supported by sworn pleadings, affidavit, or other evidentiary material. Phillips v.

Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992) (“Unsubstantiated allegations

carry no probative weight in summary judgment proceedings.”). In this context,

Sparks w as required to go beyond his pleadings and set forth specific facts to

show he was denied grievance forms or was prevented from exhausting available

administrative remedies. “Rule 56(e) permits a proper summary judgment motion

to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c),

except the mere pleadings themselves . . . .” Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986). Sparks obviously knew the value of an affidavit, since he

submitted two attached to his summary judgment response brief. The absence of




                                         -14-
any evidence, other than Sparks’ allegations, is insufficient to preserve the issue. 5

      To the extent Sparks believes other reasons excused him from exhausting

administrative remedies, he is mistaken. “Even when [a] prisoner seeks relief not

available in grievance proceedings . . . exhaustion is a prerequisite to suit.”

Porter, 534 U.S. at 524. Thus, Sparks’ claim the administrative procedures w ere

futile does not excuse a lack of exhaustion. The Supreme Court has stressed it

“will not read futility or other exceptions into statutory exhaustion requirements

where Congress has provided otherwise.” Booth v. Churner, 532 U.S. 731, 741

n.6 (2001).

      Regarding Sparks’ renewed application to proceed ifp on appeal, we have

review ed his contentions and adopt the district court’s finding that this appeal is

not taken in good faith. Coppedge v. United States, 369 U.S. 438, 446 (1962).




      5
         W e note the district court declined to address the remaining arguments
made by the appellees in support of summary judgment, in part, because of the
total exhaustion rule. See Ross v. County of Bernalillo, 365 F.3d 1181, 1188-90
(10th Cir. 2004) (holding where a prisoner submits a complaint with one or more
unexhausted claims the district court should ordinarily dismiss the entire action
without prejudice). The Supreme Court specifically rejected this rule in Jones v.
Bock. 127 S.Ct. at 923-26. In addition to declaring PLRA exhaustion an
affirmative defense, the Supreme Court determined the total exhaustion rule does
not “comport with the purpose of the PLRA to reduce the quantity of inmate
suits.” Id. at 925. Courts must now dismiss unexhausted claims as it encounters
them and proceed with exhausted claims on a claim-by-claim basis. Id. at 926.
       The Supreme Court’s ruling does not change the outcome of this case. The
Eighth A mendment claim was the only remaining claim in the suit. Sparks’
failure to exhaust this claim ended the matter and the district court appropriately
declined to address the remainder of appellees’ arguments.

                                          -15-
W e deny Sparks’ motion to proceed ifp and order him to immediately remit the

full amount of the filing fee. Sparks’ motion for leave to file the reply brief out

of time is granted.

      AFFIRM ED.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




                                         -16-
