                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               December 19, 2014
                               TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                   Clerk of Court

 LEONARD RACKLEY,

             Plaintiff – Appellant,
 v.                                                   No. 14-6203
                                              (D.C. No. 5:14-CV-00145-HE)
 JOHNNY BLEVINS, DOC Internal                        W. D. Oklahoma
 Affairs; JUSTIN JONES, DOC
 Director; TIM WILKINSON, Warden
 (DCF); MARK KNUTSON, Director’s
 Designee,

             Defendants – Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      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       This order and judgment is not binding precedent, except under the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. 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. 32.1.
      Plaintiff and Appellant Leonard C. Rackley, a state prisoner proceeding pro

se, appeals the dismissal of his 42 U.S.C. § 1983 action alleging a violation of his

constitutional rights based upon the indefinite termination of his visitation

privileges with his wife. For the following reasons, we affirm the dismissal of

this case.

                                 BACKGROUND

      Mr. Rackley is currently incarcerated at the Mack Alford Correctional

Center, but he was imprisoned at the Oklahoma State Reformatory (“OSR”) when

the primary events underlying this case occurred. He has, moreover, been

transferred multiple times over the past several years, as explained more fully

below.

      On February 23, 2008, Mr. Rackley was receiving a visit from his wife,

Chasity Rackley, while he was incarcerated at the OSR. A male and female

officer interrupted the visit, separated the Rackleys, and searched for contraband.

No contraband was found on either person, but a prison official did find a cell

phone in the area of the visitation room where the couple had been sitting. Mr.

Rackley was accused of possession of a cell phone and, at his disciplinary

hearing, he pled guilty to that offense. His punishment included thirty days in

disciplinary segregation, the loss of 365 earned credits and the assignment to

Level 1 for ninety days. The Report of the Disciplinary Hearing Action did not




                                         -2-
include the loss of visiting privileges as a sanction for the possession of the cell

phone. R. Vol. 1 at 123.

      On February 26, 2008, however, Rick Whitten, the Acting Warden at OSR,

wrote an interoffice memorandum stating that Mr. Rackley’s visiting privileges

had been “indefinitely terminated” due to incidents which occurred during the

February 23 visit with Ms. Rackley. Id. at 124. In addition to describing the cell

phone recovered from the visiting room, the memo reported that the Rackleys

“were overheard talking about bringing drugs into the facility on [Ms. Rackley’s]

next visit.” Id. Accordingly, the memo stated that Ms. Rackley had been

removed from Mr. Rackley’s list of approved visitors and visits from Ms. Rackley

would be denied at all Department of Corrections (“DOC”) facilities.

      Shortly after these disciplinary proceedings at the OSR, Mr. Rackley was

transferred to the Oklahoma State Penitentiary (“OSP”). Approximately one year

after that, he was transferred to the Davis Correctional Facility (“DCF”). Mr.

Rackley avers that he was allowed to visit with his wife at the OSP and initially at

the DCF. He claims, however, that on July 28, 2010, while he was incarcerated at

the DCF, he asked that his wife be removed from his list of visitors after the two

had argued. In August 2010, Mr. Rackley asked the DCF officials to put his wife

back on his list of approved visitors. That request was denied because DOC

regulations require a prisoner to wait 120 days (i.e. in Mr. Rackley’s case until

November 28, 2010) before a person who was previously removed from the

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approved visitor list could be reinstated. After 120 days, when Mr. Rackley asked

again to have his wife’s visitation privileges restored, he was informed of the

2008 indefinite termination of visitation imposed by Acting Warden Whitten at

the OSR. Defendant Tim Wilkinson, the Warden of the DCF, informed Mr.

Rackley that the Warden of the OSR was the only person who could restore Ms.

Rackley’s visiting privileges. In a letter dated October 19, 2011, the new Warden

of the OSR, James Rudek, declined to act on Mr. Rackley’s request because Mr.

Rackley was no longer incarcerated at the OSR. Mr. Rudek accordingly claimed

that he lacked jurisdiction to reinstate Ms. Rackley’s visiting privileges.

      Mr. Rackley then sought relief from Defendant Johnny Blevins, the

Administrator of the DOC’s Office of Internal Affairs. In a letter dated April 2,

2012, Defendant Mr. Blevins stated that he could not “re-instate visitation at this

time” because “[a]ccording to your correspondence you are still denying your

actions.” R. Vol. 1 at 34. Defendant Willkinson again denied Mr. Rackley’s

request to staff on January 29, 2013, based on Mr. Blevins’ adverse decision.

