* This order and judgment is not binding precedent, e xcept under the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

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

### MAY 25 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DAVID DANIEL,

Plaintiff-Appellant,

v. TED MERRITT; STEVE SPELLMAN; MIKE MAXEY; DAVE BRALEY,

Defendants-Appellees. No. 99-6281 (D.C. No. 97-CV-570) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Mr. Daniel’s suit against Ted Merritt and Steve Spe llman was dismissed by

stipulation after settlement. -2- David Daniel, appearing pro se , appeals from the district court’s order granting Mike Maxey’s and Dave Braley’s [hereinafter “defendants”] 1 motions to dismiss and for summary judgment on his state prisoner civil rights action brought pursuant to 42 U.S.C. § 1983. Our jurisdic tion arises under 28 U.S.C. § 1291, and we affirm. We review a dismissal under Fed. R. Civ. P. 12(b)(6 ) for failure to state a claim de novo , accepting the facts pleaded as true. See Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). We will uphold a Rule 12(b)(6) dismissal only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of h is claim which would entitle him to relief.” Id. (quotation omitted). We also review the grant of summary judgment de novo , applying the same legal standard used by the distri ct court pursuant to Fed.R.Civ.P. 56(c). Summary judgment is appropr iate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law. When applying this st andard, we examine the factual record and reasonable inference s therefrom in the light most favorable to the party opposing summ ary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly appl ied by the district court.-3-

Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted).

Background The relevant facts are not disputed. Mr. Daniel wa s serving a state sentence for escape from a penal institution in 199 4 when he was released to live and work in the community pursuant to the Oklahoma Pre-Parole Conditional Supervision Program (PPCS). In February 1995, he w as charged with two counts of possession of a controlled dangerous substance and possession of drug paraphernalia, which ultimately resulted in his reclassification. See R. Vol. I Doc. 36, at 2-3. In March 1995, however, he was re leased on bail pending resolution of the drug charges and allowed to return to PPCS status. See id. at 3. On April 11, 1995, he was formally removed from the PPCS program, arrested by defendants Ted Merritt and Steve Spellman, and retu rned to prison. Mr. Merritt and Mr. Spellman alleged that he attempted to escap e by unbuckling his seatbelt during this transport to jail, and a new criminal c harge for attempted escape was filed. See id. at 4. This charge was later dismissed by the stat e district attorney. Mr. Daniel was convicted of the drug charges that l ead to his removal from PPCS. He subsequently filed this suit.-4- Discussion In his complaint, Mr. Daniel alleges that defendant s violated his constitutional rights when, as administrators for the Oklahoma Department of Corrections (DOC), they (1) did not provide him a h earing before removing him from the PPCS; (2) knew of and approved his false arrest, false imprisonment, and malicious prosecution by Mr. Merritt and Mr. Sp ellman; and (3) conspired with Mr. Merritt and Mr. Spellman to use DOC discip linary procedures and false charges to harass and intimidate him. 1. Qualified immunity . The district court granted defendants’ motion to dismiss Mr. Daniel’s PPCS claim on the basis of qua lified immunity because “[t]he law governing federal due process rights of PPCS inmates was not clearly established in this sense until August 30, 1995, wh en the Tenth Circuit decided Harper v. Young , 64 F.3d 563 (10th Cir. 1995), aff’d sub nom., Young v. Harper , 117 S. Ct. 1148 (1997).” R. Vol I. Doc. 42, at 4. On appeal, Mr. Daniel argues that the law regarding removal of inmates from PPCS was clearly established in Morrissey v. Brewer , 408 U.S. 471 (1972), and Gagnon v. Scarpelli , 411 U.S. 778 (1973). We disagree. In Morrissey and Gagnon , the Court held that individuals on parole or probation are entitled to due process hearings under the Fourteenth Amendment when either parole or probation are revoked. See Morrissey , 408 U.S. at 483; Gagnon , 411 U.S. at 782. PPCS is “ a penal status similar to,-5-

although more restrictive than, parole that allows convicts to live and work in society.” Harper , 64 F.3d at 564. At the time of defendants’ alleg ed acts, the Oklahoma Court of Criminal Appeals in Barnett v. Moon , 852 P.2d 161 (Okla. Crim. App. 1993), and Harper v. Young , 852 P.2d 164 (Okla. Crim. App. 1993) [hereinafter designated as Harper I ], had held that removal from PPCS impinged only upon an inmate’s interest in his “deg ree of confinement,” which is an interest to which the procedural protections set out in Morrissey did not attach. See Harper I , 852 P.2d at 165. In our Harper decision, we disagreed with that conclusion and, for the first time, appli ed the due process requirements outlined in Morrissey and Gagnon to participation in PPCS. See 64 F.3d at 566. Therefore, at the time of Mr. Daniel’s removal fromPPCS, such removal without a hearing was not a clearly established constitutio nal deprivation. We affirm summary judgment in favor of defendants on this cla im. 2. False arrest and imprisonment . Mr. Daniel’s claim for false arrest and imprisonment is related solely to Mr. Merritt’s and Mr. Spellman’s allegations that he tried to escape during transport. The district court correctly dismissed the causes of action for false arrest andimprisonment against defendants because Mr. Daniel “neither alleges nor shows any personal involvement in this matter by defendants.” R. Vol. I Doc 42, at 5.-6-

