                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        February 23, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ROBERT D. GANDY,

      Plaintiff - Appellant,

v.                                                         No. 15-1164
                                              (D.C. No. 1:12-CV-03331-MSK-MJW)
JERRY BARBER, Teacher II, Arkansas                          (D. Colo.)
Valley Correctional Facility; RICK
MARTINEZ, Programs Manager, Arkansas
Valley Correctional Facility; STEVE
HARTLEY, Warden, Arkansas Valley
Correctional Facility; RICK RAEMISCH,
Director, Colorado Department of
Corrections,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________

      Robert D. Gandy, a Colorado prisoner proceeding pro se, brought this civil

rights case under 42 U.S.C. § 1983 asserting four claims for relief. The district court

dismissed two of his claims for failure to state a claim and entered summary

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
judgment in favor of the remaining two defendants on the other two claims.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

judgment.

I. Background

      Mr. Gandy is a Canadian national. In his amended complaint, he asserted that

his rights under the Vienna Convention on Consular Relations, Apr. 24, 1963,

21 U.S.T. 77, 596 U.N.T.S. 261, were violated when prison officials refused to allow

him to have unmonitored telephone calls with the Canadian consulate. Per prison

policy, prisoners who wished to make unmonitored legal calls were required to

provide an attorney registration number and other information pertaining to the legal

counsel. Because the consulate did not have such information, the policy prevented

Mr. Gandy from having unmonitored calls with the consulate. Meanwhile, his mail

correspondence with the consulate was treated in the same manner as correspondence

with the courts or an attorney.

      Mr. Gandy’s other three claims stem from an interaction he had with defendant

Jerry Barber, a teacher at the prison, which preceded Mr. Gandy’s transfer to a

different prison. According to the amended complaint, Mr. Barber began yelling at

Mr. Gandy during a conversation they were having with Mr. Gandy’s work

supervisor and another prisoner about the apprenticeship program. Mr. Barber

allegedly threatened to have Mr. Gandy removed from the apprenticeship program

and the prison. The interaction prompted Mr. Gandy to file a grievance against



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Mr. Barber. Two months later, Mr. Gandy was laterally transferred to a different

prison.

      The amended complaint alleged that in retaliation for filing the grievance,

Mr. Barber made good on his threat to have Mr. Gandy transferred to a different

prison. The amended complaint alleged further that defendant Rick Martinez, a

programs manager at the prison, violated Mr. Gandy’s rights by authorizing or

approving the transfer and that defendant Steve Hartley, the warden, failed to

exercise his authority as supervisor with respect to the transfer.

      Mr. Hartley and Mr. Martinez filed a “Motion to Dismiss and/or for Summary

Judgment,” raising numerous arguments. Defendant Rick Raemisch, the acting

director of the Colorado Department of Corrections, also filed a motion to dismiss,

adopting those arguments and raising the additional argument that Mr. Gandy did not

have a private right of action under the Vienna Convention. The motions were

referred to a magistrate judge, who recommended dismissing the claims against all

three defendants. According to the magistrate judge’s report, Mr. Gandy’s Vienna

Convention claim was time-barred and Mr. Gandy had failed to exhaust his

administrative remedies with respect to his claims against Mr. Hartley and

Mr. Martinez.




                                            3
      After receiving objections from Mr. Gandy and Mr. Raemisch1, the district

court adopted the recommendations in part, dismissing only Mr. Hartley and

Mr. Raemisch from the case. As pertinent to this appeal, the court concluded that

Mr. Gandy’s Vienna Convention claim failed because the Vienna Convention does

not confer individually enforceable rights, and therefore Mr. Gandy lacked a judicial

remedy for any alleged violations of it. And the court concluded that Mr. Gandy’s

fourth claim failed because Mr. Gandy had not made any showing that Mr. Hartley

had personally participated in, or even been aware of, Mr. Gandy’s transfer to

another prison.

      The remaining defendants, Mr. Barber and Mr. Martinez, moved for summary

judgment, and Mr. Gandy filed a response. In granting the motion, the district court

concluded that Mr. Gandy could not establish a prima facie claim against Mr. Barber

because even if he did threaten to have Mr. Gandy transferred, Mr. Gandy adduced

no evidence that he had the authority to transfer him or that he took any action on the

alleged threat. The court also concluded that Mr. Gandy made no showing that a

lateral transfer from one prison to another would chill an inmate of ordinary firmness

from filing a grievance. Thus, even assuming Mr. Gandy could show that




      1
         Mr. Raemisch did not object to the magistrate judge’s recommendation that
the first claim should be dismissed on statute of limitations grounds. Rather, he
argued that if the district court chose not to adopt that part of the recommendation, it
should consider dismissing that claim on the alternative grounds set forth in the
defendants’ motions to dismiss that the magistrate judge did not rely on.

