                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 25 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DAVID DANIEL,

                Plaintiff-Appellant,

    v.                                                   No. 99-6281
                                                     (D.C. No. 97-CV-570)
    TED MERRITT; STEVE SPELLMAN;                         (W.D. Okla.)
    MIKE MAXEY; DAVE BRALEY,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , 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      This order and judgment is not binding precedent, except under the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.
       David Daniel, appearing      pro se , appeals from the district court’s order

granting Mike Maxey’s and Dave Braley’s [hereinafter “defendants”]          1
                                                                                motions to

dismiss and for summary judgment         on his state prisoner civil rights action

brought pursuant to 42 U.S.C. § 1983. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we affirm.

       We review a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state

a claim de novo , accepting the facts pleaded as true.      See Sutton v. Utah State

Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). We will

uphold a Rule 12(b)(6) dismissal only if it appears “beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.”   Id. (quotation omitted).   We also review the grant of summary

judgment de novo ,

       applying the same legal standard used by the district court pursuant
       to Fed.R.Civ.P. 56(c). Summary judgment is appropriate if the
       pleadings, depositions, answers to interrogatories, and admissions on
       file, together with the affidavits, if any, show that there is no genuine
       issue as to any material fact and that the moving party is entitled to
       judgment as a matter of law. When applying this standard, we
       examine the factual record and reasonable inferences therefrom in
       the light most favorable to the party opposing summary judgment. If
       there is no genuine issue of material fact in dispute, then we next
       determine if the substantive law was correctly applied by the district
       court.



1
       Mr. Daniel’s suit against Ted Merritt and Steve Spellman was dismissed by
stipulation after settlement.

                                             -2-
Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted).



                                       Background

       The relevant facts are not disputed. Mr. Daniel was serving a state

sentence for escape from a penal institution in 1994 when he was released to live

and work in the community pursuant to the Oklahoma Pre-Parole Conditional

Supervision Program (PPCS). In February 1995, he was charged with two counts

of possession of a controlled dangerous substance and possession of drug

paraphernalia, which ultimately resulted in his reclassification.      See R. Vol. I

Doc. 36, at 2-3. In March 1995, however, he was released on bail pending

resolution of the drug charges and allowed to return to PPCS status.        See id. at 3.

On April 11, 1995, he was formally removed from the PPCS program, arrested by

defendants Ted Merritt and Steve Spellman, and returned to prison. Mr. Merritt

and Mr. Spellman alleged that he attempted to escape by unbuckling his seatbelt

during this transport to jail, and a new criminal charge for attempted escape was

filed. See id. at 4. This charge was later dismissed by the state district attorney.

Mr. Daniel was convicted of the drug charges that lead to his removal from PPCS.

He subsequently filed this suit.




                                             -3-
                                     Discussion

      In his complaint, Mr. Daniel alleges that defendants violated his

constitutional rights when, as administrators for the Oklahoma Department of

Corrections (DOC), they (1) did not provide him a hearing before removing him

from the PPCS; (2) knew of and approved his false arrest, false imprisonment,

and malicious prosecution by Mr. Merritt and Mr. Spellman; and (3) conspired

with Mr. Merritt and Mr. Spellman to use DOC disciplinary procedures and false

charges to harass and intimidate him.

      1. Qualified immunity     . The district court granted defendants’ motion to

dismiss Mr. Daniel’s PPCS claim on the basis of qualified immunity because

“[t]he law governing federal due process rights of PPCS inmates was not clearly

established in this sense until August 30, 1995, when the Tenth Circuit decided

Harper v. Young , 64 F.3d 563 (10th Cir. 1995),   aff’d sub nom., Young v. Harper     ,

117 S. Ct. 1148 (1997).” R. Vol I. Doc. 42, at 4. On appeal, Mr. Daniel argues

that the law regarding removal of inmates from PPCS was clearly established in

Morrissey v. Brewer , 408 U.S. 471 (1972), and    Gagnon v. Scarpelli , 411 U.S. 778

(1973). We disagree. In   Morrissey and Gagnon , the Court held that individuals

on parole or probation are entitled to due process hearings under the Fourteenth

Amendment when either parole or probation are revoked.        See Morrissey ,

408 U.S. at 483; Gagnon , 411 U.S. at 782. PPCS is “     a penal status similar to,


                                          -4-
although more restrictive than, parole that allows convicts to live and work in

society.” Harper , 64 F.3d at 564. At the time of defendants’ alleged acts, the

Oklahoma Court of Criminal Appeals in        Barnett v. Moon , 852 P.2d 161

(Okla. Crim. App. 1993), and       Harper v. Young , 852 P.2d 164 (Okla. Crim. App.

1993) [hereinafter designated as     Harper I ], had held that removal from PPCS

impinged only upon an inmate’s interest in his “degree of confinement,” which is

an interest to which the procedural protections set out in      Morrissey did not

attach. See Harper I , 852 P.2d at 165. In our       Harper decision, we disagreed

with that conclusion and, for the first time, applied the due process requirements

outlined in Morrissey and Gagnon to participation in PPCS.          See 64 F.3d at 566.

Therefore, at the time of Mr. Daniel’s removal from PPCS, such removal without

a hearing was not a clearly established constitutional deprivation. We affirm

summary judgment in favor of defendants on this claim.