3. Malicious prosecution . The district attorney dismissed the criminal prosecution for attempted escape on grounds that itwould “‘best meet the ends of justice’ because ‘prosecuting witnesses [were] no l onger employed by D.O.C.’” Id. at 6. A § 1983 plaintiff claiming malicious prose cution must make an initial showing that the criminal charge related to the mal icious prosecution case was terminated in his favor. See Neely v. First State Bank , 975 P.2d 435, 437 (Okla. 1998). The district court relied on a Secon d Circuit case holding that dismissal of a criminal charge “in the interests of justice” “‘cannot provide the favorable termination required as the basis for a c laim of malicious prosecution’” under § 1983. R. Vol. I Doc. 42, at 6 (quoting Singer v. Fulton County Sheriff , 63 F.3d 110, 118 (2d Cir. 1995)). On appeal, Mr. Daniel argues that the common law of torts determines the contours of a malicious prosecution claim under § 1983, citing Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996). He argues that criminal proceedings are also terminated in favor of an accu sed by “the formal abandonment of the proceedings by the public prosec utor,” Restatement (Second) of Torts § 659(c), and that he therefore establishe d a termination in his favor sufficient to satisfy a prima facie showing by demo nstrating that the district attorney abandoned the proceedings against him for a reason consistent with his innocence. The State inexplicably failed to brief the issue of favorable2 Although the district court made no alternative fin dings or holdings on this

issue, the magistrate recommended dismissal on the additional ground that defendants were not personally involved in the acts leading to the malicious prosecution claim. See R. Vol. I Doc. 36, at 16. -7- termination other than to postulate that the distri ct court correctly followed Singer

. Even if we were to assume that the proceedings were terminated in Mr. Daniel’s favor, however, we conclude that Mr. Daniel cannot state a § 1983 cause of action for malicious prosecution against d efendants because he can state no facts showing that either defendant was personal ly involved in his prosecution for attempted escape 2

. See Anthony v. Baker , 955 F.2d 1395, 1399 & n.2 (10th Cir. 1992) (stating that action for malicious prosecution “attempts to hold the complaining witness liable for his role in initiating a baseless prose cution” and that “[t]he term ‘complaining witness’ describe s the person (or persons) who actively instigated or encouraged the prosecution o f the plaintiff . . . [,thus p]roof of the defendant’s role in instituting the criminal prosecution of the plaintiff is an essential element of a malicious prosecution claim” ) (emphasis added) (quotation and citation omitted). Although Mr. Daniel alleges on appeal that defendants “knew the escape charge was false yet they did nothing to prevent it,” see Appellant’s Br. at 21, he concedes that defendant M axey actually “threw out the [administrative] misconduct [charge] alleging that Mr. Daniel had tried to attempt3 Mr. Braley was a records officer at the probation o ffice at the time.

See R. Vol. I, Doc. 22 at Attach. I-1. -8- to escape . . . because [Mr. Maxey] did not feel th at unbuckling a seat belt constituted a misconduct for an escape attempt.” See R. Vol. I, Doc. 22, Attach. F-1, 2 (Affidav. of Mike Maxey); Appellant’ s Br. at 21. Mr. Daniel also does not contradict Mr. Maxey’s sworn statement that “Officer Merritt and Officer Spellman took it upon themselves to have an‘Attempted Escape’ charge filed in Canadian County.” R. Vol. I, Doc. 22, Attach. F-2. He further alleges no basis for Mr. Maxey’s authority as an assistant dis trict supervisor of probation/parole to interfere in a probation office r’s decision to file charges in this situation. Mr. Daniel alleges absolutely no facts implicating defendant Braley 3 in the decision to charge Mr. Daniel with attempted escape . We therefore affirm the grant of summary judgment in favor of defendants onthe malicious prosecution charge. See Medina v. City & County of Denver , 960 F.2d 1493, 1495 n.1 (10th Cir. 1992) ( “We are free to affirm a district court decision on any grounds for which there is a record sufficient to permit co nclusions of law, even grounds not relied upon by the district court.”) (quotation omitted)

. 4. Conspiracy . The district court held that the conspiracy clai m against defendants should be dismissed because Mr. Daniel f ailed to state facts showing-9-

defendants’ involvement in the alleged conspiracy. Mr. Daniel’s baseless and conclusory arguments on appeal do not assist his cl aim. The fact that defendants agreed that Mr. Daniel should be returned to prisonfrom the PPCS program after he was charged with illegal possession of drugs doe s not aver an unlawful agreement. Contrary to Mr. Daniel’s claims, there is no evidence that either defendant issued false disciplinary reports, and ne ither defendant engaged in filing the allegedly false attempted escape charge. We affirm the grant of summary judgment on the conspiracy claim. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED

.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge