                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            OCT 16 2000
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 DONNELL JOSEPH,

               Plaintiff-Appellant,                     No. 00-1208
          v.                                                D. Colo.
 UNITED STATES FEDERAL                             (D.C. No. 98-M-2068)
 BUREAU OF PRISONS, DWAYNE
 ROBERT ROBERSON, JUANITA
 ANTONIA MCCULLEY,

               Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.           **




      Mr. Joseph, an inmate in federal prison in Colorado, filed a pro se civil

rights complaint under 42 U.S.C. § 1983, that asserts several claims, which can


      *
        This order and judgment is not binding precedent, except under the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.

      **
         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.
grouped into four categories: (1) He was sexually harassed by Defendant Juanita

McCulley, a secretary in the education department where Mr. Joseph worked, in

violation of his Eighth Amendment right to be free from cruel and unusual

punishment and in violation of his Fifth Amendment right to equal protection; (2)

the Defendants unlawfully retaliated against Mr. Joseph by (a) terminating him

from his job in the education department, (b) removing him from the prison GED

program, (c) denying him access to the law library and (4) classifying him as in

the “red card” high-visibility program; (3) the district court abused its discretion

when it refused to allow Mr. Joseph to amend his complaint; and (4) the district

court abused its discretion when it refused to appoint counsel for Mr. Joseph.

      In his report and recommendation, the magistrate judge determined that the

Bureau of Prisons was immune from suit, as were the individual Defendants in

their official capacities. The magistrate judge therefore recommended that the

claims against the Bureau of Prisons and the individual Defendants in their

official capacities be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of

subject jurisdiction. The magistrate judge also recommended that the claims

against the individual Defendants in their individual capacities be dismissed

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief.




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                                     I. DISCUSSION

        We review de novo a district court’s dismissal pursuant to Fed. R. Civ. P.

12(b)(1) for lack of subject jurisdiction.    See Redmon ex rel. Redmon v. United

States , 934 F.2d 1151, 1155 (10th Cir. 1991). We also review de novo a district

court’s dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim

for relief.   See Bauchman ex rel. Bauchman v. West High Sch.     , 132 F.3d 542, 550

(10th Cir. 1997). We construe the pleadings and papers of a pro se appellant

liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam).

        A. Sexual Harassment

        Mr. Joseph asserted that Ms. McCulley violated his Eighth Amendment

rights by subjecting him to sexual harassment: She allegedly touched him several

times in a suggestive manner and exposed her breasts to him. “As a threshold

matter of law, we must first decide whether [Mr. Joseph] could have suffered, at

the hands of corrections officials, any deprivation of his constitutional rights

under the due process clause of the Fourteenth Amendment and the cruel and

unusual punishments clause of the Eighth Amendment.” Harris by and through

Harris v. Maynard, 843 F.2d 414, 415 (10th Cir. 1988).

        “We agree . . . that an inmate has a constitutional right to be secure in h[is]

bodily integrity and free from attack by prison guards.” Hovater v. Robinson, 1

F.3d 1063, 1068 (10th Cir. 1993). Further, “because the sexual harassment or


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abuse of an inmate by a corrections officer can never serve a legitimate

penological purpose and may well result in severe physical and psychological

harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and

wanton infliction of pain,’” that is forbidden by the Eighth Amendment. Freitas

v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoting Whitley v. Albers, 475 U.S.

312, 319 (1986)) (internal quotation marks omitted)); see also Barney v.

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (recognizing inmates’ sexual

harassment allegations may be sufficiently serious to state a claim under the

Eighth Amendment). “To prevail on a constitutional claim of sexual harassment,

an inmate must therefore prove, as an objective matter, that the alleged abuse or

harassment caused ‘pain’ and, as a subjective matter, that the officer in question

acted with a sufficiently culpable state of mind.” Freitas, 109 F.3d at 1338 (citing

Hudson v. McMillian, 503 U.S. 1, 8 (1992)).

      We agree with the district court that the alleged instances of sexual

harassment were not “objectively, sufficiently serious” to demonstrate a use of

force of a constitutional magnitude. See Farmer v. Brennan, 511 U.S. 825, 834

(1994) (internal quotation marks omitted). See also, Boddie v. Schnieder, 105

F.3d 857, 860-61 (2d Cir. 1997) (noting that sexual abuse by a corrections officer

may be cognizable as a violation of a prisoner's Eighth Amendment rights, but

ultimately holding that the circumstances alleged by the plaintiff were not “severe


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enough to be objectively, sufficiently serious”) (internal quotation marks

omitted). In addition, there is no evidence of deliberate indifference on the part

of the Defendants. Cf. Barney, 143 F.3d at 1310 (noting that inmates failed to

show deliberate indifference). Finally, as to Mr. Joseph’s claim that the unwanted

touching caused him emotional distress and violated the Eighth Amendment, the

claim is insufficient to implicate the Eighth Amendment.



      B. Retaliation

      With respect to plaintiff's retaliation claims, Mr. Joseph must demonstrate

that the various disciplinary actions were taken because of the exercise of his

constitutional rights. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.

1998). Mr. Joseph claims that the denial of access to the prison law library, his

loss of his prison job, his expulsion from the GED program, and his classification

as a “red card” high-visibility prisoner for escapees, sexual deviants, and sexual

stalkers violated his Fifth Amendment rights to equal protection, his First

Amendment rights, and his Eighth Amendment right to be free from cruel and

unusual punishment.

