                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 29 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    TONY LAMAR VANN,

                  Plaintiff-Appellant,

    v.                                                    No. 01-6102
                                                    (D.C. No. 00-CV-880-M)
    OKLAHOMA STATE BUREAU OF                              (W.D. Okla.)
    INVESTIGATION; A. DEWADE
    LANGLEY, Director of OSBI; JERRY
    V. HIRE, Deputy Director of OSBI,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before EBEL , KELLY , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
      Tony Lamar Vann appeals from the district court’s order dismissing his

complaint brought pursuant to 42 U.S.C. § 1983 against the Oklahoma State

Bureau of Investigation (OSBI), its director, A. Dewade Langley, and its deputy

director, Jerry V. Hire. Vann’s complaint charges that the defendants created and

maintained false or incorrect information in his criminal history record, resulting

in his being denied parole and access to a lower-level security classification and

prison programs. The complaint asserts legal claims for “false documentation,”

slander, irreparable injury to reputation, conspiracy, “imparting or conveying false

information,” and “false records and reports.” R. doc. 2 at 3. Vann seeks

damages, including punitive damages, and expungement or deletion of the false

information from his criminal history record.

      The magistrate judge assigned to this case filed a report and

recommendation in which he reasoned that Vann had failed to allege the

deprivation of any constitutional right. The district court adopted the

recommendation and dismissed Vann’s complaint pursuant to Fed. R. Civ. P.

12(b)(6). We review this dismissal    de novo , accepting the well-pleaded

allegations of Vann’s complaint as true, and viewing them in the light most

favorable to him.   Stidham v. Peace Officer Standards & Training     , 265 F.3d 1144,

1149 (10th Cir. 2001).




                                          -2-
      Vann’s principal argument on appeal is that the district court deprived him

of his Seventh Amendment right to jury trial by entering the 12(b)(6) dismissal.

The proper entry of a 12(b)(6) dismissal does not violate the Seventh Amendment,

however, because where such a dismissal is appropriate, there is no issue for trial.

Christensen v. Ward , 916 F.2d 1462, 1466 (10th Cir. 1990). As will be seen, the

12(b)(6) dismissal was entirely appropriate here.

      1. Damage claims

      The OSBI is charged by Oklahoma statute with maintaining criminal history

records on persons subject to the mandatory reporting provisions of the State

Bureau of Investigation Act. Okla. Stat. tit. 74 § 150.9(A). Vann does not allege

that OSBI or its officers did anything to harm him other than maintaining and

disseminating false information about him, collected pursuant to the Act, to

prison officials. A government agency’s publication of false or defamatory

information is not, by itself, a constitutional violation; rather, the plaintiff must

show that an additional action taken on the basis of the information (sometimes

called “stigma plus”) deprived him of a liberty or property interest secured by the

Constitution.   Paul v. Davis , 424 U.S. 693, 712 (1976).   1




1
      We note at the outset that it is unclear whether Vann can bring a cause of
action for deprivation of a liberty interest based on actions taken by third parties
(prison officials) in response to allegedly defamatory remarks made by defendants
(OSBI and its officers). At least one circuit has interpreted  Siegert v. Gilley , 500
                                                                         (continued...)

                                           -3-
       Vann advances three specific actions that prison officials took as the result

of receiving the false information that affected his interests. First, he lost access

to a lower level security classification. Second, he was denied access to prison

programs. Finally, he was denied parole. We must determine whether any of

these affected interests is constitutionally protected for purposes of the “stigma

plus” analysis.

       State statutes and regulations, including prison regulations, can create

liberty interests subject to due process protections.   Kirby v. Siegelman , 195 F.3d

1285, 1291 (11th Cir. 1999). In      Sandin v. Conner , 515 U.S. 472 (1995), however,

the Supreme Court limited the scope of recognized liberty interests applicable to

prisoners to those representing an “atypical, significant deprivation in which a



1
 (...continued)
U.S. 226 (1991) to foreclose claims that third parties relied on false or defamatory
information to deny plaintiff employment.     See Aversa v. United States , 99 F.3d
1200, 1216 (1st Cir. 1996). A recent case from this circuit also seems to hold that
Siegert bars liberty interest claims for denial of employment based on actions
taken by third parties. Stidham , 265 F.3d at 1154.

