                                                       FILED
                                           United States Court of Appeals
                UNITED STATES COURT OF APPEALS     Tenth Circuit

                      FOR THE TENTH CIRCUIT                    July 13, 2015

                                                           Elisabeth A. Shumaker
                                                               Clerk of Court
JAMES KEVIN RUPPERT,

           Plaintiff - Appellant,

v.                                          Nos. 14-2030 & 14-2123
                                         (D.C. Nos. 1:13-CV-00054-JAP-
NEW MEXICO DEPARTMENT OF                             ACT &
CORRECTIONS; GUADALUPE                     1:13-CV-00054-JAP-WPL)
COUNTY CORRECTIONAL                                 (D. N.M.)
FACILITY; GEO GROUP, INC.;
GREGG MARCANTEL, Secretary of
Corrections; JERRY ROARK,
Deputy Secretary; RALPH
CASAUS, Grievance,
Administrative Judge; WARDEN
ERASMO BRAVO; DEPUTY
WARDEN ULIBARRI; CAPTAIN
PHIL ARAGON; LIEUTENANT
JUSTIN RODGERS, Security
Threat, Intelligence Unit;
LIEUTENANT J. VIGIL,
Disciplinary/Grievance Officer;
SARGEANT RIVERA, Disciplinary;
SARGEANT TORELLA;
MAILROOM SUPERVISOR C.
CHAVEZ; COMPLIANCE
MONITOR G. CHAVEZ,

           Defendants - Appellees.


                        ORDER AND JUDGMENT*
*
      The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
                                                                 (continued)
Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.


      Mr. Kevin James Ruppert is a state prisoner convicted of murder and

sentenced to life imprisonment. He sued under 42 U.S.C. § 1983, seeking

damages and equitable relief based on the duration of his confinement and

the conditions in his prison. On screening, the district court dismissed

Mr. Ruppert’s claims relating to extension of confinement to increase

profit, denial of the opportunity to participate in rehabilitative programs,

and denial of legal materials.

      Though this order did not terminate the action, Mr. Ruppert filed an

interlocutory appeal (No. 14-2030). While that appeal was pending, the

district court granted summary judgment to the defendants on Mr.

Ruppert’s claim of retaliation. Mr. Ruppert again appealed (No. 14-2123). 1

      We affirm the district court’s two orders.




     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
1
      With entry of this judgment, the interlocutory appeal ripened,
allowing us to review the dismissal order. See Elm Ridge Exploration Co.
v. Engle, 721 F.3d 1199, 1209 n.5 (10th Cir. 2013). Review of the
subsequent summary judgment order required its own notice of appeal,
which Mr. Ruppert filed to initiate the second appeal (No. 14-2123). See
id.


                                     - 2 -
I.    Mr. Ruppert’s Claims and the Disposition

      The complaint contains five claims:

      1.    The New Mexico Department of Corrections and the company
            operating the correctional facility used disciplinary actions as a
            pretext to increase profit by keeping individuals imprisoned
            longer than they should have been.

      2.    Prison officials deprived Mr. Ruppert of due process by
            excluding him from rehabilitative programs.

      3.    Authorities did not allow Mr. Ruppert to have adequate access
            to legal materials.

      4.    The sentence, life imprisonment, was unauthorized.

      5.    Prison officials retaliated against Mr. Ruppert.

      The district court dismissed the first three claims and held that the

defendants were entitled to summary judgment on the fifth claim. We agree

with these rulings.

      The fourth claim (unauthorized life sentence) was not discussed in

the district court’s opinion. But this omission was harmless because the

claim was invalid on its face.

II.   Appeal No. 14-2030

      We start with the first appeal (No. 14-2030).

      A.    The Appeal

      The first appeal involves the claims involving extension of

Mr. Ruppert’s confinement, loss of the opportunity to participate in



                                    - 3 -
rehabilitative programs, denial of access to legal materials, and invalidity

of the life sentence. In our view, all of these claims are facially invalid.

      1.    Standard of Review

      In reviewing the district court’s dismissal of these claims, we engage

in de novo review. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094

(10th Cir. 2009) (“Like dismissals under Rule 12(b)(6), we review de novo

a district court’s sua sponte dismissal pursuant to . . . § 1915(e)(2) in an

in forma pauperis proceeding.”).

      2.    Claims Discussed by the District Court

      The district court discussed three of the claims, explaining why they

fail as a matter of law.

      a.    Extending Confinement

      For example, the district court properly rejected the first claim

(extension of confinement to increase profits). As the district court

explained, this claim was conclusory.

      In the complaint, the plaintiff must allege sufficient facts—as

opposed to mere conclusions—to state a claim that is plausible on its face.

See S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). This plausibility

standard governs even though Mr. Ruppert has prosecuted the case without

an attorney. See Hall v. Witteman, 584 F.3d 859, 863-64 (10th Cir. 2009).




