                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 7 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 STEPHEN JOE HOOVER,

               Plaintiff - Appellant,

 v.

 FRANK KEATING, Governor;
 BEVERLY YOUNG, Board of
 Corrections Employee; MICHAEL                          No. 02-5136
 ROARK; DAVID HENNEKE; JAMES                        No. 01-CV-281-B(J)
 BOYKIN; HUGH REED; RANDY                            (N.D. Oklahoma)
 WRIGHT; ROBERT RAINEY, Board
 of Corrections Members; DEBBIE
 MAHAFFEY, Warden for Oklahoma
 Department of Corrections; SHAWN
 PRICE; JOEL SUTTON; STEVE
 BEARS, Captains for Oklahoma
 Department of Corrections; RANDY
 COOK, Deputy Warden of Oklahoma
 Department of Corrections; MIKE
 JACKSON, Physician for Oklahoma
 Department of Corrections,

               Defendants - Appellees.


                          ORDER AND JUDGMENT            *




      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.



      Stephen J. Hoover, an Oklahoma state prisoner, filed suit against Governor

Frank Keating; Board of Corrections employee Beverly Young; Board of

Corrections members Michael Roark, David Henneke, James Boykin, Hugh Reed,

Randy Wright and Robert Rainey; Warden Debbie Mahaffey; Captains Shawn

Price, Joel Sutton and Steve Bears; Deputy Warden Randy Cook; and Physician

for the Oklahoma Department of Corrections Mike Jackson, alleging violations of

the Americans with Disabilities Act, 42 U.S.C. § 12132, and the Eighth and

Fourteenth Amendments, pursuant to 42 U.S.C. § 1983. The district court granted

summary judgment against Hoover, and Hoover appeals. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                        I

      During Hoover’s incarceration at the Dick Conner Correction Center

(“DCCC”), he received disciplinary citations for disobeying housing assignments

on three occasions: April 18, May 2, and May 16, 2000. In refusing the housing

assignments, Hoover specified that he would not cell with a black inmate. After

hearings held for each incident, Hoover received disciplinary segregation and

fines. Hoover appealed each time, arguing that the cell assignments constituted a

danger to him. He argued that the placement of black inmates with white inmates

                                       -2-
could result in a prison riot. At no time, however, did Hoover provide any details

regarding his prospective cell mates, nor did he identify specific facts that

supported his allegations. Consequently, each of his appeals was denied by both

Warden Mahaffey and Director/Designee Guilfoyle.

       In connection with these incidents, Hoover also filed grievance reports on

April 28 and May 16, requesting dismissal of the misconduct citations and other

relief. He reiterated his assertions that the cell assignments constituted a danger

to him and suggested that any policy that placed black inmates with white inmates

was dangerous. In denying relief on May 9 and June 2, Warden Mahaffey pointed

out that Hoover failed to provide any documentable evidence of security concerns

to justify his refusal to cell with a particular inmate, noted that race would, under

no circumstances, be used as the basis for making housing assignments, and

explained that misconduct citations were not grievable.

       On June 16, Hoover appealed his grievance to Director/Designee Guilfoyle.

In this appeal, Hoover abandoned the argument that interracial housing

assignments posed a danger to his safety and instead claimed that his refusal to

change cells was based on a medical condition under which he could occupy

lower bunks only.   1
                        Based on this medical condition, he argued that he should not


   1
     In his brief, Hoover attaches a statement suggesting that he raised the
disability claim earlier than June 16. This statement, dated June 9 and received in
                                                                      (continued...)

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have been placed in random housing and that the documented evidence of his

condition warranted reversal of his disciplinary citations. In attempting to explain

why this evidence was not previously submitted, Hoover argued that although the

medical condition was noted on his medical jacket on April 5, 2000, he was not

aware of this at the time he was assigned to a random cell on May 2. On June 22,

Director/Designee Guilfoyle denied the appeal on the ground that misconduct

citations are not grievable. On May 10, Hoover was transferred to the Supermax

H-Unit at the Oklahoma State Penitentiary in McAlester, presumably due to his

continued refusal to comply with housing assignments.

       Based on these incidents, Hoover filed suit under 42 U.S.C. § 1983,

alleging violations of his rights under the Eighth and Fourteenth Amendments,

and under 42 U.S.C. § 12132, alleging violations of his rights under the

Americans with Disabilities Act. The district court granted summary judgment to

the defendants, finding that the undisputed facts provided no basis for Hoover’s

claims. Hoover v. Keating , No. 01-CV-281-B(J) (N. D. Okla. Jul. 29, 2002).




   1
    (...continued)
the Administrative Review office on June 15, expresses Hoover’s intent to appeal.
(Appellant’s Br., Att. A, p.3.) It remains unclear whether this document sought to
appeal the denial of Hoover’s grievance, or to appeal the affirmation of one of his
misconduct citations. Even if we credit the reliability of the document, which
does not appear in the record, it shows only that the defendants had notice of
Hoover’s disability as early as June 9.

                                         -4-
                                             II

       We review the district court’s grant of summary judgment de novo.      Wolf v.

Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment is

appropriate when there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law.    Id. Because Mr. Hoover

proceeds pro se, we must liberally construe his pleadings.    McBride v. Deer , 240

F.3d 1287, 1289 (10th Cir. 2001).



                                             A

       Hoover argues that his refusals to obey housing orders were justified by his

medical condition and that the issuance of misconduct citations on the basis of

these refusals violated his rights under the Americans with Disabilities Act

(“ADA”). Title II of the ADA provides:

       Subject to the provisions of this subchapter, no qualified individual
       with a disability shall, by reason of such disability, be excluded from
       participation in or be denied the benefits of the services, programs,
       or activities of a public entity, or be subjected to discrimination by
       any such entity.

42 U.S.C. § 12132. In support of his claim, Hoover points to his Health

Summary, signed by Dr. Mike Jackson on April 5, 2000, recommending Hoover

be assigned to a lower bunk only. Hoover cites no evidence, however, suggesting

that defendants’ conduct in imposing the housing assignment or in disciplining


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him for his disobedience to orders was motivated by this alleged disability. In

fact, it was not until after these incidents occurred that Hoover learned about the

Health Summary recommendation and brought it to defendants’ attention.

Although the recommendation appeared in Hoover’s medical jacket as early as

April 5, we are reluctant to conclude defendants had knowledge of it until Hoover

brought it to their attention. Hoover presents no evidence that the defendants had

reason to know about his disability, much less that their conduct was motivated

“by reason of [his] disability.”   Rather, the evidence indicates that Hoover’s

refusal to obey orders was based on the race of his newly assigned cell mate, and

that he provided no evidence that this constituted a specific security risk to him.

Under prison policy, race does not justify a refusal to obey housing assignments,

see Inmate Housing Policy , D.O.C. OP-030102, Pt. I (B) (“Under no

circumstances will race, color, or ethnic origin be the sole basis for making

housing assignments.”), and any refusals based on alleged security risks must be

supported by documented evidence,       id. at Pt. V (A) (“If an inmate refuses a

housing/cell assignment for no documentable reason of safety, security or health .

. . an offense report may be prepared.”). Consequently, defendants’ decision to

discipline Hoover for his conduct was proper and did not violate the ADA.




                                           -6-
                                             B

       In addition to the ADA claim, Hoover presents several due process claims.

First, he argues that defendants’ failure to review his housing assignment, in

alleged violation of Department of Corrections policy, deprived him of due

process. The policy he cites states: “Circumstances which       may warrant a review

of housing assignment status      may include, but not be limited to, the following:

. . . (b) An inmate is convicted of a disciplinary offense that through investigation

is determined to be racially motivated.” D.O.C. OP-030102, Pt. IV (A)(1)(b)

(emphasis added). Even if this court concluded that a prison’s violation of its

own stated policies and procedures violates due process, an issue we need not

reach here, the permissive language of the cited provision demonstrates that

housing assignment reviews are not guaranteed. Consequently, there is no basis

for Hoover’s contention that the defendants’ failure to review the housing

assignment constituted a due process violation.

       Second, Hoover argues that his assignment to random housing rather than

restrictive housing, in alleged violation of prison policies, deprived him of due

process. The Department of Corrections Policy states: “An inmate must accept a

housing assignment unless it is determined that documentable safety, security or

health condition [sic] exists.”    Id. at Pt. V (B)(2). In his grievance appeal dated

June 16, he cited this provision and underlined “documentable” and “health.”


                                            -7-
Presumably, he interprets this provision to justify his conduct on the three

occasions, and consequently, to prohibit prison administrators from disciplining

this conduct. Nevertheless, even if we agreed that this provision affirmatively

permits inmates to refuse housing assignments on the basis of a health condition

and prohibits prison administrators from punishing inmates for such refusals, this

argument would not assist Hoover. As discussed earlier, the evidence shows that

his refusals were motivated not by his health condition, but rather by his dislike

for his cell mates. Moreover, even if his refusals were motivated by his health

condition requiring a bottom bunk, there is no evidence that the housing

assignments required him to occupy a top bunk on any of the three occasions.

