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



    JOH N H AD LEY FISHER; KEN NETH
    LYNN FUNKHOU SER;

              Plaintiffs-Appellants,                     No. 06-7064
                                                   (D.C. No. CIV-05-266-S)
     v.                                                  (E.D. Okla.)

    O K LA H OMA D EPA RTM EN T OF
    CO RRECTION S UNKN OW N STATE
    A CTO R A N D /O R A CTO RS; M IKE
    M ULLIN, W arden; KEN YO TT;
    B OBBY BO O N E; R ON WA R D;

              Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.


          Plaintiffs John Hadley Fisher and Kenneth Lynn Funkhouser, Oklahoma

state inmates proceeding pro se here as in the district court, appeal the district

court’s order granting summary judgment to defendants on their claims arising



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under 42 U.S.C. § 1983. W e exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

                                      Background

      Each plaintiff is serving a life sentence for murder. Both are incarcerated

at the Oklahoma State Prison (OSP), and were housed at H Unit during the

relevant time. M r. Funkhouser wrote a letter to an OSP staff case manager, and

M r. Fisher w rote at least two letters to her. Plaintiffs assert that defendants

circulated the letters among the inmates in their housing unit, resulting in both

plaintiffs being labeled as informants or snitches.

      Plaintiffs filed the underlying law suit alleging that defendants violated their

constitutional rights by labeling them as snitches with the intent that they be

injured or killed. Plaintiffs requested appointment of counsel, discovery, and a

preliminary injunction. At the district court’s direction, defendants filed a

M artinez report. 1 Plaintiffs later sought to supplement their pleadings to include

allegations that defendants retaliated against them for filing suit. The district

court granted defendants’ motion for summary judgment and denied all other

pending motions. Plaintiffs appeal, arguing (1) the district court’s entry of

summary judgment was improper because discovery had not been allowed and



1
       M artinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam) (approving
order requiring prison officials to investigate facts surrounding inmate’s civil
rights action to construct an administrative record from which court may
determine jurisdiction and assess frivolity).

                                           -2-
there existed disputed facts, (2) the district court abused its discretion in denying

their motions for appointment of counsel, for an injunction, and to supplement

their pleadings, (3) the district court erred in denying their claims under the

Eighth Amendment, and (4) the district court erred in denying M r. Funkhouser’s

claims under the Fifth, Eighth, and Fourteenth Amendments and the Equal

Protection Clause.

                                 Standards of Review

      “W e review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed. R. Civ. P. 56(c).” Steffey v.

Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (quotation omitted). For

dispositive issues on which the plaintiff will bear the burden of proof at trial, he

must “go beyond the pleadings and designate specific facts so as to make a

show ing sufficient to establish the existence of an element essential to [his] case

in order to survive summary judgment.” Sealock v. Colorado, 218 F.3d 1205,

1209 (10th Cir. 2000) (quotation omitted). “[E]vidence, including testimony,

must be based on more than mere speculation, conjecture, or surmise.

Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.) (citation and

quotations omitted), cert. denied, 127 S. Ct. 131 (2006).

      W e review a district court’s discovery rulings, its order denying leave to

supplement the pleadings, and its order denying appointment of counsel for an

                                          -3-
abuse of discretion. Procter & Gamble Co. v. Haugen, 427 F.3d 727, 742-43

(10th Cir. 2005) (discovery); Walker v. United Parcel Serv., Inc., 240 F.3d 1268,

1278 (10th Cir. 2001) (leave to supplement); Steffey, 461 F.3d at 1223

(appointment of counsel). An order denying a preliminary injunction will not be

disturbed absent an abuse of discretion, an error of law, or clearly erroneous

factual findings. Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001).

Because plaintiffs are representing themselves, we liberally construe their

pleadings; however, w e do not act as their advocate. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991).

                      Characterizing Plaintiffs as Inform ants

      “A prison official’s deliberate indifference to a substantial risk of serious

harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan,

511 U.S. 825, 828 (1994) (quotation omitted). “[L]abeling an inmate a snitch

satisfies the Farmer standard, and constitutes deliberate indifference to the safety

of that inmate.” Benefield v. M cDowall, 241 F.3d 1267, 1271 (10th Cir. 2001)

(citing Northington v. M arin, 102 F.3d 1564, 1567 (10th Cir. 1996)). But a

prisoner must do more than allege generally that various prison officials violated

his rights. “Rather, personal participation is an essential allegation in a § 1983

claim.” M itchell v. M aynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (quotation

omitted). In addition, “government officials are not vicariously liable for the

misconduct of their subordinates. There is no concept of strict supervisor liability

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under § 1983.” Serna v. Colorado D ep’t of Corr., 455 F.3d 1146, 1151 (10th Cir.

2006) (quotation omitted).

       In their amended complaint, plaintiffs alleged that their letters w ere

circulated by certain unknown prison employees and that the named defendants,

with the exception of defendant Yott, were “culpable for [their] employees[’]

actions.” R. Vol. I, Doc. 22 at 13. Defendants are not vicariously liable.

M oreover, plaintiffs proffered no allegation or evidence that any of the named

defendants, except M r. Yott, personally participated in activities that violated

their constitutional rights. 2

       Plaintiffs submitted sw orn statements from nine fellow residents of H Unit

purporting to substantiate their claims. Id. Doc. 24, Affidavits 11-17, 19 & 20.

In the affidavits, the inmates stated that they had heard about plaintiffs’ letters or

that it w as common knowledge that plaintiffs had written to the case manager.

Some of the affiants had read the letters, which they had received from other

inmates or unidentified sources. Although several affiants stated that the letters

were disseminated through the prison’s internal mail system, this was merely

speculation; none of the affiants had personal knowledge of how the letters w ere



2
       Although courts generally permit a plaintiff to use unnamed defendants, the
plaintiff must “provide[] an adequate description of some kind which is sufficient
to identify the person involved so process eventually can be served.” Roper v.
Grayson, 81 F.3d 124, 126 (10th Cir. 1996). Here, plaintiffs’ amended complaint
did not describe the person or persons they claim injured them. Accordingly, the
district court did not err in entering summary judgment.

                                          -5-
revealed. W e determine that the affidavits are insufficient to withstand summary

judgment because they are based on either hearsay or speculation or both, and are

therefore inadmissible. See Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996)

(holding content and substance of evidence opposing summary judgment must be

admissible, and “[i]nadmissible hearsay evidence in an affidavit will not defeat

summary judgment”). Accordingly, plaintiffs’ claims that defendants (except

M r. Yott) violated their Eighth Amendment rights for labeling them snitches w ere

properly denied.

      As to M r. Yott, plaintiffs alleged that he read their letters to two dangerous

inmates. R. Vol. I, Doc. 22 at 5-6, 8-9. M r. Yott stated in his affidavit that he

investigated the claims made in plaintiffs’ letters and, in doing so, he discussed

the letters w ith the two inmates because they were named in them. R. Vol. II,

Doc. 28, Attach. 24 at 2-3. Plaintiffs’ allegations that M r. Yott read their letters

to the other inmates intending that those inmates w ould injure plaintiffs are

conclusory. As such, they “are insufficient to put a material fact in dispute.”

Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992). Plaintiffs have

submitted no evidence that M r. Yott acted with the requisite “obdurate and

wanton disregard for [plaintiffs’] safety,” Northington v. Jackson, 973 F.2d 1518,

1525 (10th Cir. 1992). Therefore, the district court properly granted summary in

favor of M r. Y ott on this claim.




                                          -6-
                        Remaining Claims of Both Plaintiffs

      Plaintiffs maintain that the district court erred in entering summary

judgment before they had conducted discovery. Their primary complaint

concerns their request for DNA testing on the envelopes containing their letters

that were sent to other inmates, which they assert would have revealed the

identity of the sender or senders. As discussed above, plaintiffs’ amended

com plaint alleged that almost all of the actionable conduct was done by unknow n

persons. W e recognize that plaintiffs had hoped discovery would help them

identify one or more prison employees they could sue, but under these

circumstances where the letters could have been disseminated by any number of

people, including inmates, we find no abuse of discretion in the district court’s

decision foreclosing plaintiffs’ attempt to “use discovery as a fishing expedition,”

Anthony v. United States, 667 F.2d 870, 880 (10th Cir. 1981).

      Plaintiffs next argue that the district court misconstrued their claims for

damages, incorrectly holding that they requested, but were not entitled to,

damages for psychological injury. The district court held correctly that plaintiffs

may not recover for emotional injury absent physical injury. See 42 U.S.C.

§ 1997e(e). Although § 1997e(e) does not bar recovery of nominal or punitive

damages, Searles v. Van Bebber, 251 F.3d 869, 879, 880-81 (10th Cir. 2001),

plaintiffs are not entitled to any damage award, given the district court’s entry of

summary judgment in defendants’ favor and our affirmance.

                                          -7-
      Similarly, we find no abuse of discretion in the district court’s order

denying appointment of counsel. Having reviewed the record and the briefs, we

conclude that plaintiffs’ case is not one of “those extreme cases where the lack of

counsel result[ed] in fundamental unfairness,” Steffey, 461 F.3d at 1223

(quotation omitted).

      Plaintiffs also assert that the district court erred in denying their request for

a preliminary injunction. They sought to enjoin the defendants from transferring

them to another prison, seizing their legal materials, interfering with their ability

to confer w ith each other, and generally retaliating against them for filing this

action. R. Doc. 39, Attach. W e conclude that plaintiffs have not made any of the

required showings -- that they are likely to succeed on a retaliation claim, that

they will suffer irreparable injury if an injunction is not issued, that the

threatened injury to them outweighs any injury to defendants, or that an

injunction would not be averse to the public interest. See Kikum ura, 242 F.3d at

955. Therefore, we affirm the district court’s denial of a preliminary injunction.

      Plaintiffs further challenge the district court’s decision not to allow them to

supplem ent their pleadings. It appears that the requested supplement sought to

add a new claim that defendants retaliated against plaintiffs for filing suit. Under

Fed. R. Civ. P. 15(d), “trial courts [have] broad discretion to permit a party to

serve a supplemental pleading setting forth post-complaint transactions,

occurrences or events.” Walker, 240 F.3d at 1278. But at the time the motion to

                                           -8-
supplement was filed, the case was ready for disposition on summary judgment on

the original claims. Under these circumstances, we conclude that the district

court did not abuse its discretion in denying leave to supplement the pleadings.

