                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 26 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JOSEPH EDMOND DEYONGHE,

                Plaintiff-Appellant,
                                                          No. 04-6218
    v.                                              (D.C. No. 03-CV-364-R)
                                                          (W.D. Okla.)
    ROBIN WARD, Case Manager;
    CAROL CLOUD, Counselor; FRANK
    MORRIS, Case Manager; DAVID
    PETETE, Auditor; ERIC FRANKLIN,
    Warden; MELINDA GUILFOYLE,
    Director designee for the DOC,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. 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.
      Joseph DeYonghe, an inmate in the Oklahoma prison system, brought three

claims against defendants under 42 U.S.C. § 1983. The first claim, which alleged

violations of Mr. DeYonghe’s right to due process, was dismissed as untimely.

The district court granted summary judgment to defendants on both the second

claim, alleging a violation of Mr. DeYonghe’s right against self-incrimination,

and the third claim, also concerning due process. Mr. DeYonghe appeals. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                            I.

      In Oklahoma, inmates are classified into one of four class levels for

purposes of earning good-time credits, and classifications are periodically

reviewed by adjustment review committees.        See Okla. Stat. tit. 57, § 138(B), (F).

On December 3, 1998, when he was at Class Level 4 (the highest good-time-

credit-earning level), Mr. DeYonghe had a classification adjustment review. One

of the subjects addressed at the review was whether he should be admitted into

the Oklahoma Department of Corrections’ (ODOC) sex offender treatment

program (SOTP). To participate in the SOTP, Mr. DeYonghe was required to

admit his sexual offenses. He refused to do so at the review, citing the protection

against self-incrimination provided by the Fifth Amendment to the U.S.

Constitution. Next to the blank labeled “Refused,” a member of the adjustment




                                         -2-
review committee wrote “SOT Denies Guilt.” R. Doc. 21, Attach. B. Mr.

DeYonghe did not participate in the SOTP, and he remained at Class Level 4.

       On or about August 25, 2000, an ODOC auditor noted that Mr. DeYonghe

had refused participation in the SOTP on December 3, 1998. He also noted that

Mr. DeYonghe had continued to be at Class Level 4, even though a program

refusal should have placed him at Class Level 1. Mr. DeYonghe was notified that

he had erroneously been earning good-time credits at a Class Level 4 rate since

December 3, 1998, and that, as a consequence, 719 earned credits were being

deducted from his record. He was also informed that he would remain at Class

Level 1 until he accepted the SOTP.

       Mr. DeYonghe protested the loss of his credits through the prison grievance

process and into the Oklahoma state courts. Following its decision in   Childers v.

Booher , No. HC 2001-0440, at 9 (Okla. Crim. App. May 9, 2002) (unpublished

decision), which found the SOTP program in violation of the self-incrimination

provisions of the Oklahoma Constitution, the Oklahoma Court of Criminal

Appeals granted Mr. DeYonghe’s request for extraordinary relief and remanded

the proceedings to the district court.   DeYonghe v. Guifoyle , No. MA 2002-0178

(Okla. Cr. App. May 21, 2002). Mr. DeYonghe regained his 719 good-time

credits.




                                           -3-
       After successfully challenging the deduction of his credits, Mr. DeYonghe

brought suit, in the district court under § 1983, against the officials allegedly

involved in the adjustment review and in deducting his credits. Accepting a

comprehensive report and recommendation by the magistrate judge, the district

court determined that one of Mr. DeYonghe’s claims was time-barred and that

correctional officials were entitled to qualified immunity on his remaining two

claims. 1 It dismissed the untimely claim and granted summary judgment to

defendants on the two other claims. Mr. DeYonghe appeals.

                                            II.

       Before we reach the merits of Mr. DeYonghe’s claims, we must determine

whether Mr. DeYonghe exhausted his administrative remedies, as required by the

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

exhaustion of administrative remedies generally is a mandatory prerequisite to

filing a § 1983 claim concerning prison life.     Id. ; Jernigan v. Stuchell , 304 F.3d

1030, 1032 (10th Cir. 2002).



1
        The district court also determined that Mr. DeYonghe’s claims for
monetary relief against the defendants in their official capacities were barred by
the Eleventh Amendment. R. Doc. 32 at 2. On appeal, Mr. DeYonghe asserts
that he is pursuing claims for monetary relief against defendants only in their
personal capacities, Aplt. Br. at 2, and consequently we need not consider the
district court’s Eleventh Amendment ruling.     See Hafer v. Melo , 502 U.S. 21,
30-31 (1991) (Eleventh Amendment does not bar claims for monetary damages
against officials in their individual capacities).