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Mr. Martinez transferred him because he filed a grievance, his alleged injury was

insufficient to state a retaliation claim.

II. Analysis

       In his opening brief on appeal, Mr. Gandy argues that the district court erred

by (1) concluding that the Vienna Convention does not confer upon him an

enforceable right to unmonitored telephone calls with the Canadian consulate;

(2) finding he failed to allege that Mr. Hartley personally participated in causing him

to be transferred; (3) concluding that there was no evidence Mr. Barber helped bring

about the transfer; and (4) denying his discovery request for the e-mail

correspondence between the defendants. To the extent he attempts to raise additional

issues in his reply brief, we decline to consider them. See Garcia v. LeMaster,

439 F.3d 1215, 1220 (10th Cir. 2006).

       We review de novo the district court’s dismissal of two of Mr. Gandy’s claims

for failure to state a claim upon which relief could be granted. Gee v. Pacheco,

627 F.3d 1178, 1183 (10th Cir. 2010). We also review de novo the district court’s

grant of summary judgment on another of his claims. Bryson v. City of Oklahoma

City, 627 F.3d 784, 787 (10th Cir. 2010). We review for an abuse of discretion the

district court’s discovery rulings. Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647

(10th Cir. 2008).

       We construe liberally the allegations in pro se complaints. Childs v. Miller,

713 F.3d 1262, 1264 (10th Cir. 2013). But pro se parties must follow the same rules

of procedure as other litigants, see Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.

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2007), and we will not supply additional factual allegations or construct legal

theories on their behalf, see Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.

2009).

A. Vienna Convention Claim

         Although the district court dismissed Mr. Gandy’s first claim on the ground that

the Vienna Convention does not confer individually enforceable rights, “we may affirm

on any basis supported by the record, even if it requires ruling on arguments not reached

by the district court or even presented to us on appeal.” Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1130 (10th Cir. 2011). For the purpose of this appeal, we assume without

deciding that the Vienna Convention confers individually enforceable rights and affirm

on the ground that Mr. Gandy’s amended complaint failed to state a claim under the

provisions he relied upon. See Medellín v. Texas, 552 U.S. 491, 506 n.4 (2008)

(assuming without deciding that Article 36 of the Vienna Convention grants foreign

nationals certain rights that are individually enforceable); see also United States v.

Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir. 2001) (noting that whether the Vienna

Convention gives rise to any individually enforceable rights remains an open question

and that the Tenth Circuit has declined to address the issue).

         In arguing that prison officials violated his rights under the Vienna Convention by

denying him the right to have unmonitored calls with the Canadian consulate, Mr. Gandy

relies exclusively on Article 35, titled, “Freedom of communication.” The amended

complaint cited only the first two subsections of the article; the remaining subsections of



                                              6
Article 35 pertain to the consular bag and the consular carrier, and are clearly

inapplicable to non-consular officials. Those two subsections provide as follows:

       (1) The receiving State shall permit and protect freedom of communication
       on the part of the consular post for all official purposes. In communicating
       with the Government, the diplomatic missions and other consular posts,
       wherever situated, of the sending State, the consular post may employ all
       appropriate means, including diplomatic or consular couriers, diplomatic or
       consular bags and messages in code or cipher. However, the consular post
       may install and use a wireless transmitted only with the consent of the
       receiving State.

       (2) The official correspondence of the consular post shall be inviolable.
       Official correspondence means all correspondence relating to the consular
       post and its functions.

21 U.S.T. 77, 596 U.N.T.S. 261.

       Interpretation of an international treaty is a question of law we review de novo.

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 988

(10th Cir. 2004). When interpreting a treaty, we first look to its terms to determine its

meaning. Id. These provisions say nothing about allowing foreign nationals to make

unmonitored telephone calls from prison to their consulate. Moreover, the amended

complaint conceded that Mr. Gandy’s written correspondence with the consulate was

“treated in the same manner as correspondence with an attorney or the courts,” Aplt.

App. at 47, belying the notion that Mr. Gandy was denied the right to freely communicate

with the Canadian consulate. In the absence of express language, we decline to construe

the term “freedom of communication” as including a right to unmonitored telephone calls

for foreign nationals who are convicted in state court and become state prisoners. Nor are

we persuaded by Mr. Gandy’s contention that the prison’s policy violates the requirement


                                             7
under the Vienna Convention that official correspondence with the consular post be

inviolable. “Correspondence” is defined as “the communication between persons by an

exchange of letters” or “any communication by letter.” Webster’s Third New

International Dictionary 511 (1976). We therefore conclude this claim was properly

dismissed, albeit on different grounds than those relied upon by the district court. See

Richison, 634 F.3d at 1130.