       Stidham does not expressly overrule Lancaster v. Independent School
District No. 5 , 149 F.3d 1228, 1235 (10th Cir. 1998), however. Our decision in
Lancaster implies that a liberty interest claim “‘for stigma or other disability that
foreclosed [an employee’s] freedom to take advantage of other employment
opportunities’” survives Siegert . Id. (quoting Board of Regents of State Colleges
v. Roth , 408 U.S. 564, 573 (1972) (emphasis omitted)). This rule may open the
door for other types of “third party claims” like the one Vann asserts here. We
need not resolve whether Stidham or Lancaster correctly states the rule, however,
because Vann’s claims fail for the other reasons noted herein.

                                             -4-
state might conceivably create a liberty interest.”       Id. at 486. Following Sandin ,

this court has held that an inmate has no liberty interest in a particular security

classification in prison.   Lile v. McKune , 224 F.3d 1175, 1183-84 (10th Cir.

2000), cert. granted , 121 S. Ct. 1955 (2001) (No. 00-1187). Under            Sandin , Vann

had no constitutionally-protected interest in his security classification for

purposes of the “stigma plus” analysis.

       Vann fails to identify any specific prison program to which he has been

denied access. Generally speaking, denial of access to prison programs does not

constitute an atypical, significant deprivation sufficient to establish a liberty

interest. Stanley v. Litscher , 213 F.3d 340, 342 (7th Cir. 2000) (treatment

program); Murdock v. Washington , 193 F.3d 510, 513 (7th Cir. 1999) (cooking

class), cert. denied , 529 U.S. 1134 (2000). For this reason, Vann’s complaint

fails to state a claim for denial of a liberty interest in access to prison programs.

       The magistrate judge further concluded that as an Oklahoma state prisoner,

Vann did not have a liberty interest in parole.       See, e.g., Shirley v. Chestnut   , 603

F.2d 805, 807 (10th Cir. 1979). Vann’s claim about parole suffers from an

additional defect. If he were successful in showing that parole was denied

because of false information contained in his criminal history report, this would

necessarily cast doubt on the parole decision itself. Before bringing a damage

claim that casts doubt on the length of a prisoner’s continued incarceration, the


                                             -5-
prisoner must first pursue a successful action for habeas corpus.   Edwards v.

Balisok , 520 U.S. 641 (1997); see also Butterfield v. Bail , 120 F.3d 1023, 1024 &

n.1 (9th Cir. 1997) (barring action for damages where inmate, who had not yet

pursued his claim through a writ of habeas corpus, sought damages because false

information in prison file was used to deny parole).

       We conclude that Vann has failed to allege that the defendants’ allegedly

false statements damaged any of his constitutionally-protected interests. His

damage claims under § 1983 therefore fail.

       2. Claims for injunctive relief

       By definition, the injunctive relief that Vann seeks here cannot be obtained

in a § 1983 proceeding unless he has first shown a constitutional violation.

42 U.S.C. § 1983 (stating that a plaintiff who alleges a “deprivation of any rights,

privileges or immunities secured by the Constitution and laws” of the United

States may seek injunctive relief). Vann has failed to allege a constitutional

violation and is therefore not entitled to injunctive relief pursuant to § 1983.




                                            -6-
      Vann’s complaint was properly dismissed pursuant to Fed. R. Civ. P.

12(b)(6). This proper dismissal did not deprive him of his Seventh Amendment

right to jury trial. The judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED.      2




                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




2
       Vann also includes, in his brief on appeal, the following arguments: (1) that
counsel for the defendants violated Fed. R. Crim. P. 12(f) by failing to address
issues that he raised; and (2) that the magistrate judge improperly cited
unpublished opinions without attaching them to his report and recommendation.
These remaining arguments are frivolous and do not justify reversal.

                                         -7-