                                     - 4 -
      In the complaint, Mr. Ruppert alleges that

           the New Mexico Department of Corrections and the company
            operating his facility were “using crime to produce a
            commodity to feed the private prison sector” and

           “in order to maintain the financial structure,” prison officials
            processed “a high rate of disciplinary misconduct reports to
            deprive [inmates] of rehabilitation” and enhance sentences.

R. at 19.

      These allegations do not state a plausible claim involving harm to

Mr. Ruppert. He was sentenced to life imprisonment, and there is nothing

in the complaint to suggest extension of his confinement because of the

company’s “financial structure,” “feed[ing]” of the private prison industry,

or processing of misconduct reports.

      b.    Denial of the Opportunity to Participate in Rehabilitative
            Programs

      The district court also properly rejected Mr. Ruppert’s claim

involving his inability to participate in rehabilitative programs.

      These programs, in themselves, do not implicate constitutional

concerns. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Walford v.

INS ex rel. Colo., 48 F.3d 477, 478 (10th Cir. 1995). It is true that

constitutionally protected interests may sometimes arise from state law.

See Wilkinson v. Austin, 545 U.S. 209, 221 (2005). But state law can create

a protected interest only by imposing “substantive limitations on official

discretion.” Olim v. Wakinekona, 461 U.S. 238, 249 (1983).
                                     - 5 -
      Mr. Ruppert relies on N.M. Stat. Ann. § 33-8-3, which addresses

prison industries. This law states: “The purpose of the Corrections

Industries Act is to enhance rehabilitation, education and vocational skills

of inmates through productive involvement in enterprises and public works

of benefit to state agencies and local public bodies and to minimize inmate

idleness.” As the district court explained, this language does not limit

discretion in the administration of prison programs. Thus, the right to due

process is not violated by loss of opportunities to participate in

rehabilitative programs.

      c.    Denial of Legal Materials

      We also reject the claim involving Mr. Ruppert’s alleged inability to

access legal materials.

      The Supreme Court clarified in Lewis v. Casey, 518 U.S. 343, 350-51

(1996), that prisoners lack “an abstract, freestanding right to a law library

or legal assistance,” but do enjoy a right of access to the courts.

      To plead a violation of this right, a prisoner must allege facts

indicating an “actual injury” involving a nonfrivolous legal claim about a

conviction or the conditions of confinement. Gee v. Pacheco, 627 F.3d

1178, 1191 (10th Cir. 2010). 2 The prisoner’s allegations of actual injury


2
     Mr. Ruppert contends that no actual injury need be shown when a
“core” means of access is involved, citing Sands v. Lewis, 886 F.2d 1166,
                                                                (continued)
                                   - 6 -
must go beyond mere conclusions. See Wardell v. Duncan, 470 F.3d 954,

959 (10th Cir. 2006) (stating that conclusory allegations of injury will not

suffice).

      We agree with the district court that Mr. Ruppert’s conclusory

allegations of injury, which were not tied to the adverse disposition of a

particular legal claim, do not satisfy the prejudice requirement in Lewis.

      Mr. Ruppert insists that because he could not use legal reference

material, he did not know how to supplement his pleadings in a related

federal case after prison officials filed a Martinez report. Actually, he was

able to prepare a supplemental pleading in that case. The district court

simply explained that Mr. Ruppert did not need to file anything until

prison officials filed a Martinez report. This incident does not suggest an

impediment to Mr. Ruppert’s prosecution of his federal suit. 3



1171 (9th Cir. 1989). But Sands was overruled by Lewis v. Casey. See Silva
v. Di Vittorio, 658 F.3d 1090, 1102 n.8 (9th Cir. 2011).
3
      On occasion, Mr. Ruppert attempts to shift the focus of his claim
regarding legal materials, arguing that he is complaining about the
inability to obtain legal knowledge rather than a lack of court access. This
argument is not tenable under Lewis, which requires an actual injury
because inmates lack “an abstract, freestanding right to a law library or
legal assistance.” Lewis, 518 U.S. at 351.
      Mr. Ruppert relies on (1) 28 U.S.C. § 414, which deals with the
transmittal of materials between government officers and their successors,
and (2) 28 U.S.C. § 451, which includes various definitions. These
provisions lack any bearing on the claims.
                                                                  (continued)
                                    - 7 -
      3.    Additional Claim: Validity of a Term for Life Imprisonment

      In the complaint, Mr. Ruppert also attacks the validity of his

sentence to life imprisonment. According to Mr. Ruppert, New Mexico

lacks statutory authority to keep individuals in prison for life after they

have spent 30 years in confinement. The district court apparently

overlooked this claim in the dismissal order. 4 But the oversight is harmless

because this claim would have been invalid under New Mexico law.