      On March 27, 2013, William Rankin, Mr. Rackley’s Unit Manager at the

DCF, and Lesa Grizzle, Mr. Rackley’s case manager, sent a request to Greg

Williams, the Administrator of Private Prisons and Jails, requesting that Ms.

Rackley’s visitation privileges be restored based on Mr. Rackley’s improved

conduct and the fact that visitation at the DCF is by video, so there would be no




                                         -4-
opportunity for Ms. Rackley to deliver contraband to her husband. Mr. Williams

denied the request, relying on the previous denial by Defendant Mr. Blevins.

      Mr. Rackley then resubmitted his grievance to the DCF authorities. He

received an amended response on May 24, 2013, stating that, based on the denial

of relief by Greg Williams (the Administrator of Private Prisons), his request to

have his wife’s name taken off the visitation suspension list was denied.

      Mr. Rackley appealed that denial to Defendant Mark Knutson, the

Director’s Designee for handling inmate appeals. Mr. Knutson affirmed the

denial of relief, based on his finding that Mr. Rackley had not substantiated his

appeal with any authority supporting his claims. Mr. Knutson added that,

although Mr. Rackley had exhausted his administrative remedies, “the grievance

procedure does not satisfy the additional requirements for exhaustion of

administrative remedies required by the Governmental Tort Claims Act, 51 O.S.

§ 151 et seq.” R. Vol. 1 at 143.

      Following Mr. Knutson’s advice (erroneous, as it turned out), Mr. Rackley

filed a claim under the Oklahoma Governmental Tort Claims Act, only to have his

claim denied by the Oklahoma Risk Management Department because the Act

excludes claims premised on omissions by independent contractors for the State

and claims stemming from the operation or maintenance of any prison, jail or

correctional facility. Id. at 145. The Oklahoma Risk Management Department




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added that Mr. Rackley’s claim was also denied for “failure to exhaust

administrative remedies.” Id.

      Mr. Rackley then filed the instant civil rights action, claiming that his due

process and equal protection rights were violated by the Defendant officials’

failure to “correctly adhere to applicable DOC operation’s policy,” by giving him

“conflicting instructions . . . about how a visitor may be reinstated to an inmate’s

visitation list,” and because there is “no legal justification for continued

suspension of visiting privileges . . . .” Civil Rights Compl. at 8, 12, 15; R. Vol.

1 at 12, 16, 19.

      The matter was referred to a magistrate judge, who recommended that Mr.

Rackley’s claims be dismissed for three reasons: First, the magistrate judge

concluded that Mr. Rackley failed to state a claim upon which relief could be

granted, as required by 28 U.S.C. § 1915A. Second, the magistrate judge

determined that Mr. Rackley’s claims for monetary damages against Defendants

Blevins and Jones in their official capacities were barred by Eleventh Amendment

immunity. Third, the magistrate judge determined that Mr. Rackley had not

demonstrated that Defendants Jones, Wilkinson and Knutson had personally

participated in any of the alleged violations.




                                          -6-
      Mr. Rackley ultimately filed objections 1 to the magistrate judge’s Report

and Recommendation, not raising any new arguments but, rather, continuing to

assert that he never actually possessed any illegal narcotics while in prison and

had, therefore, not violated any state laws. He thus argued that the revocation of

his wife’s visitation privileges “infringes on his liberty interests which in turn

denies [him] his due [process rights].” Mr. Rackley also opined that his wife’s

visitation privileges were denied in retaliation for his refusal to cooperate with

internal investigations regarding the death of an inmate who had allegedly raped

another inmate. Mr. Rackley made no objection to the Report and

Recommendation’s conclusions regarding the Eleventh Amendment immunity or

the lack of personal participation. The Report and Recommendation also

recommended that the dismissal count as a “prior occasion” or strike pursuant to

28 U.S.C. § 1915(g).

      The district court subsequently adopted the Report and Recommendation in

all aspects except the conclusion that the dismissal should constitute a “prior

occasion” or strike under § 1915(g). The court determined that a strike/prior

      1
        Mr. Rackley initially failed to file any objections to the Report and
Recommendation, and the district court determined that he had waived his right to
review any of the factual and legal issues addressed therein. The court adopted
the Report and dismissed Mr. Rackley’s complaint without prejudice. Mr.
Rackley then sought leave to file objections, stating that he had not received the
Report until after the deadline for objections. He had apparently been moved to a
different location of incarceration. The district court accordingly vacated the
Report and Recommendation and the related judgment and permitted Mr. Rackley
to file his objections.

