FILED

United States Court of Appeals

Tenth Circuit

February 9, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FREDERICK D. DEBERRY,

Plaintiff-Appellant,

v.

BLAKE R. DAVIS; J. FOX; D.

SPROUL, 

Defendants-Appellees.

No. 11-1152

(D.C. No. 1:10-CV-00725-CMA-BNB)

(D. Colo.)

ORDER*

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Frederick Deberry is currently incarcerated at the United States

Penitentiary-Administrative Maximum in Florence, Colorado, commonly known

as “Florence ADX” or simply “ADX.” Proceeding pro se,1

 he appeals from the

* This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1

and Tenth Circuit Rule 32.1.

After examining the appellate record, this three-judge panel determined

unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument.

1 Because Mr. Deberry is proceeding pro se, we construe his filings

liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van

(continued...)
district court’s order dismissing his due-process and equal-protection claims

against Federal Bureau of Prison (“BOP”) employees Blake Davis, J. Fox, and D.

Sproul (collectively, “defendants”). We dismiss as moot Mr. Deberry’s claims

insofar as he seeks equitable relief. As for his claims for damages based upon the

purported constitutional violations, we conclude that Mr. Deberry’s appeal is

frivolous. Accordingly, we deny Mr. Deberry’s motion to proceed in forma

pauperis on appeal and dismiss his appeal pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). 

I. BACKGROUND

ADX has a stratified system of housing inmates known as the “step-down

program.” If an inmate meets certain criteria, he is eligible to be removed from

the general prison population (“General Population”) and to progress through

various “units” that feature decreasing levels of restriction: Intermediate (J-Unit),

Transitional (K-Unit), and Pre-Transfer (D/B Unit). An inmate who successfully

progresses through the Pre-Transfer Unit may be transferred out of ADX to

another, less restrictive BOP facility. 

In March 2009, while housed in the Pre-Transfer Unit, Mr. Deberry was

involved in a physical altercation with another prisoner. Pending resolution of his

disciplinary charges, he was removed from the Pre-Transfer Unit and placed back

1

(...continued)

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

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in General Population. Mr. Deberry admitted to being involved in the altercation

but insisted that he acted in self-defense. In April 2009, a Disciplinary Hearing

Officer (“DHO”) found him guilty of “Disruptive Conduct,” but on appeal, the

Regional Director determined that there had been a procedural error in the

disciplinary proceeding and remanded the matter to the DHO. On rehearing, the

DHO set aside his previous finding of guilt and expunged the incident report

against Mr. Deberry. 

Mr. Deberry then asked to be moved back into the step-down program

(specifically, into the Pre-Transfer Unit) and to be given credit for time spent in

General Population. His request was denied. In a memorandum, Mr. Deberry’s

unit manager, Mr. Sproul, acknowledged that the incident report had been

expunged but nevertheless recommended that Mr. Deberry remain in General

Population for at least a year before being placed back in the step-down program. 

Mr. Fox, the associate warden at ADX, summarily approved the recommendation. 

In November 2009, Mr. Deberry was placed back in the step-down

program. However, he was not immediately restored to his previous status in the

Pre-Transfer Unit. Rather, at that time, he was placed in the Intermediate Unit.

In March 2010, Mr. Deberry filed the present lawsuit, claiming violations

of due process, equal protection, and double jeopardy, and seeking declaratory,

injunctive, and monetary relief. The defendants filed a motion to dismiss, and the

magistrate judge, in a thoughtful and reasoned opinion, recommended granting it. 

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The district court issued its own opinion with respect to Mr. Deberry’s claims,

adopting and affirming the magistrate judge’s recommendation, and dismissing

Mr. Deberry’s claims with prejudice. It also denied his request for a temporary

restraining order or a preliminary injunction as moot. Mr. Deberry filed a timely

notice of appeal in April 2011. The district court denied Mr. Deberry leave to

proceed on appeal in forma pauperis, finding that “[his] appeal is not taken in

good faith because [Mr. Deberry] has not shown the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” R., Vol. 1, at 416 (Order Denying Leave to Proceed on Appeal Pursuant

to 28 U.S.C. § 1915 and Fed. R. App. P. 24, dated May 6, 2011). 