      In New Mexico, life imprisonment was an available sentence for Mr.

Ruppert’s murder conviction. When Mr. Ruppert was sentenced, state law

designated the crime as a capital felony, creating two possible sentences:

the death penalty or life imprisonment. See § 31-18-14(A). 5 New Mexico



      Mr. Ruppert also alleges restrictions on inmate-to-inmate legal
assistance. These allegations are insufficient for two reasons. First, the
allegations do not relate to an actual injury. Second, inmates lack a First
Amendment right to provide legal assistance to other inmates; such
assistance may be restricted by reasonable regulation when (as here) the
prison offers alternative means of court access. Shaw v. Murphy, 532 U.S.
223, 231 & n.3 (2001); Smith v. Maschner, 899 F.2d 940, 950 (10th Cir.
1990).
4
      The oversight was understandable, for Mr. Ruppert’s filings were
numerous and difficult to understand. The district court did a laudable job
of interpreting the complaint.
5
      Unless otherwise specified, we have used the New Mexico statutory
references as they existed in 1983, when the crime was committed.
Mr. Ruppert sometimes refers to laws repealed and replaced prior to 1983.
Those versions of the law did not apply to Mr. Ruppert’s case. But the
statutory differences are immaterial for our purposes.


                                     - 8 -
later abolished the death penalty, stating that if someone had been

sentenced to death, the sentence would automatically change to life

imprisonment. See id. § 31-18-14(B). But that amendment did not affect

Mr. Ruppert, for his sentence had always been life imprisonment. That

sentence was expressly authorized by New Mexico law both before and

after the state’s abolition of the death penalty.

      Mr. Ruppert also argues that New Mexico law does not adequately

define life sentences, which lack determinate minimum and maximum

terms of years. It is true that life sentences in New Mexico are not framed

by such terms. See Compton v. Lytle, 81 P.3d 39, 43 (N.M. 2003) (stating

that life sentences lack a determinate maximum term, refusing to read

specification of 30-year parole-eligibility date as creating a determinate

minimum term). Rather, such sentences are framed by reference to

      ●     the requirement of “thirty years of imprisonment before the
            possibility of parole [not release],” 6 and

      ●     the directive that, absent parole, imprisonment continues “until
            the death of the prisoner.” 7

But that does not leave a life sentence “undefined,” for the meaning of a

life sentence is clear: imprisonment for the rest of the prisoner’s life

(unless the inmate obtains parole after imprisonment for at least 30 years).

6
      State v. Trujillo, 42 P.3d 814, 820 (N.M. 2002).
7
      State v. Juan, 242 P.3d 314, 327 (N.M. 2010).


                                     - 9 -
See State v. Trujillo, 42 P.3d 814, 820 (N.M. 2002) (stating that life

imprisonment has been interpreted in New Mexico to mean imprisonment

for 30 years before the possibility of parole or good time credits); see also

State v. Juan, 242 P.3d 314, 327 (N.M. 2010) (stating that the length of a

life sentence cannot be determined until the inmate dies). Mr. Ruppert does

not cite any authority suggesting that this understanding of state law

renders his life sentence invalid as a matter of state law or suspect as a

matter of federal law.

      In sum, Mr. Ruppert has not demonstrated any error in the dismissal

order in Appeal No. 14-2030.

      B.      Pending Motions

      Mr. Ruppert has filed eight motions in this appeal. We address them

separately.

      1.      “Motion for Damages at the Appellate Court’s Discretion”
              (Jan. 26, 2015)

      Mr. Ruppert filed a motion for damages, to be awarded at our

discretion. But we lack discretion to award damages. This motion is

denied.

      2.      “Motion for Plenary Review” (Jan. 26, 2015)

      In this motion, Mr. Ruppert appears to seek a congressional

investigation into the District of New Mexico’s adjudication of prisoner



                                    - 10 -
cases. The Court lacks the power to order such an investigation. This

motion is denied.

      3.    Motion for Miscellaneous Relief (July 25, 2014)

      In the aspects of this motion that remain pending, Mr. Ruppert

appears to seek appointment of counsel and waiver of the filing fee. These

requests are unwarranted, and we deny the motion.

      4.    Motion for Change of Venue (July 11, 2014)

      Mr. Ruppert seeks a change of venue to another federal district

within the Tenth Circuit. This motion is moot because the proceedings in

district court are now terminated in light of our disposition of the appeal.

      5.    Fraud on the Court (July 11, 2014)

      This is, in effect, an unauthorized supplemental brief. This brief is

stricken.

      6.    Motion for Attorney Fees (July 11, 2014)

      Mr. Ruppert has not prevailed in the appeal. This motion is denied.

      7.    Motion for Investigation (May 16, 2014)

      Mr. Ruppert complains of a call, but the caller is not identified. This

motion is denied.

      8.    Motion for Leave to Proceed in Forma Pauperis (Apr. 25,
            2014)

      This motion is granted.



                                    - 11 -
III.   Appeal No. 14-2123

       We turn to the second appeal (No. 14-2123).

       A.   The Appeal

       This appeal involves Mr. Ruppert’s retaliation claim. On this claim,

the district court granted summary judgment to the defendants. We agree

with this ruling.

       The magistrate judge and district judge thoroughly explained the

evidentiary deficiencies on the retaliation claim. On appeal, Mr. Ruppert

focuses largely on the prior dismissal order and other extraneous matters,

failing to address the substance of the district court’s rationale.

       In an appeal from the grant of summary judgment, the appellant must

advance an argument (with supporting references to the evidence)

regarding why the district court’s decision was incorrect. See Gross v.

Burggraf Constr. Co., 53 F.3d 1531, 1546-47 (10th Cir. 1995). Even for a

pro se appellant, “the court cannot take on the responsibility of serving as

the litigant’s attorney in constructing arguments and searching the record.”

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). There is nothing in Mr. Ruppert’s briefs that would suggest error in

the summary judgment ruling. 8


8
      Mr. Ruppert complains that he was not told about the need to respond
to the defendants’ summary judgment motion. But he eventually did
                                                               (continued)
                                  - 12 -
      B.      Pending Motions

      Mr. Ruppert has filed nine motions in this appeal. We address them

separately.

      1.      Motion for Rule 11 Sanctions (Jan. 26, 2015)

      Federal Rule of Civil Procedure 11 addresses sanctions in district

court, not our court. This motion is denied.

      2.      Motion for Attorney Fees (Jan. 26, 2015)

      Mr. Ruppert has not prevailed in this appeal. Thus, we deny his

motion for an award of attorney fees.

      3.      “Motion to Be Exempt from 1997(e) PLRA” (Jan. 26, 2015)

      This motion is, in effect, an unauthorized supplemental brief. This

document is stricken.

      4.      “Motion for Plenary Review” (Jan. 26, 2015)

      This motion is denied for the reasons discussed above.

      5.      Motion for Award of Damages (Jan. 26, 2015)

      This motion is denied for the reasons discussed above.




respond. Though the defendants moved to strike the response on timeliness
grounds, the district court denied the motion to strike and considered the
response. We too have considered the response brief.


                                    - 13 -
       6.    “Motion to Waive Filing Fee or Assess Filing Fee for
             Second Appeal No. 14-2123 into Pending Appeal
             No. 14-2030” (Oct. 6, 2014)

       Mr. Ruppert seeks relief from the filing fee. We deny the request.

       In part, Mr. Ruppert wants us to waive the filing fee. For the sake of

argument, we can assume that we have this authority. Cf. Porter v. Dep’t of

Treasury, 564 F.3d 176, 180 (3d Cir. 2009) (holding that the Prison

Litigation Reform Act prevents the Court of Appeals from waiving an

inmate plaintiff’s filing fee). But even with this assumption, we would

deny the motion because Mr. Ruppert has not justified waiver of the filing

fee.

       Mr. Ruppert is also apparently seeking some alternative form of

relief with regard to the filing fee. The precise nature of that relief is

unclear. For example, it is possible that Mr. Ruppert is asking us to apply

his installment payments in the first appeal (No. 14-2030) to the filing fee

in both appeals (14-2030 and 14-2123). If so, the request would effectively

involve waiver of the filing fee in the second appeal (No. 14-2123); and we

have already held that Mr. Ruppert is not entitled to waive the filing fee in

the second appeal (No. 14-2123). Thus, if this is what Mr. Ruppert is

wanting, we would deny the request.

       But it is not clear that this is what Mr. Ruppert is wanting. It may be

that he is simply wanting us to postpone his installment payments in the


                                     - 14 -
second appeal (No. 14-2123) until he has fully paid the filing fee in the

first appeal (No. 14-2030). If so, we have held in Christensen v. Big Horn

Board of County Commissioners that this relief is unavailable.

374 F. App’x 821, 829-33 (10th Cir. 2010). We regard Christensen as

persuasive, concluding as we did in that case that the installment payments

must be paid simultaneously in both appeals. Thus, if Mr. Ruppert is

requesting postponement of the installments in the second appeal

(No. 14-2123), we would deny the request.

      Accordingly, we deny the motion based on either of the possible

constructions.

      7.   Request for Fee Consolidation (Oct. 6, 2014)

      This request is denied for the reasons stated above.

      8.   Motion for Leave to Proceed in Forma Pauperis (Oct. 6,
           2014)

      This motion is granted.

IV.   Conclusion

      We affirm in Appeals Nos. 14-2030 and 14-2123.


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge



                                   - 15 -