See id.

                     Plaintiff Funkhouser’s Remaining Claims

      M r. Funkhouser asserts that defendants’ consideration of his conduct during

a riot at the prison in 1985 was improper because he was acquitted of the criminal

charges brought against him. He maintains that defendants violated his

constitutional rights by placing him in H Unit and keeping him there based on his

participation in the riot. According to M r. Funkhouser, H Unit was also known as

“Redline,” and was used unofficially to punish and coerce him and other prisoners

by keeping them in unconstitutionally harsh conditions of confinement.

      M r. Funkhouser contends that his transfer to H Unit based on his

participation in the riot was a double-jeopardy violation because he was acquitted

of the criminal charges. Prison classification does not implicate that Fifth

Amendment right. Cf. Wirsching v. Colorado, 360 F.3d 1191, 1205 (10th Cir.

2004) (holding double jeopardy not implicated in prison disciplinary sanctions).

      Next, M r. Funkhouser argues that his transfer to H Unit was punitive, and

therefore he was entitled to Fourteenth-Amendment due-process procedures

before and during his placement there. He alleges that the conditions in H Unit

were similar to those in the administrative segregation unit, whereby prisoners

                                         -9-
were denied contact visits, a yard permitting contact with other inmates, jobs, and

programs. He also claims that the conditions in H Unit imposed atypical and

significant hardship in comparison to other cell blocks at OSP.

      In his affidavit, the warden stated that (1) OSP provided housing primarily

for maximum-security offenders, (2) all inmates were afforded very limited

outdoor exercise, (3) H Unit, Northwest 1, where M r. Funkhouser was housed,

was a general-population unit, (4) non-contact visiting was imposed on all

inmates in all cell blocks of H Unit, as well as to inmates classified as level one

and those in Units D and E, and (5) w ork assignments were available on a very

limited basis and were assigned based on conduct, attitude and an ability to

cooperate. R. Vol. II, D oc. 28, Attach. 22 at 1-3.

      The Supreme Court has held

      that States may under certain circumstances create liberty interests
      which are protected by the Due Process Clause. But these interests
      will be generally limited to freedom from restraint which, while not
      exceeding the sentence in such an unexpected manner as to give rise
      to protection by the D ue Process Clause of its own force, nonetheless
      imposes atypical and significant hardship on the inmate in relation to
      the ordinary incidents of prison life.

Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (citations omitted). Defendants

do not dispute M r. Funkhouser’s claims about the conditions in H Unit. In fact,

they confirm those claims. M r. Funkhouser did not produce facts showing that

H Unit’s conditions were harsher, or even different, than those in other

comparable units in the maximum-security prison. Therefore, he was not entitled

                                         -10-
to due process before or during his placement at H Unit.

      Finally, M r. Funkhouser asserts that his equal protection rights were

violated w hen he w as transferred to and retained at H Unit, while other prisoners

with w orse institutional records were not. He argues on appeal that defendants’

responses to his discovery requests would have established that other prisoners

were treated more favorably than he.

      “Equal protection is essentially a direction that all persons similarly

situated should be treated alike.” Fogle v. Pierson, 435 F.3d 1252, 1260

(10th Cir.) (quotation omitted), cert. denied, 127 S. Ct. 675 (2006).

M r. Funkhouser does not claim that he was treated differently than other inmates

because he belongs to a suspect class; therefore, he must show that he was

similarly situated to the other inmates “and that the difference in treatment was

not ‘reasonably related to legitimate penological interests.’” Id. at 1261 (quoting

Turner v. Safley, 482 U.S. 78, 89 (1987)).

      The placement of prisoners within OSP is in part discretionary. See Okla.

Stat. tit. 57, § 138(D); see also Wilson v. Jones, 430 F.3d 1113, 1116 (10th Cir.

2005) (describing Oklahoma’s statutory classification system as having both

objective and subjective/discretionary components), cert. denied, 127 S. Ct. 158

(2006). The numerous subjective factors contributing to the classification of

prisoners demonstrates the implausibility of M r. Funkhouser’s argument that

“there are no relevant differences between [him] and other inmates that

                                        -11-
reasonably might account for their different treatment.” Fogle, 435 F.3d at 1261

(quotation omitted). For the same reason, the discovery M r. Funkhouser would

have requested about other prisoners’ institutional records would not have proven

his equal protection claim. Consequently, the district court properly rejected the

equal protection claim without allowing discovery.

                                    Conclusion

      Plaintiffs’ pending motions are DENIED. The judgment of the district

court is A FFIR ME D.



                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge




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