Months later, in August 2011, the defendants notified us that Mr. Deberry

has since been transferred back into General Population due to an incident that

occurred on March 27, 2011, in which Mr. Deberry allegedly directed abusive

behavior toward a BOP staff member.2

 The defendants state that this transfer is

“separate and independent of the instant case” because it is “based . . . on new,

distinct facts.” Notice, at 1–2, filed Aug. 19, 2011.

2 By that time, it appears that Mr. Deberry had actually progressed

from the Intermediate Unit to the Pre-Transfer Unit—that is, to the step-down

unit from which he had originally been removed and to which his complaint

requested that he be restored. See Notice, filed Aug. 19, 2011 (Attach. 1, Incident

Report, dated Mar. 27, 2011) (noting that the misconduct leading to Mr.

Deberry’s removal to General Population occurred while he was in the “D-B”

(i.e., Pre-Transfer) Unit).

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II. DISCUSSION

A.

Before reaching the merits of Mr. Deberry’s appeal, we must be satisfied

that we have subject-matter jurisdiction over the dispute. McKissick v. Yuen, 618

F.3d 1177, 1196 (10th Cir. 2010) (“[E]very federal appellate court has a special

obligation to satisfy itself . . . of its own jurisdiction . . . .” (quoting Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)) (internal quotation marks

omitted)). As part of that inquiry, we must ensure that a live case or controversy

remains before us. As the Supreme Court recently reminded, “It is a basic

principle of Article III that a justiciable case or controversy must remain ‘extant

at all stages of review, not merely at the time the complaint is filed.’” United

States v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (quoting Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997)). “[W]hen events outside the

litigation make relief impossible,” a case is moot, Jordan v. Sosa, 654 F.3d 1012,

1023 (10th Cir. 2011) (quoting 13C Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 3533.3.1, at 56 (3d ed.

2008)) (internal quotation marks omitted), and a federal court must dismiss for

lack of subject-matter jurisdiction.

The mootness inquiry requires that we look to the specific relief requested

by a defendant. See id. at 1024 (“Constitutional mootness is grounded in the

requirement that ‘any case or dispute that is presented to a federal court be

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definite, concrete, and amenable to specific relief.’” (emphasis in original)

(quoting 15 James W. Moore & Martin H. Redish, Moore’s Federal Practice §

101.90, at 101–237 (3d ed. 2010))). Here, Mr. Deberry has requested declaratory

relief (a declaration that his due-process and equal-protection rights have been

infringed), injunctive relief (restoration of his prior status in the Pre-Transfer

Unit), and monetary damages. We conclude that the requests for declaratory and

injunctive relief are moot, but that the request for damages is not.

Mr. Deberry’s subsequent transfer back into General Population in March

2011, for reasons independent of this case, moots his request for injunctive relief. 

Even if we were to grant the relief that Mr. Deberry asks for, it would have “no

effect in the real world.” Jordan, 654 F.3d at 1030 (quoting Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010)) (internal quotation marks

omitted). Mr. Deberry would remain in General Population for independent

reasons, and we are not situated to rule on the propriety of that later transfer. The

same holds true for his request for declaratory relief. Because of the subsequent

transfer, any declaratory judgment in Mr. Deberry’s favor would not “affect[] the

behavior of the defendant[s] toward [him]” and would be, for that reason, purely

advisory. Id. at 1025 (quoting Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010)) (internal quotation marks

omitted). It goes without saying that, as a federal court, we are not in the

business of rendering such feckless judgments.

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Nonetheless, a viable controversy remains before us because Mr. Deberry

has requested damages. “[B]y definition claims for past damages cannot be

deemed moot.” Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th Cir. 2006) (alteration

in original) (quoting Taxpayers for the Animas-La Plata Referendum v.

Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1479 (10th Cir. 1984))

(internal quotation marks omitted). Thus, Mr. Deberry’s request “for

compensatory damages remains a live case or controversy on appeal,” and we are

required to turn to the merits of his claims. Id.; see Utah Animal Rights Coal.,

371 F.3d 1248, 1257–58 (10th Cir. 2004) (holding that a request even for

“nominal damages of one dollar” satisfies Article III’s case or controversy

requirement and “require[s]” the court to render a decision “on the merits”).

B.

Mr. Deberry has abandoned the double-jeopardy claim that he urged below,

so two claims remain on appeal: (1) that the defendants violated his proceduraldue-process rights under the Fifth Amendment when they failed to immediately

return him to the Pre-Transfer Unit following expungement of the incident report,

and (2) that those same actions violated his Fifth Amendment right to equal

protection3

 because other similarly situated prisoners were not treated like Mr.

3 The Fourteenth Amendment’s equal-protection guarantee applies to

the federal government through the Fifth Amendment’s Due Process Clause. See

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1152 (10th Cir. 1999) (citing

Schweiker v. Wilson, 450 U.S. 221, 226 & n.6 (1981)).

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Deberry.4

Both the magistrate judge and the district court (hereinafter “the court”)

4 The government contends that Mr. Deberry has not challenged on

appeal the district court’s decision to grant qualified immunity to defendants and,

therefore, that issue is waived. See Aplee. Br. at 20 (“Nor has [Mr. Deberry]

made any argument opposing the granting of qualified immunity to the

Defendants. Consequently, these issues have been waived.”). In this regard, the

government cites some of our cases that have concluded that a litigant waives an

issue by not adequately presenting it in his opening brief. See id. (citing, for

example, Herra-Castillo v. Holder, 573 F.3d 1004, 1010 (10th Cir. 2009)). We

think, however, that the government’s waiver argument is misguided. In

addressing the qualified-immunity issue, the magistrate judge set forth the two

elements of the qualified-immunity test. Specifically, the magistrate judge stated,

“When analyzing the issue of qualified immunity, I consider two factors. I must

determine whether the plaintiff has sufficiently alleged a violation of a statutory

or constitutional right. In addition, I must inquire whether the right was clearly

established at the time of the violation.” R., Vol. 1, at 264. As the magistrate

judge was legally authorized to do, see, e.g., Pearson v. Callahan, 555 U.S. 223,

236 (2009) (“The judges of the district courts and the courts of appeals should be

permitted to exercise their sound discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.”), he resolved the qualifiedimmunity issue by addressing solely the first inquiry—relating to the existence of

a constitutional violation vel non—determining that Mr. Deberry had not

established that his constitutional rights were violated. In other words, the

magistrate judge permissibly elided the second inquiry, which focuses on

whether, even assuming the Constitution was violated, defendants would be

entitled to qualified immunity because the law was not clearly established at the

time of the purported violations. The district court adopted the magistrate judge’s

constitutional analysis. On appeal, Mr. Deberry vigorously contends that his

constitutional due-process and equal-protection rights were violated and that the

district court erred in holding to the contrary. By doing so, Mr. Deberry in fact

has challenged the only element of the qualified-immunity test that the district

court actually determined. The government’s contention that he waived the

qualified-immunity issue is thus misguided. Insofar as the government is

suggesting that Mr. Deberry was obliged to address the second, clearlyestablished-law inquiry—even though the district court did not do so—or suffer

the pain of waiver as to the qualified-immunity issue, we reject that suggestion. 

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thoroughly and thoughtfully analyzed Mr. Deberry’s claims. With respect to the

due-process claim, the court correctly identified the key question: whether Mr.