                                            -4-
       With regard to Mr. DeYonghe’s first claim, the record does not indicate

that he ever raised in any grievance the issue of the composition of the adjustment

review panel. This omission indicates that this particular claim was not

exhausted. Ordinarily, a petition containing unexhausted claims must be

dismissed without prejudice in its entirety.         Ross v. County of Bernalillo , 365 F.3d

1181, 1189-90 (10th Cir. 2004). But the PLRA also provides that the court may

dismiss a claim without requiring exhaustion, “[i]n the event that a claim is, on its

face, frivolous, malicious, fails to state a claim upon which relief can be granted,

or seeks monetary relief from a defendant who is immune from such relief.” 42

U.S.C. § 1997e(c)(2). For the reasons discussed in section III below, we conclude

that Mr. DeYonghe’s first claim falls within § 1997e(c)(2), and we need not

remand for the district court to dismiss the complaint for lack of exhaustion.

       With regard to Mr. DeYonghe’s second and third claims, the government

argues that, because Mr. DeYonghe did not file a claim with the Oklahoma Office

of Risk Management, he did not complete the administrative process, and,

therefore, his claims should be dismissed.

       Oklahoma Operation Memorandum 090124 sets forth the inmate/offender

grievance process for Oklahoma correctional facilities.           See OP-090124 (effective




                                               -5-
Mar. 23, 2004), available at www.doc.state.ok.us/offtech/op090124.htm.         2
                                                                                   The

memorandum specifies that, after trying to resolve an issue through informal

means, the inmate should submit an “Inmate/Offender Grievance Report Form,”

to which the “reviewing authority” will respond.        Id. at § V. If the grievance is

denied by the reviewing authority, the inmate may appeal to “the administrative

review authority.”   Id. at § VII.B. There is only one level of appeal: “The ruling

of the administrative review authority . . . is final and will conclude the internal

administrative remedy available to the inmate/offender within the jurisdiction of

the Oklahoma Department of Corrections.”           Id. at § VII.D.1. “The department

grievance procedure, however, does not satisfy the additional requirements for

exhaustion of administrative remedies required by the Oklahoma Governmental

Tort Claims Act [OGTCA]. . . .”     Id. at § VII.D.2. These additional requirements

for OGTCA claims require the filing of a claim with the Office of Risk

Management. Okla. Stat. tit. 51, § 156(A) & (C).

      The OGTCA, however, categorically excludes liability for claims involving

the “operation or maintenance of any prison, jail or correctional facility.” Okla.




2
       We assume that the relevant portions of the currently effective Operation
Memorandum are similar to, if not the same as, those provisions of the version
effective when Mr. DeYonghe was pursuing his grievances. To the extent that the
versions may differ, we note that it was the State’s responsibility to support its
argument by providing necessary materials to the court.

                                           -6-
Stat. tit. 51, § 155(24). Consequently, none of the claims involved in this case are

cognizable under the OGTCA, and the Office of Risk Management could not offer

Mr. DeYonghe any form of relief. That being the case, he was not required to file

a claim with the Office of Risk Management to exhaust his available

administrative remedies with regard to the claims he asserts in this action.    See

OP-090124, at § VII.D.1;        see also Booth v. Churner , 532 U.S. 731, 736 & n.4

(2001) (noting that the parties agreed that the statute presupposes some form of

redress, and stating, “[w]ithout the possibility of some relief, the administrative

officers would presumably have no authority to act on the subject of the

complaint, leaving the inmate with nothing to exhaust”). Mr. DeYonghe filed a

grievance regarding the revocation of his earned credits, and appealed the denial

of that grievance. Therefore, like the district court, we conclude that Mr.

DeYonghe exhausted his available administrative remedies with regard to the

revocation of his 719 credits.

       For these reasons, we proceed to the merits of Mr. DeYonghe’s claims.

                                             III.

       Mr. DeYonghe’s first claim alleges that the December 3, 1998 adjustment

review violated his Fifth   3
                                and Fourteenth Amendment rights to due process


3
    Mr. DeYonghe cites to the Sixth Amendment, but, as it is the Fifth
Amendment (as applied to the states through the Fourteenth Amendment) that
                                                                  (continued...)

