                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 20, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 MYOUN L. SAWYER,

               Plaintiff-Appellant,                      No. 08-3067
          v.                                             (D. of Kan.)
 TAMIRA JEFFERIES, Classification                (D.C. No. 08-CV-3016-SAC)
 Supervisor, Wyandotte County Jail;
 VICTOR CHAVEZ, Detective and/or
 Investigator, Wyandotte County Jail;
 RANDALL HENDERSON, Jail
 Administrator, Wyandotte County Jail;
 and LEROY GREEN, JR., Sheriff,
 Wyandotte County Sheriff’s
 Department,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Myoun L. Sawyer appeals the district court’s sua sponte dismissal of his



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
pro se complaint. 1 In the complaint, Sawyer alleged Defendants—jail and the

sheriff’s office employees in Wyandotte County, Kansas—violated several of his

constitutional rights during Sawyer’s confinement in a county jail. Because

Sawyer proceeded in forma pauperis (IFP) and was subject to 28 U.S.C.

§ 1915(e)(2)(B)(ii) requirements, the district court sua sponte dismissed the

complaint for failure to state a claim.

      We agree with the district court’s reasoning and therefore DISMISS this

appeal.

                                   I. Background

      Sawyer’s 42 U.S.C. § 1983 complaint alleges violations of several of his

constitutional rights, all stemming from the following incidents.

      In August and October 2006, Sawyer, while incarcerated in a county jail on

felony charges, received citations for indecent exposure, a minor violation under

jail rules. On both occasions, however, Classification Supervisor Tamira Jefferies

imposed a 30-day segregation, a level of punishment jail rules reserve for major

violations. Jefferies explained she upgraded the sanctions because of prior

instances of similar violations by Sawyer. For these two incidents, plus six

others, Sawyer was charged in November 2006 with eight misdemeanor counts of

lewd and lascivious behavior, Kan. Stat. Ann. § 21-3508(a)(2).

      1
        Because Sawyer is proceeding pro se, we review his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).

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      As of February 2007, Sawyer was no longer in custody on the earlier felony

charges. Only misdemeanor charges remained. Despite this, Jefferies did not

reclassify Sawyer’s status and allowed him to remain in maximum custody.

While in maximum custody, Jefferies was attacked by another inmate and

suffered a broken jaw.

      In September 2007, Sawyer complained to the sheriff’s office about jail

administration. In response, Detective Victor Chavez interviewed Sawyer, took a

formal statement, and allowed him to fill out a complaint. Chavez then left the

papers with Sawyer, promising to pick them up the next day as well as to bring

Sawyer more forms for additional complaints. When Chavez failed to return,

Sawyer filed grievances with Jefferies, Jail Administrator Randall Henderson, and

Sheriff Leroy Green, Jr.

      Lastly, in October 2007, Sawyer apparently threw a meal tray at a jail

deputy. As a result, he was sanctioned with a loss of hot meal privileges. For

approximately two weeks, Sawyer received only bagged cold meals.

                                  II. Discussion

      Sawyer proceeded IFP below and is thus subject to the requirements of 28

U.S.C. § 1915. Under § 1915(e)(2)(B)(ii), district courts must dismiss an IFP

complaint if it “fails to state a claim on which relief may be granted.”

      We review de novo the district court’s decision to dismiss an IFP complaint

under § 1915(e)(2)(B)(ii). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).

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“Dismissal of a pro se complaint for failure to state a claim is proper only where

it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

would be futile to give him an opportunity to amend.” Id. (quotation omitted).

“In determining whether a dismissal is proper, we must accept the allegations of

the complaint as true and construe those allegations, and any reasonable

inferences that might be drawn from them, in the light most favorable to the

plaintiff.” Id. (quotation omitted).

      Construing Sawyer’s complaint liberally, as we must, it can be read as

alleging the following claims: double jeopardy, discrimination, due process

violation, deliberate indifference, denial of access to the courts, and cruel and

unusual punishment. We discuss each claim in turn. In the end, we agree

Sawyer’s complaint must be dismissed for failure to state a claim.

      A. Double Jeopardy

      Sawyer’s double jeopardy claim rests on his twice receiving sanctions for

the August and October 2006 incidents of indecent exposure—first via

administrative sanctions imposed by jail authorities and then again via criminal

misdemeanor charges by a district attorney. This claim fails. “Because the

Double Jeopardy clause applies [only] to proceedings that are essentially criminal

in nature, . . . it is well established that prison disciplinary sanctions . . . do not

implicate double jeopardy protections.” Fogle v. Pierson, 435 F.3d 1252, 1262

(10th Cir. 2006) (citing Breed v. Jones, 421 U.S. 519, 528 (1975)) (quotations

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omitted). Sawyer cannot count his administrative sanctions for the purpose of

double jeopardy analysis.