Deberry has a “liberty interest” in avoiding transfers from the step-down program

to General Population at ADX. It analyzed that question under our governing

precedent, Estate of DiMarco v. Wyoming Department of Corrections, Division of

Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007), and considered the four factors

that DiMarco sets forth. Although the court reasoned that defendants here

arguably did not have a legitimate penological justification for refusing to restore

Mr. Deberry to his previous rung on the step-down ladder, it found that the

conditions in General Population were not extreme and that Mr. Deberry’s

placement there neither increased the duration of his confinement nor was

indeterminate. The court also carefully parsed the Supreme Court’s and our

precedent on prisoner liberty interests and concluded that Mr. Deberry’s transfer

from the Pre-Transfer Unit to General Population did not “impose[] atypical and

significant hardship on [him] in relation to the ordinary incidents of prison life.” 

Wilkinson v. Austin, 545 U.S. 209, 222–23 (2005) (quoting Sandin v. Conner, 515

U.S. 472, 484 (1995)) (internal quotation marks omitted). We believe that the

court’s analysis and conclusions are eminently sound.

With respect to his equal-protection claim, Mr. Deberry’s complaint alleged

only that his treatment was “different than that provided [to] similarly situated

prisoners” and that “in all other cases, once a finding of guilt was set aside, other

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prisoners were immediately restored to their prior status.” R., Vol. 1, at 66 (Am.

Prisoner Compl., filed May 20, 2010). The court found this to be merely

conclusory and lacking in factual basis. It pointed to our decision in Fogle v.

Pierson, where we found “clearly baseless” the “claim that there are other

inmates who are similar in every relevant respect.” 435 F.3d 1252, 1261 (10th

Cir. 2006) (quoting Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994))

(internal quotation marks omitted). We further noted in Fogle that a prisoner’s

“claim that there are no relevant differences between him and other inmates that

reasonably might account for their different treatment is not plausible or

arguable.” Id. (quoting Templeman, 16 F.3d at 371) (internal quotation marks

omitted). We agree with the court that Mr. Deberry did not carry his burden,

even at the more generous motion-to-dismiss stage, of sufficiently alleging an

equal-protection violation.

III. CONCLUSION

For the foregoing reasons, we DISMISS AS MOOT Mr. Deberry’s claims

to the extent that he requests equitable relief. Regarding his damages claims for

the purported violations of his due-process and equal-protection rights, like the

district court, we conclude that Mr. Deberry has not demonstrated “the existence

of a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)) (internal

10
quotation marks omitted). Accordingly, we DENY his motion for leave to

proceed on appeal in forma pauperis. 

Furthermore, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), we DISMISS Mr.

Deberry’s appeal as frivolous. And this dismissal will constitute a “strike” for

purposes of § 1915(g). See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility,

175 F.3d 775, 781 (10th Cir. 1999) (“If we dismiss as frivolous a prisoner’s

appeal of an action for which the district court entered judgment for defendant,

the dismissal of the appeal counts as one strike.”). It will “count[] against [Mr.

Deberry] from the date of the Supreme Court’s denial or dismissal of a petition

for writ of certiorari, if [Mr. Deberry] file[s] one, or from the date when the time

to file a petition for writ of certiorari expire[s], if he [does] not.” Hafed v. Fed.

Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011). We remind Mr.

Deberry that this § 1915(e)(2)(B)(i) dismissal does not relieve him of the

obligation to pay in full the appellate filing fee for the instant matter. See Kinnell

v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (“The district court correctly

dismissed Kinnell’s complaint under § 1915(g). Accordingly, we DENY leave to

proceed ifp in this court and DISMISS this appeal. Deberry is reminded that the

dismissal of his appeal does not relieve him of the responsibility to pay the

appellate filing fee in full.”); see also Hudson v. Mason, 445 F. App’x 139, 141

(10th Cir. 2011); Tuttamore v. Lappin, 429 F. App’x 687, 689 (10th Cir. 2011);

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Gutierrez v. Torres, 416 F. App’x 764, 767 (10th Cir. 2011). 

ENTERED FOR THE COURT

Jerome A. Holmes

Circuit Judge

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