                                              -7-
because there were only two officials at the review, not three as required by

Oklahoma statute.   See Okla. Stat. tit. 57, § 138(F). The district court determined

that this claim should be dismissed because it was not filed within the applicable

limitations period. We review this dismissal de novo, accepting the well-pleaded

allegations of Mr. DeYonghe’s complaint as true, and viewing them in the light

most favorable to him.   See Stidham v. Peace Officer Standards & Training   ,

265 F.3d 1144, 1149 (10th Cir. 2001).

      The limitations period for a § 1983 claim arising in Oklahoma is two years.

See Meade v. Grubbs , 841 F.2d 1512, 1522 (10th Cir. 1988). “A civil rights

action accrues when facts that would support a cause of action are or should be

apparent.” Fratus v. DeLand , 49 F.3d 673, 675 (10th Cir. 1995) (quotation

omitted); see also Smith v. City of Enid ex rel. Enid City Comm’n   , 149 F.3d 1151,

1154 (10th Cir. 1998) (“A civil rights action accrues when the plaintiff knows or

has reason to know of the injury which is the basis of the action.”) (quotation

omitted). Mr. DeYonghe’s complaint was filed on March 14, 2003, more than

four years after the alleged violations. Mr. DeYonghe asserts that he only learned

of the requirement of three officials in September 2000, but the facts underlying



3
 (...continued)
provides his constitutional right to due process, we shall construe his pro se
pleadings liberally and assume that he intended to rely on the Fifth Amendment
and the Fourteenth Amendment as the basis for his first and third claims.

                                          -8-
his claim were or should have been apparent to him on the date of the adjustment

review. Consequently, his cause of action accrued on December 3, 1998, and his

first claim is untimely.   4



       Mr. DeYonghe argues that his complaint was timely because he could not

have brought his claims until 2001 at the earliest, as no relief was available until

the state trial court took the initial step toward recognizing the unconstitutionality

of Oklahoma’s SOTP program by making the legal and factual findings

underlying Childers . Aplt. Br. at 5. The district court, however, held only the

first claim to be untimely. That claim concerns the procedure used during the

December 3, 1998 adjustment review; it does not involve the self-incrimination



4
        In addition, we doubt that this claim rises to the level of a federal
constitutional violation. “The Due Process Clause guarantees due process only
when a person is to be deprived of life, liberty, or property.”     Templeman v.
Gunter , 16 F.3d 367, 369 (10th Cir. 1994). “A prisoner’s liberty interests may
arise either from the Due Process Clause itself or from state law.”      Perkins v.
Kan. Dep’t of Corr. , 165 F.3d 803, 808 (10th Cir. 1999). But the Due Process
Clause itself does not create a protected liberty or property interest in good-time
classification systems, see Wolff v. McDonnell , 418 U.S. 539, 557 (1974), and
Oklahoma’s good-time classification system is discretionary, not mandatory,         see
Okla. Sta. tit. 57, § 138. Thus, Mr. DeYonghe does not have a        right to be placed
in a classification that allows him to earn any particular level of good-time
credits, so that the procedure used to assign him to a classification level (i.e.,
whether his review was by a two-member or a three-member committee) would
not implicate the Due Process Clause.        See Templeman , 16 F.3d at 369
(“Changing an inmate’s prison classification ordinarily does not deprive him of
liberty, because he is not entitled to a particular degree of liberty in prison.”);
Antonelli v. Sheahan , 81 F.3d 1422, 1431 (7th Cir. 1996) (“[Plaintiff] has no due
process interest in the opportunity to earn good time credits.”).

                                          -9-
issues addressed in Childers . Therefore, the timing of      Childers is inapplicable to

the timeliness of Mr. DeYonghe’s first claim for relief.

       The district court did not err in dismissing Mr. DeYonghe’s first claim.

                                              IV.

       Mr. DeYonghe’s second claim alleges that correctional officials violated

his Fifth Amendment right to avoid self-incrimination by penalizing him for

refusing to incriminate himself (namely, for crediting him with a program refusal

during the December 3, 1998 review and then penalizing him for the program

refusal by revoking his 719 good-time credits). The district court granted

summary judgment to defendants on grounds of qualified immunity. “We review

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

standard used by the district court.”      Simms v. Okla. ex rel. Dep’t of Mental

Health & Substance Abuse Servs.         , 165 F.3d 1321, 1326 (10th Cir. 1999).

       Initially, the defendants argue that the second and third claims are also

time-barred. As determined by the district court, however, these claims involve

an attack on the validity of Mr. DeYonghe’s sentence, and therefore they could

not be brought under § 1983 until Mr. DeYonghe successfully challenged the

removal of his credits.   Heck v. Humphrey , 512 U.S. 477, 489-90 (1994). This

was accomplished when the Oklahoma court granted Mr. DeYonghe relief on




                                              -10-
May 21, 2002, and his second and third claims are timely because they were filed

within two years of that date.

      Turning to the merits, the defendants argue that they are entitled to

qualified immunity on these claims because, as of December 3, 1998, the date of

the hearing, and August 25, 2000, the date the ODOC auditor authorized the

deduction of the 719 credits, it was not clearly established that penalizing an

offender for a program refusal violated the offender’s Fifth Amendment rights,

when the program refusal was due to the offender’s refusal to admit guilt in

connection with a sex offender treatment program. Mr. DeYonghe relies on

Lile v. McKune , 24 F. Supp. 2d 1152 (D. Kan. 1998), and      Lile v. McKune , 224

F.3d 1175 (10th Cir. 2000),   rev’d , 536 U.S. 24 (2002), in support of his

contention that the defendants’ actions violated clearly established law.

      Before determining whether the law was clearly established, however, we

must determine whether Mr. DeYonghe suffered a violation of his rights.        Saucier

v. Katz , 533 U.S. 194, 201 (2001). We conclude that Mr. DeYonghe cannot make

this showing with regard to his second claim.

      In reversing our decision in   Lile v. McKune , the Supreme Court held that

the Fifth Amendment was not violated when an inmate lost prison privileges that

were offered to encourage participation in a sex offender treatment program.      See

McKune , 536 U.S. at 45 (plurality opinion);     id. at 48-49 (O’Connor, J., concurring


                                          -11-
in the judgment). Further, in   Searcy v. Simmons , 299 F.3d 1220, 1226-27 (10th

Cir. 2002), we held that there was no unconstitutional compulsion when a Kansas

prisoner was deprived of opportunities to earn additional good-time credits by

being classified at a lower credit-earning level when he refused to admit guilt in

connection with sex offender treatment.      See also Gwinn v. Awmiller , 354 F.3d

1211, 1226 (10th Cir.),   cert. denied , 125 S. Ct. 181 (2004) (relying on   Searcy in

finding no unconstitutional compulsion where Colorado prisoner was forced to

choose between entering program or losing ability to earn additional good-time

credits).

       We recognize that, on its face, this case involves the revocation of earned

credits, that neither Searcy nor McKune involved the loss of earned credits, and

that the loss of earned credits is a harsher sanction than the loss of privileges or

the opportunity potentially to earn credits at a higher level in the future. The

revocation involved here, however, was a retroactive implementation of an action

which, in the ODOC’s view, should have been taken at the time of the adjustment

review. In August 2000, Mr. DeYonghe was not told that his credits would be

revoked unless he accepted the SOTP program, and therefore was then subject to

alleged compulsion in connection with the revocation of earned credits; rather, he

was told that the consequences of his prior refusal to admit guilt were

retroactively being implemented, and he was deprived only of credits earned since


                                           -12-
December 3, 1998, not earned credits from prior periods. Essentially, then, Mr.

DeYonghe’s challenge is analogous to the situation in     Searcy –he refused to admit

guilt, so he could not participate in the SOTP, and this “program refusal”

eventually resulted in his reclassification to a lower credit-earning class. In

Searcy , we concluded that this type of choice is not compulsion of

self-incriminating testimony in violation of the Fifth Amendment.    5
                                                                         Therefore,