       2. False arrest and imprisonment           . Mr. Daniel’s claim for false arrest

and imprisonment is related solely to Mr. Merritt’s and Mr. Spellman’s

allegations that he tried to escape during transport. The district court correctly

dismissed the causes of action for false arrest and imprisonment against

defendants because Mr. Daniel “neither alleges nor shows any personal

involvement in this matter by defendants.” R. Vol. I Doc 42, at 5.




                                            -5-
       3. Malicious prosecution     . The district attorney dismissed the criminal

prosecution for attempted escape on grounds that it would “‘best meet the ends of

justice’ because ‘prosecuting witnesses [were] no longer employed by D.O.C.’”

Id. at 6. A § 1983 plaintiff claiming malicious prosecution must make an initial

showing that the criminal charge related to the malicious prosecution case was

terminated in his favor.   See Neely v. First State Bank   , 975 P.2d 435, 437

(Okla. 1998). The district court relied on a Second Circuit case holding that

dismissal of a criminal charge “in the interests of justice” “‘cannot provide the

favorable termination required as the basis for a claim of malicious prosecution’”

under § 1983. R. Vol. I Doc. 42, at 6 (quoting     Singer v. Fulton County Sheriff   ,

63 F.3d 110, 118 (2d Cir. 1995)).

       On appeal, Mr. Daniel argues that the common law of torts determines the

contours of a malicious prosecution claim under § 1983, citing      Taylor v.

Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996). He argues that criminal

proceedings are also terminated in favor of an accused by “the formal

abandonment of the proceedings by the public prosecutor,” Restatement (Second)

of Torts § 659(c), and that he therefore established a termination in his favor

sufficient to satisfy a prima facie showing by demonstrating that the district

attorney abandoned the proceedings against him for a reason consistent with his

innocence. The State inexplicably failed to brief the issue of favorable


                                           -6-
termination other than to postulate that the district court correctly followed

Singer .

       Even if we were to assume that the proceedings were terminated in

Mr. Daniel’s favor, however,         we conclude that Mr. Daniel cannot state a § 1983

cause of action for malicious prosecution against defendants because he can state

no facts showing that either defendant was personally involved in his prosecution

for attempted escape     2
                             . See Anthony v. Baker , 955 F.2d 1395, 1399 & n.2

(10th Cir. 1992) (stating that action for malicious prosecution “attempts to hold

the complaining witness         liable for his role in initiating a baseless prosecution”

and that “[t]he term ‘complaining witness’ describes the person (or persons) who

actively instigated or encouraged the prosecution of the plaintiff . . . [,thus p]roof

of the defendant’s role in instituting the criminal prosecution of the plaintiff is an

essential element of a malicious prosecution claim”) (emphasis added) (quotation

and citation omitted).        Although Mr. Daniel alleges on appeal that defendants

“knew the escape charge was false yet they did nothing to prevent it,”          see

Appellant’s Br. at 21, he concedes that defendant Maxey actually “threw out the

[administrative] misconduct [charge] alleging that Mr. Daniel had tried to attempt



2
       Although the district court made no alternative findings or holdings on this
issue, the magistrate recommended dismissal on the additional ground that
defendants were not personally involved in the acts leading to the malicious
prosecution claim. See R. Vol. I Doc. 36, at 16.

                                               -7-
to escape . . . because [Mr. Maxey] did not feel that unbuckling a seat belt

constituted a misconduct for an escape attempt.”       See R. Vol. I, Doc. 22,

Attach. F-1, 2 (Affidav. of Mike Maxey); Appellant’s Br. at 21. Mr. Daniel also

does not contradict Mr. Maxey’s sworn statement that “Officer Merritt and

Officer Spellman took it upon themselves to have an ‘Attempted Escape’ charge

filed in Canadian County.” R. Vol. I, Doc. 22, Attach. F-2.         He further alleges no

basis for Mr. Maxey’s authority as an assistant district supervisor of

probation/parole to interfere in a probation officer’s decision to file charges in

this situation.

       Mr. Daniel alleges absolutely no facts implicating defendant Braley       3
                                                                                     in the

decision to charge Mr. Daniel with attempted escape. We therefore affirm the

grant of summary judgment in favor of defendants on the malicious prosecution

charge. See Medina v. City & County of Denver         , 960 F.2d 1493, 1495 n.1

(10th Cir. 1992) ( “We are free to affirm a district court decision on any grounds

for which there is a record sufficient to permit conclusions of law, even grounds

not relied upon by the district court.”) (quotation omitted)    .

       4. Conspiracy . The district court held that the conspiracy claim against

defendants should be dismissed because Mr. Daniel failed to state facts showing



3
      Mr. Braley was a records officer at the probation office at the time.
See R. Vol. I, Doc. 22 at Attach. I-1.

                                             -8-
defendants’ involvement in the alleged conspiracy. Mr. Daniel’s baseless and

conclusory arguments on appeal do not assist his claim. The fact that defendants

agreed that Mr. Daniel should be returned to prison from the PPCS program after

he was charged with illegal possession of drugs does not aver an unlawful

agreement. Contrary to Mr. Daniel’s claims, there is no evidence that either

defendant issued false disciplinary reports, and neither defendant engaged in

filing the allegedly false attempted escape charge. We affirm the grant of

summary judgment on the conspiracy claim.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED .



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




                                        -9-