Consequently, Hoover’s conduct was not justified, and the defendants acted

properly in disciplining him.

       Third, Hoover argues that the disciplinary proceedings violated his

procedural due process rights. Under   Mitchell v. Maynard , 80 F.3d 1433, 1445

(10th Cir. 1996), we held that prison disciplinary proceedings satisfy procedural

due process requirements as long as advance written notice of the charges are

provided, the inmate is given an opportunity to call witnesses and present

evidence, and a written statement of the evidence relied on and the reasons for the

disciplinary action are provided. Hoover received advanced written notice of

each of the disciplinary charges, an opportunity to call witnesses and present


                                         -8-
documentary evidence in his defense, and a written statement explaining the

decisions. Consequently, the requirements of procedural due process have been

satisfied and we affirm the district court’s dismissal of Hoover’s due process

claims.

                                         C

      Finally, Hoover alleges that the defendants’ actions constituted cruel and

unusual punishment in violation of the Eighth Amendment. In      Farmer v.

Brennan , 511 U.S. 825, 834 (1994), the Supreme Court articulated the standard

for determining when prison conditions constitute cruel and unusual punishment

in violation of the Eighth Amendment:

      First, the deprivation alleged must be, objectively, sufficiently
      serious; a prison official’s act or omission must result in the denial of
      the minimal civilized measure of life’s necessities. . . . The second
      requirement follows from the principle that only the unnecessary and
      wanton infliction of pain implicates the Eighth Amendment. To
      violate the Cruel and Unusual Punishments Clause, a prison official
      must have a sufficiently culpable state of mind. In prison-conditions
      cases that state of mind is one of deliberate indifference to inmate
      health of safety.

Id. (quotation omitted). Hoover’s Eighth Amendment charge, liberally construed,

may be interpreted to challenge three actions by the prison administrators: (1) the

insistence that he accept the housing assignment notwithstanding his health

condition; (2) the insistence that he accept the housing assignment




                                         -9-
notwithstanding the potential danger posed by the prospective cell mate; and (3)

the order to transfer Hoover to the higher security prison.

       As to the first allegation, even if we accepted the proposition that housing

assignments that ignore an inmate’s health condition constitute sufficiently

serious deprivations , Hoover has presented no evidence that the defendants

possessed the requisite state of mind of deliberate indifference. The facts do not

indicate that the defendants were aware of Hoover’s health condition until he

brought it to their attention well after the housing assignments were imposed.

Therefore, he cannot show that defendants acted with a deliberate indifference to

his health.

       As to the second allegation, Hoover presents no evidence suggesting that

placing him with the prospective cell mates posed a substantial risk of serious

harm. Even if each placement posed a security risk, Hoover presents no evidence

that the defendants were aware of any such risk beyond Hoover’s broad assertions

that a “prison riot” could ensue if inmates of different races continued to be

celled together, and he offers no evidence that defendants were deliberately

indifferent to such a risk.

       Hoover’s third challenge—that his removal to a higher security prison

violated his Eighth Amendment rights—may be better understood as a due process

claim, because there is no ground to assert that the transfer constituted a serious


                                         -10-
deprivation or that it occurred with deliberate indifference to Hoover’s safety.

Nevertheless, even under a due-process-clause analysis, this claim must fail.

Under Olim v. Wakinekona , 461 U.S. 238, 245 (1983), an inmate has no

justifiable expectation that he will be incarcerated in any particular prison. In

Meachum v. Fano , 427 U.S. 215, 224–25 (1976), the Supreme Court stated:

      The Constitution . . . does [not] guarantee that a convicted prisoner
      will be placed in any particular prison . . . . The conviction has
      sufficiently extinguished the defendant’s liberty interest to empower
      the State to confine him in Any Of [sic] its prisons. . . . That life in
      one prison is much more disagreeable than in another does not in
      itself signify that a Fourteenth Amendment liberty interest is
      implicated when a prisoner is transferred to the institution with the
      more severe rules.

Id. Thus, Hoover’s transfer does not raise a due process concern.

                                         III

      Because we conclude that defendants did not violate Hoover’s rights, we do

not address defendants’ claims of immunity. The judgment of the district court is

AFFIRMED.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT


                                        Carlos F. Lucero
                                        Circuit Judge




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