Mr. DeYonghe cannot establish that he was deprived of his Fifth Amendment

right to avoid self-incrimination, and the district court did not err in granting

summary judgment to defendants on Mr. DeYonghe’s second claim.           6




5
       We are mindful of Justice Kennedy’s statements for the plurality in
McKune , that “respondent’s decision not to participate in the Kansas SATP did
not extend his term of incarceration” and that respondent’s decision did not
“affect his eligibility for good-time credits or parole,” 536 U.S. at 38, and of
Justice O’Connor’s statement, in her concurrence in the judgment, that the
imposition of a penalty of longer incarceration “would surely implicate a ‘liberty
interest.’” 536 U.S. at 52. Our judgment today should not be read as indicating
that a revocation of earned credits cannot constitute compulsion for purposes of a
self-incrimination analysis. Our judgment is limited to the circumstances before
us, where the revocation was in the nature of a ministerial action that
retroactively implemented the consequences of the choice presented to Mr.
DeYonghe at the December 3, 1998 adjustment review.
6
       Moreover, under Chavez v. Martinez , 538 U.S. 760, 769 (2003) (plurality
opinion); id. at 778 (Souter, J., concurring in the judgment), it appears that six
justices of the Supreme Court would find either no Fifth Amendment violation or
no civil liability for defendants under these circumstances.

                                          -13-
                                              V.

       Mr. DeYonghe’s third claim asserts a violation of his Fifth and Fourteenth

Amendment rights to due process when the ODOC auditor, without any further

process, unilaterally revoked his 719 earned good-time credits based on the

alleged program refusal. Again, “[w]e review the district court’s grant of

summary judgment de novo . . . .”       Simms , 165 F.3d at 1326.

       As stated above, we must first determine whether Mr. DeYonghe had a

right to due process in connection with the revocation of his credits.        Saucier , 533

U.S. at 201. Because Oklahoma has created a liberty interest in earned good-time

credits, as discussed below, we conclude that Mr. DeYonghe did have a right to

due process in connection with the revocation of his credits.         See Mitchell v.

Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996).

       States may create liberty interests.     Perkins v. Kan. Dep’t of Corr. ,

165 F.3d 803, 808 (10th Cir. 1999).       In Waldon v. Evans , 861 P.2d 311, 313

(Okla. Crim. App. 1993), the Oklahoma Court of Criminal Appeals held that

Oklahoma “has created a liberty interest in earned credits and an inmate is

entitled to due process protection prior to the loss of those credits.”      See also

Okla. Stat. tit. 57, § 138 (providing that earned credits may be subtracted for

disciplinary reasons “following due process”); R. Doc. 21, Attach. K (OP-060213

§ III.B. (effective May 1, 1998) (“Demotions will consist of a reduction in class


                                              -14-
only and will be determined by the adjustment review committee/unit treatment

team. Loss of accrued credits will remain a disciplinary committee function.”)).

Because Oklahoma has provided a right to earned credits and has specified

methods of forfeiture of such earned credits, it has afforded Mr. DeYonghe a

constitutionally-protected liberty interest in his earned credits that entitles him to

due process protections.    See Wolff v. McDonnell , 418 U.S. 539, 557 (1974);

Mitchell , 80 F.3d at 1444.

      Nevertheless, moving to the second factor of the qualified immunity test,

we conclude that the district court properly held that it was not clearly

established, as of August 25, 2000, that Mr. DeYonghe had a federal right to due

process protections in connection with the revocation of his allegedly erroneously

awarded credits. The crucial fact here is that the ODOC auditor unilaterally

revoked the credits under the belief that they were erroneously awarded. In

Stephens v. Thomas , 19 F.3d 498, 501 (10th Cir. 1994), we held that the

revocation of erroneously awarded good-time credits did not infringe on a

protected liberty interest and did not implicate the constitutional right to due

process. We distinguished     Stephens in Mayberry v. Ward , 43 Fed. Appx. 343,

345-47 (10th Cir. 2002) (unpublished decision), where we held that it was

improper for an ODOC auditor to revoke earned credits unilaterally, even if the

credits allegedly were awarded mistakenly, because the credits were sanctioned by


                                          -15-
the unit classification committee when they were awarded.     Mayberry , however,

was issued on August 2, 2002, well after the actions at issue, and it is an

unpublished, nonbinding decision; for these reasons, it cannot be considered to

have clearly established the law in this circuit before the August 25, 2000

revocation involved in this case. The district court did not err in granting

summary judgment to defendants based on qualified immunity.

        The judgment of the district court is AFFIRMED. Mr. DeYonghe’s

request for appointment of counsel is DENIED. His motion for supplemental

pleading, while being construed liberally as requested, is DENIED.

Mr. DeYonghe’s motion to proceed on appeal in forma pauperis is GRANTED,

and he is reminded of his responsibility to make partial payments until his filing

fee is paid in full. The mandate shall issue immediately.



                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge




                                         -16-