      In Craig v. Eberly, 164 F.3d 490 (10th Cir. 1998), we summarized the

applicable standards for constitutional challenges to prison conditions:

      [J]ail officials [must] provide humane conditions of confinement by
      ensuring [that] inmates receive the basic necessities of adequate food,

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       clothing, shelter, and medical care and by taking reasonable measures
       to guarantee the inmates’ safety. To hold a jailer personally liable for
       violating an inmate’s right to humane conditions of confinement, a
       plaintiff must satisfy two requirements, consisting of an objective and
       subjective component.
                The objective component requires that the alleged deprivation be
       sufficiently serious. . . . [J]ail conditions may be restrictive and even
       harsh without violating constitutional rights. Indeed, only those
       deprivations denying the minimal civilized measure of life’s necessities
       . . . are sufficiently grave to form
       the basis of an Eighth Amendment violation. This inquiry turns not only
       on the severity of the alleged deprivations, but also on their duration.

Id. at 495 (internal quotation marks and citations omitted).

              1. Loss of Job and Expulsion from the GED Program

       As to Mr. Joseph’s loss of his job and expulsion from the GED program,

“[p]risoners have no constitutional right to educational or vocational

opportunities during incarceration.” Wishon v. Gammon, 978 F.2d 446, 450 (8th

Cir. 1992); see also Templeman v. Gunter, 16 F.3d 367, 370 (10th Cir. 1994)

(stating that “[w]ithout . . . a statute [entitling a prisoner to a prison job],

prisoners do not have a constitutional right to employment”). Mr. Joseph states

no Eighth Amendment claim.

       As to his equal protection claim, “if the state provides educational or

vocational opportunities to its prisoners, it cannot deny equal access to such

services to all prisoners absent a rational basis.” Wishon, 978 F.2d at 449; see

also Barney, 143 F.3d at 1312 n.15 (“The Equal Protection Clause in the prison-

conditions context is usually invoked to remedy disparities in educational,

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vocational, and recreational programs offered to male and female inmates.”)

(citation omitted). There is no evidence that Mr. Joseph was treated differently

from other inmates who were similarly situated. Mr. Joseph’s equal protection

claim also fails.

             2. Access to Law Library

      As to the denial of access to the law library, to state a cognizable claim

under Lewis v. Casey, 518 U.S. 343 (1996), Mr. Joseph had to demonstrate an

actual injury that hindered his effort to pursue a nonfrivolous legal claim. See id.

at 351-53. There is no allegation that Mr. Joseph’s ability to litigate this claim or

any others have been diminished as a result of the denial of access. In addition,

Mr. Joseph points to only one request for law library services. Mr. Joseph’s

allegations of constitutional deprivations in this regard are unsubstantial.

             3. “Red Card” Status

       The Constitution does not entitle an inmate to any particular degree of

liberty in prison; thus, changes to an inmate’s prison classification do not involve

deprivations of liberty. See Templeman, 16 F.3d at 369. Mr. Joseph’s

classification on “red card” status amounts to a security classification decision,

analogous to a transfer to administrative segregation resulting from disciplinary

violations. See id.

      Although a state may create liberty interests that are protected by the Due


                                          -7-
Process Clause, such 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 Due 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, 484 (1995) (citations omitted). Moreover, our

review of the record fails to reveal the imposition of the “atypical and significant

hardship” contemplated by Sandin or procedural irregularities leading to his

classification on red-card status placement in administrative segregation. Under

these circumstances, there was no violation of Mr. Joseph’s due process rights.

Nor were his First Amendment or equal protection rights affected. Mr. Joseph

has failed to allege or show harm that he has suffered by being placed on red-card

status or that similarly situated individuals of different races were treated

differently. See Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d 711, 712

(8th Cir. 1999).

      C. Appointment of Counsel

      Mr. Joseph argues the district court erred in denying his motion to appoint

counsel. “We review the denial of appointment of counsel in a civil case for an

abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

In considering whether to appoint counsel, the factors the district court should

consider include “‘the merits of the litigant’s claims, the nature of the factual

                                          -8-
issues raised in the claims, the litigant’s ability to present his claims, and the

complexity of the legal issues raised by the claims.’” Id. at 979 (quoting

Williams v. Meese, 926 F.2d 994, 996 (10th Cir.1991)). After careful review of

the record, we conclude the district court did not abuse its discretion in denying

Mr. Joseph’s motion to appoint counsel.

      D. Motion to Amend Complaint

      We review the district court’s denial of a motion to amend a complaint for

an abuse of discretion. See Lambertsen v. Utah Dep’t of Corrections, 79 F.3d

1024, 1029 (10th Cir.1996). The magistrate judge noted that Mr. Joseph offered

no new facts to include in his complaint to cure any deficiencies and that he did

not tender an amended complaint to the court. The district court did not abuse its

discretion in denying Mr. Joseph’s motion to amend.

                                  II. CONCLUSION

      For the foregoing reasons, we affirm the district court’s order granting the

Defendants’ motion to dismiss and we deny Mr. Joseph’s motion to proceed in

forma pauperis.

                                                 Entered for the Court,



                                                 Robert H. Henry
                                                 Circuit Judge



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