* The case is unanimously ordered submitted without o ral 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 This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### FEB 7 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN JOE HOOVER, Plaintiff - Appellant,

v. FRANK KEATING, Governor; BEVERLY YOUNG, Board of Corrections Employee; MICHAEL ROARK; DAVID HENNEKE; JAMES BOYKIN; HUGH REED; RANDY 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. No. 02-5136 No. 01-CV-281-B(J) (N.D. Oklahoma)

ORDER AND JUDGMENT *-2-

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

Stephen J. Hoover, an Oklahoma state prisoner, file d suit against Governor Frank Keating; Board of Corrections employee Beverl y Young; Board of Corrections members Michael Roark, David Henneke, J ames Boykin, Hugh Reed, Randy Wright and Robert Rainey; Warden Debbie Mahaf fey; Captains Shawn Price, Joel Sutton and Steve Bears; Deputy Warden R andy Cook; and Physician for the Oklahoma Department of Corrections Mike Jac kson, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12 132, 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 Co rrection Center (“DCCC”), he received disciplinary citations for di sobeying housing assignments on three occasions: April 18, May 2, and May 16, 2 000. In refusing the housing assignments, Hoover specified that he would not cel l with a black inmate. After hearings held for each incident, Hoover received di sciplinary segregation and fines. Hoover appealed each time, arguing that the cell assignments constituted a danger to him. He argued that the placement of bla ck inmates with white inmates1 In his brief, Hoover attaches a statement suggest ing that he raised the

disability claim earlier than June 16. This statem ent, dated June 9 and received in (continued...) -3- could result in a prison riot. At no time, however , did Hoover provide any details regarding his prospective cell mates, nor did he id entify specific facts that supported his allegations. Consequently, each of h is appeals was denied by both Warden Mahaffey and Director/Designee Guilfoyle. In connection with these incidents, Hoover also fil ed grievance reports on April 28 and May 16, requesting dismissal of the mi sconduct citations and other relief. He reiterated his assertions that the cell assignments constituted a danger to him and suggested that any policy that placed bl ack 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 in mate, noted that race would, under no circumstances, be used as the basis for making h ousing assignments, and explained that misconduct citations were not grieva ble. On June 16, Hoover appealed his grievance to Direct or/Designee Guilfoyle. In this appeal, Hoover abandoned the argument that interracial housing assignments posed a danger to his safety and instea d claimed that his refusal to change cells was based on a medical condition underwhich he could occupy lower bunks only. 1 Based on this medical condition, he argued that h e should not1 (...continued)

the Administrative Review office on June 15, expres ses Hoover’s intent to appeal. (Appellant’s Br., Att. A, p.3.) It remains unclearwhether this document sought to appeal the denial of Hoover’s grievance, or to appe al the affirmation of one of his misconduct citations. Even if we credit the reliab ility of the document, which does not appear in the record, it shows only that t he defendants had notice of Hoover’s disability as early as June 9. -4- have been placed in random housing and that the doc umented evidence of his condition warranted reversal of his disciplinary ci tations. In attempting to explain why this evidence was not previously submitted, Hoo ver argued that although the medical condition was noted on his medical jacket o n April 5, 2000, he was not aware of this at the time he was assigned to a rand om cell on May 2. On June 22, Director/Designee Guilfoyle denied the appeal on th e ground that misconduct citations are not grievable. On May 10, Hoover was transferred to the Supermax H-Unit at the Oklahoma State Penitentiary in McAles ter, presumably due to his continued refusal to comply with housing assignment s. Based on these incidents, Hoover filed suit under 4 2 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 p rovided no basis for Hoover’s claims. Hoover v. Keating , No. 01-CV-281-B(J) (N. D. Okla. Jul. 29, 2002).-5- 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 judgm ent 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 ord ers were justified by his medical condition and that the issuance of miscondu ct citations on the basis of these refusals violated his rights under the Americ ans with Disabilities Act (“ADA”). Title II of the ADA provides: Subject to the provisions of this subchapter, no qu alified individual with a disability shall, by reason of such disabili ty, be excluded from participation in or be denied the benefits of the s ervices, programs, or activities of a public entity, or be subjected t o discrimination by any such entity. 42 U.S.C. § 12132. In support of his claim, Hooverpoints to his Health Summary, signed by Dr. Mike Jackson on April 5, 200 0, recommending Hoover be assigned to a lower bunk only. Hoover cites no evidence, however, suggesting that defendants’ conduct in imposing the housing as signment or in disciplining-6-