                                         -7-
occasion designation was not warranted, stating, “[g]iven the conflicting and

questionable information [Mr. Rackley] was apparently given as to who had the

authority to resolve the visitation issue, the court cannot say that his actions here

were so obviously groundless or unjustified as to warrant that result.” Order at 5;

R. Vol. 1 at 153. The district court also issued an order granting Mr. Rackley

leave to proceed without prepayment of fees and assessing partial payments under

the Prison Litigation Reform Act. Mr. Rackley has made partial payments on the

underlying district court fee.

      This appeal followed, in which Mr. Rackley continues to assert that his due

process and equal protection rights are being violated: “A termination of plaintifs

[sic] visiting privileges is unwarrented [sic] and not allowed by Oklahoma

Department of Corrections own policy. Any other inmate in a similar situation

would only receive a ‘suspension’ of 90 to 180 days of their visiting privileges.”

Plaintiff’s Opening Br. at 2-3 (emphasis omitted).

                                   DISCUSSION

      “Dismissal for failure to state a claim is a legal question we review de

novo.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). “We must accept

all the well-pleaded allegations of the complaint as true and must construe them

in the light most favorable to the plaintiff.” Id. (quoting Alvarado v. KOB-TV,

L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)).




                                          -8-
      As the district court noted, “[t]o make a claim of denial of due process in

violation of the Fourteenth Amendment, a plaintiff must show the deprivation of a

protected liberty or property interest.” Schmitt v. Rice, 421 Fed. Appx. 858, 861

(10th Cir. 2011) (unpublished) (citing Board of Regents v. Roth, 408 U.S. 564,

569 (1972)). 2 “The Supreme Court has limited the scope of liberty interests to

conditions involving an ‘atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.’” Cleveland v. Martin, 2014 WL

5368884, *4 (10th Cir. 2014) (unpublished) (quoting Sandin v. Conner, 515 U.S.

472, 484 (1995)). “Since Sandin, we have consistently stated in unpublished

opinions that inmates lack a liberty interest in visitation.” Id. (citing Marshall v.

Morton, 421 Fed. Appx. 832, 838 (10th Cir. 2011) (unpublished) (holding that

“restrictions on an inmate’s telephone use, property possession, visitation and

recreation privileges are not different in such degree and duration as compared

with the ordinary incidents of prison life to constitute protected liberty interests

under the Due Process Clause”)). In accordance with these unpublished

decisions, we cannot find a liberty interest in Mr. Rackley’s visitation privileges.

      We accordingly agree with the district court that, “because [Mr. Rackley]

cannot show a constitutionally protected liberty interest in his visitation

privileges, his claim that Defendants deprived him of the opportunity to visit his

      2
       While we note that unpublished decisions are not ordinarily cited as
precedent in this circuit, we cite them if they state legal principles with which we
agree as well-established principles of law.

                                         -9-
wife fails to state a viable claim for relief.” Report & Recommendation at 8

(adopted by the district court); R. Vol. 1 at 85. As to Mr. Rackley’s equal

protection claim, he presents wholly conclusory allegations as to different

treatment compared to other inmates, and we therefore cannot evaluate that claim

further.

      We further agree with the district court’s other grounds for dismissing this

complaint: Mr. Rackley failed to challenge the magistrate judge’s

recommendation that sovereign immunity shielded some Defendants from his

claims. 3 And we conclude that Mr. Rackley must show personal participation by

the Defendants, and he has failed to do so, at least as to most of the Defendants.

See Barkes v. First Correctional Med., Inc., 766 F.3d 307, 318-19 (10th Cir.

2014); Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767 (10th

Cir. 2013); Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010); Stewart

v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012).

      We therefore agree with the district court that Mr. Rackley has failed to

state a valid claim and his complaint is accordingly properly dismissed. We also

agree, however, that the circumstances of this case do not constitute a “prior

occasion” under 28 U.S.C. § 1915(g) such as would warrant imposition of a

strike. We remind Mr. Rackley that he remains obligated to continue making

      3
       The district court noted that Mr. Rackley stated, in his Objections to the
Report and Recommendation, his desire to “drop the monetary part of” his suit.
Order at 4; R. Vol. 1 at 152.

                                        -10-
partial payments until the entire appellate fee has been paid. Taking Mr.

Rackley’s complaint at face value, as we must under our standard of review, we

are not unsympathetic to his plight. It has aspects which are reminiscent of a

Kafkaesque “Catch-22.” Nonetheless, as the above analysis makes clear, there is

no constitutional remedy for his unfortunate situation.



                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s order.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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