                                                                  FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                           September 22, 2011
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                              Clerk of Court
                         FOR THE TENTH CIRCUIT


TIMOTHY J. BURCH,

             Plaintiff-Appellant,

v.                                                     No. 11-3018
                                           (D.C. No. 5:07-CV-03236-JAR-KGS)
DON JORDAN, Secretary, Kansas                            (D. Kan.)
Department of Social and
Rehabilitation Services, in his official
and individual capacity; MARK E.
SCHUTTER, Doctor, Superintendent,
Larned State Hospital, in his official
and individual capacity; AUSTIN
DESLAURIERS, Doctor, Program
Clinical Director, Kansas Sexual
Predator Treatment Program, Larned
State Hospital, in his official and
individual capacity; LEO HERMAN,
Doctor, Program Administrative
Director, Kansas Sexual Predator
Treatment Program, Larned State
Hospital, in his official and individual
capacity; MAYDA NEL STRONG,
Doctor, Supervising Psychologist,
Kansas Sexual Predator Treatment
Program, in her official and individual
capacity; STACY PAIGE, Acting
Director, Osawatomie Transitional
House Services, Osawatomie State
Hospital, in her official and individual
capacity; KERI APPLEQUIST,
Primary Therapist, Kansas Sexual
Predator Treatment Program, in her
official and individual capacity;
SANDRA GRAY, Clinical Social
Work Supervisor, Kansas Sexual
Predator Treatment Program, in her
official and individual capacity;
DENNIS SMITH, Primary Therapist,
Kansas Sexual Predator Treatment
Program, in his official and individual
capacity; BROOK THOMPSON,
Primary Activity Therapist II, Kansas
Sexual Predator Treatment Program, in
her official and individual capacity;
CORY TURNER, Primary
Psycho-Educational Supervisor,
Kansas Sexual Predator Treatment
Program, in his official and individual
capacity; LANCE HAGERMAN,
Primary Activity Therapist I, Kansas
Sexual Predator Treatment Program, in
his official and individual capacity;
JOHN DOE, officials, agencies or
entities, including, but not limited to,
any and all Counselors or Treatment
Team, Clinical Team and Leadership
Team, or Clinical Psychologists or
Psychiatrists who aid, abet, assist,
and/or work for the Kansas SPTP;
JANE DOE, Mail Clerk, officials,
agencies or entities, including, but not
limited to, any and all Counselors or
Treatment Team, Clinical Team and
Leadership Team, or Clinical
Psychologists or Psychiatrists who aid,
abet, assist, and/or work for the
Kansas SPTP; ROBERT E.
CONNELL, Doctor, Acting
Superintendent, Larned State Hospital,
in his official and individual capacity;
LEE FLAMIK, Program
Administrative Director, Kansas
Sexual Predator Treatment Program, in
his official and individual capacity;
MATTHEW BROUS, Program
Consultant, Kansas Sexual Predator


                                           -2-
    Treatment Program, in his official and
    individual capacity; PENNY RIEDEL,
    Activity Therapist II, Kansas Sexual
    Predator Program, in her official and
    individual capacity,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.


         The Kansas Sexually Violent Predator Act, Kan. Stat. Ann. §§ 59-29a01 to

59-29a22 (“KSVPA”), provides that individuals adjudged to be sexually violent

predators due to a mental abnormality or personality disorder

         shall be committed to the custody of the secretary of social and
         rehabilitation services for control, care and treatment until such time
         as the person’s mental abnormality or personality disorder has so
         changed that the person is safe to be at large. Such control, care and
         treatment shall be provided at a facility operated by the department
         of social and rehabilitation services.

Kan. Stat. Ann. § 59-29a07(a).




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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.

                                             -3-
      Appellant Timothy J. Burch is a sexually violent predator committed to the

Sexual Predator Treatment Program (“SPTP”) at Larned State Hospital. He and

other Larned residents initiated this action under 42 U.S.C. § 1983 to challenge

the adequacy of the SPTP provided at Larned. The other residents voluntarily

dismissed their claims, but Mr. Burch filed an amended complaint, insisting the

SPTP is inadequate to treat his condition and provide a realistic opportunity for

his release. 1 Ancillary to that claim, Mr. Burch alleged that defendants have

improperly punished him by, among other things, interfering with his educational

endeavors, revoking his work privileges, and reducing his treatment classification

level through manipulation of his treatment progress scores (known as

criminogenic assessment scores). He also protested the confiscation of various

personal effects and the limited resources available in his law library.

      Defendants moved to dismiss the action, but Mr. Burch moved to strike the

motion as untimely under the district court’s scheduling order. The court refused

to strike the motion to dismiss, explaining that it was not subject to strike under

Fed. R. Civ. P. 12(f), and appeared to be within the deadline for filing dispositive

motions in any event. The court also noted that Mr. Burch was not prejudiced

because he had already negotiated an extension of time to respond to the motion.



1
       Mr. Burch proceeds pro se, as he did in the district court. We construe his
pro se materials liberally, but “we do not assume the role of [his] advocate.”
Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009) (quotation omitted).

                                         -4-
      Having failed to convince the court to strike the motion to dismiss,

Mr. Burch moved for appointment of counsel. Without ruling on his request,

however, the court dismissed the action with prejudice. In a fifty-two page

opinion, the court analyzed Mr. Burch’s allegations, distilled his claims, and

concluded he was not entitled to relief. As is relevant to this appeal, the court

determined that most of Mr. Burch’s claims failed to adequately allege

defendants’ personal participation in the claimed misconduct. See Gallagher v.

Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (“Individual liability under § 1983

must be based on personal involvement in the alleged constitutional violation.”

(quotation omitted)).

      As for the rest of his claims, the court discussed the unique principles and

standards governing the KSVPA and concluded that Mr. Burch failed to state a

cognizable claim for relief. Regarding the claims of inadequate treatment, the

court ruled that Mr. Burch enjoyed no substantive due process right to treatment

culminating in his release. See Kansas v. Hendricks, 521 U.S. 346, 366 (1997)

(“[W]e have never held that the Constitution prevents a State from civilly

detaining those for whom no treatment is available, but who nevertheless pose a

danger to others.”). Nor did he sufficiently allege, ruled the court, that

defendants deviated from their presumptively valid professional judgments in

treating him. See Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (“[L]iability

may be imposed only when the decision by the professional is such a substantial

                                          -5-
departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible actually did not base the decision on such

a judgment.”). Although Mr. Burch claimed that defendants falsified his

criminogenics scores to alter his treatment classification level and forestall his

release, the court recognized there were no facts indicating the scores were the

product of malicious or retaliatory intent rather than a presumptively valid

professional judgment. And, since Mr. Burch possessed no liberty interest in his

classification level, see Williams v. DesLauriers, 172 P.3d 42, 48 (Kan. Ct. App.

2007); cf. Cardoso v. Calbone, 490 F.3d 1194, 1198 (10th Cir. 2007) (recognizing

that discretionary adjustment of inmate classification level does not implicate

protected liberty interests), the court concluded he failed to state a claim.

      Additionally, the court found no constitutional violation stemming from the

interruption of Mr. Burch’s educational and vocational activities, which the court

recognized as mere privileges subject to retraction as necessitated by the SPTP.

See Sandin v. Conner, 515 U.S. 472, 484-85 (1995). Likewise, Mr. Burch failed

to state a claim based on the confiscation of his personal effects, specifically a

shopping catalogue depicting children and a movie containing nudity and sexual

themes, because the SPTP has legitimate institutional and therapeutic interests in

banning such material. See Jones v. Salt Lake County, 503 F.3d 1147, 1155-56

(10th Cir. 2007). Finally, regarding his claim that the law library provided

inadequate resources, the court construed Mr. Burch’s allegations as a Sixth

                                          -6-
Amendment claim for lack of access to the courts. But because he alleged no

prejudice as a result of being hindered from pursuing litigation, the court

determined that he failed to state a claim. See Trujillo v. Williams, 465 F.3d

1210, 1226 (10th Cir. 2006). Accordingly, the court concluded that absent a

violation of any clearly established federal right, defendants were entitled to

qualified immunity.

      On appeal, Mr. Burch contends the district court erred in 1) denying his

request to strike the motion to dismiss; 2) failing to rule on his request for

counsel; 3) granting the motion to dismiss; and 4) granting defendants qualified

immunity based on the failure to state a claim.

      We review the district court’s decisions on the motions to strike and

appoint counsel for an abuse of discretion. See Rucks v. Boergermann, 57 F.3d

978, 979 (10th Cir. 1995) (appointment of counsel); Durham v. Xerox Corp.,

18 F.3d 836, 840 (10th Cir. 1994) (strike). A dismissal for failure to state a claim

is reviewed de novo, see Cohen v. Longshore, 621 F.3d 1311, 1315 (10th Cir.

2010), as is a grant of qualified immunity, which may be based on the failure to

state a claim, see, e.g., Peterson v. Jensen, 371 F.3d 1199, 1201-02 (10th Cir.

2004) (reviewing de novo the denial of a Fed. R. Civ. P. 12(b)(6) motion in the

context of qualified immunity).

      We have reviewed the parties’ appellate materials, the record on appeal,

and the relevant legal authority, and we agree with the district court’s thorough

                                          -7-
and well-reasoned order. The court accurately analyzed Mr. Burch’s claims and

correctly determined that he was not entitled to relief. We are also convinced that

even if the court failed to exercise its discretion to appoint counsel, any such

error was harmless given the lack of merit in Mr. Burch’s case, his demonstrated

ability to present it, and the relatively straight-forward nature of his claims. See

Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir. 1983) (holding that

magistrate judge’s failure to rule on motion for appointment of counsel was

harmless given the clear lack of merit in appellant’s case). And, we find no abuse

of discretion in the court’s refusal to strike the motion to dismiss. To the extent

Mr. Burch raises any other issues, we find them to be meritless. 2 Accordingly, we

AFFIRM the district court’s judgment for substantially the same reasons

articulated in the court’s orders denying the motion to strike, dated April 5, 2010,

and granting the motion to dismiss, dated December 22, 2010.


                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge



2
       Mr. Burch suggests he ought to be allowed to again amend his complaint.
The district court noted, however, that he did not seek leave to amend his
complaint, and any attempt to do so would have been futile, given the absence of
additional facts to support his claims. Based on our de novo review of the legal
basis for finding futility, we perceive no abuse of discretion in the court’s denial
of leave to amend. See Cohen, 621 F.3d at 1314.

                                          -8-