      B. Discrimination

      Sawyer next claims he was a victim of selective prosecution and invidious

discrimination when he was punished with a 30-day segregation for minor

violations, allegedly contrary to the jail rules. His claim amounts to an argument

that he was denied equal protection by being treated differently than other

inmates. To succeed on this claim, Sawyer has to show (1) he was being treated

differently from similarly situated inmates, and (2) 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)).

      Sawyer cannot succeed on this claim for the simple reason that he, unlike

the general jail population, was “deemed a chronic discipline problem.” R., Doc.

1, Ex. 12. He appeared to repeatedly expose himself in the presence of female

guards. Because prison administrators enjoy broad discretion in determining

which inmates warrant administrative segregation—and for how long—we cannot

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

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

(quotation omitted).

      Sawyer’s equal protection claim thus fails.




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      C. Due Process Violation

      Apart from his equal protection challenge, Sawyer appears to argue he was

deprived of liberty without due process when, after his felony charges were

resolved and only misdemeanor charges remained, Jefferies failed to reclassify

him and remove him from maximum custody. “Changing an inmate’s prison

classification,” however, “ordinarily does not deprive him of liberty, because he

is not entitled to a particular degree of liberty in prison.” Templeman v. Gunter,

16 F.3d 367, 369 (10th Cir. 1994) (citing Meachum v. Fano, 427 U.S. 215, 225

(1976)). Thus, without more, Sawyer does not have a due process liberty interest

in a particular prison classification. That an inmate like Sawyer, who had chronic

discipline problems, continued to reside in maximum custody when only

misdemeanor (not felony) charges remained does not state a due process claim.

      D. Deliberate Indifference

      Sawyer alleges that an unprovoked attack against him by another inmate in

the maximum custody unit amounts to a breach of jail administrators’ duty to

protect him. “Prison officials have a duty to protect prisoners from violence at

the hands of other prisoners,” and a “prison official’s deliberate indifference to a

substantial risk of serious harm to an inmate violates the Eighth Amendment.”

Benefield v. McDowall, 241 F.3d 1267, 1270–71 (10th Cir. 2001) (brackets and

ellipsis omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 828, 833 (1994)).

Inmates state a cognizable failure to protect claim only when they show (1) they

                                         -6-
were incarcerated “under conditions posing a substantial risk of serious harm, the

objective component,” and (2) “the prison official was deliberately indifferent to

[inmates’] safety, the subjective component.” Id. at 1271 (quotation omitted).

      This claim fails because Sawyer does not allege jail administrators knew of

and disregarded an excessive risk to his health or safety. See Farmer, 511 U.S. at

837 (holding “a prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or safety”). At

most, Sawyer’s allegations might support a claim of negligence by jail

administration, but negligence is not enough for constitutional liability. See

Hovater v. Robinson, 1 F.3d 1063, 1066 (10th Cir. 1993) (explaining that

deliberate indifference is a higher degree of fault than even gross negligence, let

alone ordinary negligence). Sawyer alleges nothing more than an unprovoked

attack by another inmate. Nothing in the record suggests jail administrators knew

of and disregarded the risk that such an attack might occur. They thus were not

deliberately indifferent to Sawyer’s safety, at least not in the constitutional sense.

      E. Denial of Access to the Courts

      Sawyer alleges his constitutional rights were violated when Chavez failed

to return to pick up Sawyer’s complaint against jail administration. We agree

with the district court’s interpretation of this allegation as an attempt to state a

violation of Sawyer’s right to access the courts. But while such a right certainly

                                          -7-
exists under the First and Fourteenth Amendments, Penrod v. Zavaras, 94 F.3d

1399, 1403 (10th Cir. 1996) (citing Bounds v. Smith, 430 U.S. 817 (1977)), we do

not see how it was violated in this case. Sawyer was able, without any apparent

impediment, to file the instant § 1983 complaint, which contains all the

allegations (and more) he wanted to bring to Chavez’s attention. We are thus

unable to see what consequences Chavez’s failure to return had on Sawyer’s right

of access to the courts. Accordingly, this claim fails.

      F. Cruel and Unusual Punishment

      Finally, Sawyer challenges deprivation of hot meals as a sanction for

throwing a meal tray at a deputy. However, “while prisoners are guaranteed a

nutritionally adequate diet under the Eighth Amendment, . . . there is no

constitutional right to hot meals.” Laufgas v. Speziale, 263 F. App’x 192, 198 (3d

Cir. 2008) (citing Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980)); see also

Hoitt v. Vitek, 497 F.2d 598, 601 (1st Cir. 1974) (explaining the constitutional

requirement of adequate food in prisons does not include a right to hot meals).

Because Sawyer does not allege the cold meals were nutritionally inadequate, this

claim also must fail.




                                         -8-
                        III. Conclusion

For the foregoing reasons, we DISMISS Sawyer’s appeal.

                                     Entered for the Court

                                     Timothy M. Tymkovich
                                     Circuit Judge




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