                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 9, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


    MICHAEL WHITINGTON,

              Plaintiff-Appellant,

    v.                                                  No. 10-1247
                                           (D.C. No. 1:07-CV-00663-LTB-KMT)
    CHRISTINE MOSCHETTI; LT.                             (D. Colo.)
    TRUJILLO; C/O REAL; CAPT.
    GONZALES; LT. STEINBECK;
    WARDEN OF DRDC IN 1998;
    PLAINTIFF’S CASE MANAGER IN
    1998 AT DRDC; CAPT. BUTLER;
    LIMON’S IWLP SUPERVISOR;
    WARDEN ESTEP; CAPT.
    MICHAELS; C/O GONZALES;
    ASST. WARDEN OF FLCF; CDOC
    MEDICAL DIRECTOR; JOE ORTIZ;
    WILLIAM ZALMAN; DIRECTOR OF
    CDOC MENTAL HEALTH;
    THOMAS BULLARD; E. LITTLE;
    LT. VAN METER; WARDEN
    LAYBA; SCCF PROGRAMS
    MANAGER,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.


      Michael Whitington, an inmate of the Colorado Department of Corrections

(CDOC), brought this pro se action alleging violations of his civil rights by

various CDOC officials. The district court granted summary judgment to all the

defendants, denied Whitington’s motion for leave to amend his Second Amended

Complaint (SAC), and dismissed the action. He appeals, and we affirm.

                                 BACKGROUND

      The SAC asserted numerous claims against correctional officers at several

CDOC facilities and administrators at CDOC headquarters, alleging that

defendants (1) at Denver Reception and Diagnostic Center (DRDC) violated

Whitington’s due-process rights by classifying him as a violent offender; (2) at

Arkansas Valley Correctional Facility (AVCF) retaliated against him for filing

grievances and complaints to the warden; (3) at Limon Correctional Facility

(LCF) (a) discriminated against him based on his mental disability by firing him,

not allowing him to have a job, and punishing him for not having a job; and

(b) transferred him in retaliation for his litigation, grievances, and complaints to

the warden; (4) at Fort Lyon Correctional Facility (FLCF) transferred him in

retaliation for his grievances and complaints; (5) at San Carlos Correctional

Facility (SCCF) refused to create jobs and programs for mentally disabled

inmates; (6) at Sterling Correctional Facility (SCF) denied his due-process and

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First Amendment rights by destroying return-address labels on mail to him; and

(7) at various facilities and through policies adopted at CDOC headquarters

denied him treatment for his Hepatitis-C.

      On appeal Whitington presents arguments challenging the dismissal of

some of these claims. He abandons others by making no argument concerning

them. We consider only the claims argued in his briefing, and will discuss the

specific facts applicable to each claim as part of our analysis of that claim.

                                     ANALYSIS

      1. Standard of Review

      “We review the grant of summary judgment de novo, applying the same

standard as the district court . . . .” Gwinn v. Awmiller, 354 F.3d 1211, 1215

(10th Cir. 2004). Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the record on

summary judgment in the light most favorable to the nonmoving party. Gwinn,

354 F.3d at 1215.

      We review the district court’s denial of Whitington’s motion for leave to

amend his complaint for an abuse of discretion. Fields v. Okla. State

Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007). Because he appears pro se,

“we review his pleadings and other papers liberally and hold them to a less




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stringent standard than those drafted by attorneys.” Trackwell v. United States,

472 F.3d 1242, 1243 (10th Cir. 2007).

      2. Employment-Discrimination Claim

      The SAC alleged that defendants at LCF and SCCF discriminated against

Whitington as a mentally disabled person by denying him equal opportunities in

prison employment and programs. He contended that the defendants’ actions

violated the Equal Protection Clause, the Americans With Disabilities Act (ADA),

and the Rehabilitation Act. In his appellate briefing Whitington presents no

specific argument relevant to his ADA or Rehabilitation Act claims.

Accordingly, we address only his constitutional claims arising under the Equal

Protection Clause.

            A. Limon Correctional Facility

      The magistrate judge recommended that summary judgment be granted on

this claim because Whitington had made “no showing that he was treated

differently from a similarly situated person at LCF.” R., Vol. I at 234. The

district court adopted this recommendation. We affirm, but for slightly different

reasons.

      Whitington alleged that he was housed at LCF from April to August 2005.

When he first arrived at LCF, he was given a job on the Inmate Work Labor

Program (IWLP) work crew. The IWLP crew is a temporary assignment that all




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inmates must complete for 30 days before they can receive a permanent job.

According to Whitington, it pays less than other jobs at the prison.

      Whitington alleged that because he was mentally disabled the IWLP

supervisor would not allow him to work. Instead, the supervisor sent him back to

his unit while the other inmates worked, telling Whitington he would mark him

down as if he had worked. At some point, however, this arrangement ceased and

the IWLP fired Whitington. He claimed that he was told that the firing was

because of his mental disability. As a result of being without a job, he allegedly

was sanctioned by being locked in his cell for approximately 21 hours per day.

He was later reinstated on the IWLP crew but again was not permitted to work as

other inmates were because of his disability.

      In response to Whitington’s allegations, defendants submitted an affidavit

from Susan Butler, his case manager at CDOC. She presented a different version

of events. She explained that Whitington was assigned to the IWLP when he

arrived at the LCF on April 12, 2005, but was “released from the IWLP on April

28, 2005 because he wanted to work in Food Service.” Id. at 179. He was “hired

for Food Service on April 29, 2005 and was released from Food Service on

May 9, 2005 because he was medically unable to participate in this position.”

Id. at 179-80. He returned to work on the IWLP from May 23 until June 7, 2005,

when he was again released for medical reasons. He was then placed back in the

IWLP on July 11, 2005, where he remained employed until he left the LCF.

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      “The Fourteenth Amendment guarantee of equal protection is essentially a

direction that all persons similarly situated should be treated alike.” Straley v.

Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009), cert. denied,

130 S. Ct. 1737 (2010) (internal quotation marks omitted). Whitington asserts an

equal-protection claim based on disability. Disability is not a “suspect

classification” for equal-protection purposes. See, e.g., Copelin-Brown v. N.M.

State Pers. Office, 399 F.3d 1248, 1255 (10th Cir. 2005). Nor did Whitington

have a fundamental right to a prison job. See Williams v. Meese, 926 F.2d 994,

998 (10th Cir. 1991).

      Because he did not assert a fundamental right or differential treatment

based on a suspect classification, Whitington was required to establish that his

treatment was not reasonably related to some legitimate penological purpose. See

Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). To meet this burden, he

had to present facts sufficient to “overcome a presumption of government

rationality.” Brown v. Zavaras, 63 F.3d 967, 971-72 (10th Cir. 1995). He failed

to meet this burden.

      “[I]n response to a properly supported motion for summary judgment, a

non-movant must produce sufficient evidence for a reasonable trier of fact to find

in its favor at trial on the claim or defense under consideration.” Nahno-Lopez v.

Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Whitington did not respond to the

defendants’ motion for summary judgment on this claim. In particular, he

                                          -6-
presented no evidence to counter the assertions made in Butler’s affidavit,

although we may treat his verified complaint as an affidavit for

summary-judgment purposes, see Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311

(10th Cir.) (verified complaint may be treated as affidavit if it satisfies

Fed. R. Civ. P. 56 standards), cert. denied, 131 S. Ct. 469 (2010).

      Even so, the only significant factual dispute involves whether Whitington

was fired from his IWLP job (as he claims) or voluntarily left it to pursue a food

service job (as Butler asserts). And that dispute is insufficient to prevent the

entry of summary judgment. Whitington failed to dispute the defendants’

assertion that he proved medically incapable of performing the jobs to which he

was assigned. He failed to argue that being removed from jobs he was incapable

of performing (or being paid for them without being required to show up for

work) was not rationally related to legitimate penological purposes such as

ensuring his safety and that of other inmates.

      Whitington also has not asserted that other, nondisabled inmates were never

assigned to the IWLP team after their first 30 days at LCF. Finally, he failed to

show that his extended hours of confinement during periods when he was on




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unassigned status were not rationally related to a legitimate penological purpose

such as the need to account for and control unemployed inmates. In short, he has

failed to present evidence that could overcome the presumption of government

rationality. See Brown, 63 F.3d at 971-72; cf. Gee v. Pacheco, 627 F.3d 1178,

1185 (10th Cir. 2010) (prisoner claims often will not be plausible absent factual

allegations showing why usual constitutional justifications do not apply). We

therefore affirm summary judgment on this claim.

                    B. San Carlos Correctional Facility

      SCCF is a facility that houses mentally ill inmates. Whitington was

assigned there from August 2006 until February 2007. He asserted that the

defendants failed to provide jobs and programs at SCCF comparable to those at

other facilities, thereby discriminating against mentally disabled inmates like

himself who were assigned to SCCF. He also asserted that when he was provided

work at SCCF, he was paid less than he would have been paid at other facilities

within CDOC.

