* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would notmaterially 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 o ral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 16 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONNELL JOSEPH,

Plaintiff-Appellant, No. 00-1208

v. D. Colo. UNITED STATES FEDERAL BUREAU OF PRISONS, DWAYNE ROBERT ROBERSON, JUANITA ANTONIA MCCULLEY,

Defendants-Appellees. (D.C. No. 98-M-2068)

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-2-

grouped into four categories: (1) He was sexually harassed by Defendant Juanita McCulley, a secretary in the education department w here 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. Jo seph by (a) terminating him from his job in the education department, (b) remov ing 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 dis trict court abused its discretion when it refused to allow Mr. Joseph to amend his co mplaint; and (4) the district court abused its discretion when it refused to appo int counsel for Mr. Joseph. In his report and recommendation, the magistrate ju dge determined that the Bureau of Prisons was immune from suit, as were the individual Defendants in their official capacities. The magistrate judge th erefore recommended that the claims against the Bureau of Prisons and the indivi dual 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 re commended that the claims against the individual Defendants in their individu al capacities be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief.-3- 

### I. DISCUSSION We review de novo a district court’s dismissal purs uant 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 re view 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 breast s to him. “As a threshold matter of law, we must first decide whether [Mr. Jo seph] could have suffered, at the hands of corrections officials, any deprivationof his constitutional rights under the due process clause of the Fourteenth Amen dment 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 constitutiona l 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-4-

abuse of an inmate by a corrections officer can nev er serve a legitimate penological purpose and may well result in severe p hysical and psychological harm, such abuse can, in certain circumstances, con stitute 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 Whit ley 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 matte r, 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 i nstances of sexual harassment were not “objectively, sufficiently seri ous” 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 als o , 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 Ei ghth Amendment rights, but ultimately holding that the circumstances alleged b y the plaintiff were not “severe-5-

enough to be objectively, sufficiently serious”) (i nternal quotation marks omitted). In addition, there is no evidence of del iberate 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 violatedthe Eighth Amendment, the claim is insufficient to implicate the Eighth Amend ment.

B. Retaliation With respect to plaintiff's retaliation claims, Mr. Joseph must demonstrate that the various disciplinary actions were taken be cause 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 escape es, sexual deviants, and sexual stalkers violated his Fifth Amendment rights to equ al 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 o f confinement by ensuring [that] inmates receive the basic necessiti es of adequate food,-6-

clothing, shelter, and medical care and by taking r easonable 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 d eprivation be sufficiently serious. . . . [J]ail conditions may b e restrictive and even harsh without violating constitutional rights. Inde ed, 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 in quiry turns not only on the severity of the alleged deprivations, but al so on their duration. Id. at 495 (internal quotation marks and citations omi tted).

1. Loss of Job and Expulsion from the GED Program As to Mr. Joseph’s loss of his job and expulsion fr om the GED program, “[p]risoners have no constitutional right to educat ional or vocational opportunities during incarceration.” Wishon v. Gam mon , 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 emp loyment”). Mr. Joseph states no Eighth Amendment claim. As to his equal protection claim, “if the state pro vides educational or vocational opportunities to its prisoners, it canno t 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 Clau se in the prisonconditions context is usually invoked to remedy dis parities in educational,-7-

vocational, and recreational programs offered to ma le 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 s tate a cognizable claim under Lewis v. Casey , 518 U.S. 343 (1996), Mr. Joseph had to demonstrat e 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 anyparticular degree of liberty in prison; thus, changes to an inmate’s pri son 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 se curity classification decision, analogous to a transfer to administrative segregati on resulting from disciplinary violations. See id. Although a state may create liberty interests that are protected by the Due-8-

Process Clause, such interests

will be generally limited to freedom from restraintwhich, while not exceeding the sentence in such an unexpec ted manner as to give rise to protection by the Due Pro cess Clause of its own force, nonetheless imposes atypic al 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). Mo reover, our review of the record fails to reveal the impositionof the “atypical and significant hardship” contemplated by Sandinor procedural irregularities leading to his classification on red-card status placement in admi nistrative segregation. Under these circumstances, there was no violation of Mr. Joseph’s due process rights. Nor were his First Amendment or equal protection ri ghts affected. Mr. Joseph has failed to allege or show harm that he has suffe red by being placed on red-card status or that similarly situated individuals of di fferent 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 denyi ng his motion to appoint counsel. “We review the denial of appointment of c ounsel 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 fact ors the district court should consider include “‘the merits of the litigant’s cla ims, the nature of the factual-9-

issues raised in the claims, the litigant’s abilityto 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 carefu l 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 t o 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 n oted 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 c ourt’s order granting the Defendants’ motion to dismiss and we deny Mr. Josep h’s motion to proceed in forma pauperis. Entered for the Court,

Robert H. Henry Circuit Judge