B. Claim Against Mr. Hartley

       Mr. Gandy argues the district court erred by dismissing his claim against

Mr. Hartley because the allegations in the amended complaint failed to show that he

personally participated in having Mr. Gandy transferred to another prison. We

discern no error.

       Although a prisoner does not have a constitutional right to remain at a

particular prison, prison officials do not have “unbridled discretion to transfer

inmates in retaliation for exercising their constitutional rights.” Frazier v. Dubois,

922 F.2d 560, 561-62 (10th Cir. 1990). To establish a § 1983 claim based on

supervisor liability, a plaintiff must show an “affirmative link” between the

supervisor and the unconstitutional acts of his or her subordinates. Serna v. Colo.

Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006). “[T]he supervisor must be

personally involved in the constitutional violation, and a sufficient causal connection

must exist between the supervisor and the constitutional violation.” Id. (internal

quotation marks omitted).



                                             8
      Mr. Gandy attempts to connect Mr. Hartley’s conduct to his transfer in two

ways. First, according to the amended complaint, after Mr. Barber threatened to

remove him from the apprenticeship program, Mr. Gandy wrote to the Canadian

consulate that he feared he might be retaliated against if he filed a grievance. The

complaint states that his letter prompted the consulate to send Mr. Hartley an official

letter informing him that Mr. Gandy should not be retaliated against for exercising

his right to file a grievance. However, even assuming Mr. Hartley received such a

letter and that Mr. Gandy’s transfer was retaliatory, neither fact establishes that

Mr. Hartley was personally involved in the transfer.

      Second, Mr. Gandy’s allegation that Mr. Hartley had, in the past, made

statements expressing his desire to have Mr. Gandy transferred is also unavailing.

A prisoner claiming retaliation must “allege specific facts showing retaliation

because of the exercise of the prisoner’s constitutional rights.” Frazier, 922 F.2d

at 562 n.1. Even assuming the allegation is true, statements made before Mr. Gandy

filed his grievance cannot be used to show that the filing of the grievance was the

“but for” cause of any action by Mr. Hartley. See Peterson v. Shanks, 149 F.3d 1140,

1144 (10th Cir. 1998) (concluding that allegations of retaliation fail where the

plaintiff does not show that a defendant’s alleged retaliatory motive was the “but for”

cause of his or her actions).

C. Claim Against Mr. Barber

      Mr. Gandy contends that the district court erred by granting summary

judgment in favor of Mr. Barber because “even though [he] did not have the ability

                                            9
on his own to transfer Gandy . . . , he had the ability and the intention to confer with

others who did have the ability to transfer Gandy from the facility, and . . . did confer

and recommend that Gandy be transferred.” Aplt. Br. at 7. We discern no error.

       Summary judgment is appropriate if the moving party shows “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). Where, as here, the moving party has met its

initial burden of demonstrating the absence of a genuine issue of material fact, the

burden shifts to the nonmoving party to set forth specific facts showing that there is a

genuine issue for trial. Schneider v. City of Grand Junction Police Dep’t, 717 F.3d

760, 767 (10th Cir. 2013). The nonmoving party “may not simply rest upon its

pleadings” but instead must “set forth specific facts that would be admissible in

evidence in the event of trial from which a rational trier of fact could find for the

nonmovant.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)

(internal quotation marks omitted) (“[F]acts must be identified by reference to

affidavits, deposition transcripts, or specific exhibits . . . .”); see also Bones v.

Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (“To defeat a motion for

summary judgment, evidence, including testimony, must be based on more than mere

speculation, conjecture, or surmise.”). Mr. Gandy has identified no such facts,

offering only speculation and conjecture in support of his argument. Under these

circumstances, the district court properly determined that Mr. Gandy’s conclusory

allegations were insufficient to withstand Mr. Barber’s motion for summary

judgment.

                                             10
D. Discovery Ruling

       In response to Mr. Gandy’s written request for copies of any e-mails referring

to him that the defendants sent or received around the time of his transfer, the

defendants stated that “they [did] not have access to any e-mails nor [did] they recall

any concerning this issue.” R. at 218. Mr. Gandy argues that the district court erred

by denying his motion to compel the defendants to produce the e-mails. However, he

offers no evidence that supports the inference that the defendants purposefully

withheld evidence or acted in bad faith. And in the absence of any evidence that the

e-mails in fact existed, we cannot say that the district court abused its discretion by

denying Mr. Gandy’s motion to compel.

III. Conclusion

       The judgment of the district court is affirmed. Mr. Gandy’s motion to proceed

on appeal without prepayment of fees pursuant to 28 U.S.C. § 1915 is granted, and he

is reminded of his continued obligation to make partial payments until the filing fee

is paid in full.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




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