      The district court granted summary judgment on this claim because “the

privileges, programs and other accouterments of one prison need not be extended

to all within the same system.” R., Vol. I at 233 (magistrate judge

recommendation). We agree. Given the special population at SCCF, it would be

natural for it to focus on a different set of inmate services than other facilities do.

It is not necessary for it to duplicate programs in all other facilities as well as

                                          -8-
provide for the particular needs of the mentally ill. Again, Whittington has failed

to present any evidence to overcome the presumption of rationality of SCCF’s

choice of programs. 1

      3. Seizure of Mail

      Whitington complained that while at SCF he received a letter and a card

from the prison mailroom with the return-address labels torn off by mailroom

staff. The mailroom staff took this action in reliance upon CDOC policy, which

provides that mail may be censored if it contains “decorative stamps or stickers

on the envelopes or contents.” R., Vol. I at 190-91. Whitington alleged this

prevented him from writing back to the friend who had sent him the mail, thus

purportedly violating his “right to due process and his first amendment right to

write his friend.” Id. at 95 ¶ 124.

      “Correspondence between a prisoner and an outsider implicates the

guarantee of freedom of speech under the First Amendment and a qualified liberty

interest under the Fourteenth Amendment.” Treff v. Galetka, 74 F.3d 191, 194

(10th Cir. 1996). See also Procunier v. Martinez, 416 U.S. 396, 409-19 (1974)

(recognizing First Amendment and Fourteenth Amendment interests in inmate

correspondence), overruled on other grounds by Thornburgh v. Abbott, 490 U.S.



1
      Whitington also claims that his “mental health care at SCCF was
substandard,” Aplt. Br. at 12, but he provides no details and no cogent appellate
argument on this point. We therefore do not address this contention.

                                         -9-
401, 413-14 (1989). The magistrate judge concluded that Whitington’s

allegations concerning this claim, “taken as true, simply do not rise to the level of

a constitutional violation” because the return-address labels were removed

without punitive intent as part of a content-neutral policy that did not violate

Whitington’s rights. R., Vol. I at 235. We affirm, although without reaching the

constitutional issues. See Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005)

(In considering summary-judgment determinations, court of appeals may affirm

district court’s grant of summary judgment for any reason supported by record.)

We conclude that even if Whitington can show a constitutional violation, the

defendants are entitled to qualified immunity concerning this claim.

      Perhaps a prisoner’s constitutionally protected interest in maintaining

communication with nonprisoners includes the right not to have a nonprisoner’s

address label destroyed without notice to the prisoner. But the defendants, who

have been sued in their individual capacities, are protected from liability by

qualified immunity if the constitutional right allegedly violated was not clearly

established at the time of their challenged actions.

      “Qualified immunity protects governmental officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Weise v.

Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (internal quotation marks omitted).

“Ordinarily, in order for the law to be clearly established, there must be a

                                        -10-
Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150,

1155 (10th Cir. 2010) (internal quotation marks omitted). Although there does

not need to be a “prior case[ ] with precisely the same facts,” Pierce v. Gilchrist,

359 F.3d 1279, 1298 (10th Cir. 2004), “[o]ur inquiry . . . must be undertaken in

light of the specific context of the case, not as a broad general proposition,”

Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009) (internal quotation marks

omitted). The pertinent question is “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation.” Id. (internal quotation

marks omitted).

      Whitington appears to assert two rights: a First Amendment right to

receive the content of return-address labels in order to use the information

provided to correspond with a friend outside the prison, and due-process rights to

be notified of the prison’s decision to dispose of the return-address labels and to

be afforded an opportunity to be heard about how they should be disposed of. But

these rights were certainly not clearly established when the return-address labels

were destroyed. Although courts have considered whether a prisoner is entitled to

correspondence when the correspondence contains labels or stickers, see, e.g.,

Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990), Whitington has not cited,

nor have we found, any case finding a constitutional violation in which the

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prisoner received the enclosed letter but was merely denied a return-address label

associated with it. Suggesting the contrary, we have held that an inmate who

challenged a policy of returning correspondence with stickers to the sender had

not shown the violation of any protected right. See id. We noted that the inmate

had “pointed to nothing in the record suggesting that personal correspondence

sent without the offending stickers or labels was not forwarded to him.” Id.

Here, Whitington concedes that after the return-address labels were removed, he

received the correspondence to which they had been attached.

      In light of our holding in Smith and the lack of in-point authority that

would have put the defendants on notice concerning the alleged illegality of their

conduct, Whitington has failed to show that the defendants violated clearly

established law. The defendants were therefore entitled to qualified immunity,

and summary judgment was properly entered for them on this claim.

      4. Denial of Hepatitis C Treatment

      The SAC alleged that Whitington’s Hepatitis-C condition met CDOC’s

requirements for treatment of the disease, but that the defendants had delayed this

treatment by (1) failing to provide timely notice that he needed treatment and

qualified for it, (2) requiring him as a condition of receiving treatment to take

drug and alcohol classes that he had already taken, and then (3) failing to provide

him with adequate opportunities to take the classes. He claimed that these delays




                                        -12-
constituted cruel and unusual punishment in violation of his Eighth Amendment

rights.

          “A prison official’s deliberate indifference to an inmate’s serious medical

needs violates the Eighth Amendment.” Sealock v. Colo., 218 F.3d 1205, 1209

(10th Cir. 2000). An Eighth Amendment claim has both an objective component

(the deprivation must be sufficiently serious) and a subjective component (the

official must have acted with a sufficiently culpable state of mind). See id. “In

cases challenging the conditions of a prisoner’s confinement, [including a claim

concerning medical treatment,] the subjective standard is one of deliberate

indifference to inmate health or safety.” Perkins v. Kan. Dep’t of Corr., 165 F.3d

803, 809 (10th Cir. 1999). “Prison officials violate the Eighth Amendment when

they are deliberately indifferent to the serious medical needs of prisoners in their

custody.” Id. at 811.

          The district court determined that Whitington failed to establish either

the objective or the subjective elements of his Eight Amendment claim. We agree

with the district court’s analysis concerning the objective component, and hence

need not discuss the subjective component.

          Whitington argues that he completed a drug-and-alcohol treatment program

sometime between 2000 and 2001 and was therefore eligible for Hepatitis C




                                            -13-
treatment when he arrived at LCF and began requesting treatment in April 2005. 2

But “[d]elay in medical care can only constitute an Eighth Amendment violation

if there has been deliberate indifference which results in substantial harm.” See

Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (internal quotation marks and

brackets omitted) (emphasis added)).

      Defendants presented expert evidence that there was no such harm.

Together with their summary-judgment motion, they submitted a thorough

affidavit from Dr. Paula Frantz, Chief Medical Officer of the CDOC. R., Vol. I at

297-321. In 25 pages Dr. Frantz detailed Whitington’s medical care in the CDOC

from August 24, 1998, through July 22, 2009. She concluded: “There is no

evidence that Mr. Whitington has end stage liver disease. Hepatitis C progresses

slowly, typically over the course of decades. There is no evidence to suggest that

Mr. Whitington has had substantial progression of liver disease while waiting for

stabilization of his psychiatric illness and completion of drug and alcohol

programs.” Id. at 319. Whitington offered no contrary evidence. We conclude

that he failed to show substantial harm from the defendants’ alleged deliberate

indifference to his serious medical condition.


2
       There appears to be a factual dispute concerning whether Whitington
satisfied the treatment requirement with classes he took before 2005. There is no
dispute, however, that he agreed to retake and complete the classes in 2005,
essentially conceding that he would need to complete them if he wished to receive
treatment. He did in fact complete the classes on October 17, 2008, through the
Therapeutic Community program.

                                        -14-
      5. Leave to Amend Complaint

      On November 30, 2009, Whitington filed a motion for leave to amend his

second amended complaint. The proposed amendment would have refined and

supplemented his Eighth Amendment claim relating to denial of Hepatitis C

treatment. The district court denied him leave to amend, reasoning that the

amendment was both untimely and futile. Discerning no abuse of discretion in

this ruling, we affirm.

      6. Temporary Restraining Order

      On September 23, 2009, Whitington filed a motion for Temporary

Restraining Order and Preliminary Injunction, seeking to compel the CDOC to

return to him documents that were confiscated from his cell, to return to him all

other authorized property allegedly taken from him, to reinstate his legal copying

privileges, and to refrain from harassing him. The district court concluded that he

had failed to meet any of the criteria for injunctive relief. Discerning no abuse of

discretion, we affirm for substantially the reasons stated by the magistrate judge

in her report and recommendation.

      7. Request for Counsel

      Finally, Whitington complains that the district court improperly denied him

appointment of counsel. We review the denial of a motion for appointment of

counsel in a civil case for abuse of discretion. See Rucks v. Boergermann,

57 F.3d 978, 979 (10th Cir. 1995). “The burden is upon the applicant to convince

                                        -15-
the court that there is sufficient merit to his claim to warrant the appointment of

counsel.” McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)

(per curiam). We discern no abuse of discretion in the district court’s denial of

appointment of counsel, and hence affirm.

                                  CONCLUSION

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Harris L Hartz
                                                     Circuit Judge




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