him for his disobedience to orders was motivated bythis alleged disability. In fact, it was not until after these incidents occurr ed that Hoover learned about the Health Summary recommendation and brought it to def endants’ attention. Although the recommendation appeared in Hoover’s me dical jacket as early as April 5, we are reluctant to conclude defendants ha d 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 thattheir 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 refusa l 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 a lleged 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.”). Conseque ntly, defendants’ decision to discipline Hoover for his conduct was proper and di d not violate the ADA.-7- B In addition to the ADA claim, Hoover presents sever al due process claims. First, he argues that defendants’ failure to review his housing assignment, in alleged violation of Department of Corrections poli cy, 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 pro cess, an issue we need not reach here, the permissive language of the cited pr ovision demonstrates that housing assignment reviews are not guaranteed. Con sequently, there is no basis for Hoover’s contention that the defendants’ failur e to review the housing assignment constituted a due process violation. Second, Hoover argues that his assignment to randomhousing rather than restrictive housing, in alleged violation of prison policies, deprived him of due process. The Department of Corrections Policy stat es: “An inmate must accept a housing assignment unless it is determined that doc umentable 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 “do cumentable” and “health.”-8-

Presumably, he interprets this provision to justifyhis conduct on the three occasions, and consequently, to prohibit prison adm inistrators from disciplining this conduct. Nevertheless, even if we agreed thatthis provision affirmatively permits inmates to refuse housing assignments on th e basis of a health condition and prohibits prison administrators from punishing inmates for such refusals, this argument would not assist Hoover. As discussed ear lier, the evidence shows that his refusals were motivated not by his health condi tion, 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 evid ence that the housing assignments required him to occupy a top bunk on any of the three occasions. Consequently, Hoover’s conduct was not justified, a nd the defendants acted properly in disciplining him. Third, Hoover argues that the disciplinary proceedi ngs 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 cal l witnesses and present evidence, and a written statement of the evidence r elied 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-9-

documentary evidence in his defense, and a written statement explaining the decisions. Consequently, the requirements of proce dural due process have been satisfied and we affirm the district court’s dismis sal of Hoover’s due process claims.
C Finally, Hoover alleges that the defendants’ action s constituted cruel and unusual punishment in violation of the Eighth Amendment. In Farmer v.
Brennan , 511 U.S. 825, 834 (1994), the Supreme Court artic ulated the standard for determining when prison conditions constitute c ruel 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 r esult in the denial of the minimal civilized measure of life’s necessities . . . . The second requirement follows from the principle that only th e unnecessary and wanton infliction of pain implicates the Eighth Ame ndment. To violate the Cruel and Unusual Punishments Clause, aprison official must have a sufficiently culpable state of mind. I n prison-conditions cases that state of mind is one of deliberate indif ference to inmate health of safety. Id. (quotation omitted). Hoover’s Eighth Amendment c harge, liberally construed, may be interpreted to challenge three actions by th e prison administrators: (1) the insistence that he accept the housing assignment no twithstanding his health condition; (2) the insistence that he accept the ho using assignment-10-

notwithstanding the potential danger posed by the p rospective 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 conditio n constitute sufficiently serious deprivations , Hoover has presented no evidence that the defend ants 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 housin g assignments were imposed. Therefore, he cannot show that defendants acted wit h a deliberate indifference to his health. As to the second allegation, Hoover presents no evi dence suggesting that placing him with the prospective cell mates posed asubstantial 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 bey ond Hoover’s broad assertions that a “prison riot” could ensue if inmates of diff erent races continued to be celled together, and he offers no evidence that def endants were deliberately indifferent to such a risk. Hoover’s third challenge—that his removal to a high er security prison violated his Eighth Amendment rights—may be better understood as a due process claim, because there is no ground to assert that th e transfer constituted a serious-11-

deprivation or that it occurred with deliberate ind ifference to Hoover’s safety. Nevertheless, even under a due-process-clause analy sis, this claim must fail. Under Olim v. Wakinekona , 461 U.S. 238, 245 (1983), an inmate has no justifiable expectation that he will be incarcerate d in any particular prison. In Meachum v. Fano , 427 U.S. 215, 224–25 (1976), the Supreme Court st ated: The Constitution . . . does [not] guarantee that a convicted prisoner will be placed in any particular prison . . . . Th e conviction has sufficiently extinguished the defendant’s liberty i nterest to empower the State to confine him in Any Of [sic] its prison s. . . . That life in one prison is much more disagreeable than in anothe r does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the in stitution with the more severe rules. Id. Thus, Hoover’s transfer does not raise a due proc ess concern. III Because we conclude that defendants did not violate Hoover’s rights, we do not address defendants’ claims of immunity. The ju dgment of the district court is
AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge