*

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment 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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

August 30, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GROVER LEE MISKOVSKY,

Plaintiff - Appellant,

No. 10-6181

(D.C. No. 5:08-CV-00123-HE)

v. (W.D. Oklahoma)

JUSTIN JONES, Director,

OKLAHOMA DEPARTMENT OF

CORRECTIONS, JIM RABON,

Sentence Administrator; RONALD

ANDERSON; TWYLA MASON

GRAY; BECKY GUFFY, Assistant to

Warden; FELICIA HARRIS, Legal

Library Supervisor; KAY ROE, Trust

Account Technician; RICKEY

FRITCHER,

Defendants - Appellees.

ORDER AND JUDGMENT*
-2-

Before HARTZ, Circuit Judge, PORFILIO, Senior Circuit Judge, and

ANDERSON, Circuit Judge.

Grover Miskovsky, a prisoner of the State of Oklahoma, brought claims

under 42 U.S.C. § 1983 in the United States District Court for the Western

District of Oklahoma, alleging that Justin Jones, Director of the Oklahoma

Department of Corrections (ODOC), had violated his constitutional rights by

seizing the money in his prison draw account. The district court granted Jones

summary judgment on the constitutional claims, dismissed without prejudice 

Mr. Miskovsky’s challenge to his state sentence, and gave him leave to amend. 

After Mr. Miskovsky filed an amended complaint, which named additional

defendants, the court dismissed his new claims. He appeals. We have

jurisdiction under 28 U.S.C. § 1291; and we affirm in part and reverse in part.

I. BACKGROUND

On April 28, 2000, Oklahoma state-court judge Twyla Mason Gray

sentenced Mr. Miskovsky to consecutive terms of 84 years’ imprisonment for

racketeering, 7 years’ imprisonment for indecent exposure, and 2 years’

imprisonment for attempted perjury by subordination. Judge Gray also ordered

that he pay a total of $21,800 for fines, compensation to victims, and costs,

stating, “The Court orders that the Department of Corrections is to use the entire

draw account of this defendant towards the payment of fines, costs and fees until

all are satisfied.” R., Vol. 1 pt. 1-1 at 49.
-3-

The facility where Mr. Miskovsky was incarcerated established for him a

trust account, which was divided into a draw account and a statutorily required

savings account. See Okla. Stat. tit. 57 § 549(A)(5) (1996). Twenty percent of

all prison wages were placed in the savings account; those funds were to be paid

to Mr. Miskovsky upon his release, although they could be used to pay filing fees

for state or federal litigation. Prisoners used the draw account to pay for other

expenses, including medical and legal expenses and items purchased from the

prison canteen.

The prison made no payment from Mr. Miskovsky’s draw account for his

state-court fines and costs until May 18, 2006. At that time his entire drawaccount balance of $211.66 was remitted to the Oklahoma court. The prison

made additional periodic payments toward the amount owed until July 10, 2007;

the total taken from the draw account was $416.78.

On February 4, 2008, Mr. Miskovsky brought a pro se suit against Jones

under 42 U.S.C. § 1983. He alleged that ODOC’s use of his entire draw account

to pay his fines and court costs violated the Eighth Amendment prohibition on

cruel and unusual punishment as well as the Fourteenth Amendment guarantees of

due process and equal protection. As ordered by the district court, Jones filed a

Martinez Report of the ODOC’s investigation of Mr. Miskovsky’s claims. See

Martinez v. Aaron, 570 F.2d 317, 319–20 (10th Cir. 1978) (authorizing district

courts to order prison officials to investigate civil-rights complaints and prepare a
-4-

report for submission to the court). At the same time, Jones filed a motion to

dismiss or grant summary judgment. A magistrate judge recommended (1) that to

the extent that Mr. Miskovsky challenged his sentence, his claim should be

dismissed without prejudice, and (2) that Jones should be granted summary

judgment on Mr. Miskovsky’s Eighth Amendment, equal-protection, and dueprocess claims. The district court adopted the recommendation but gave

Mr. Miskovsky “leave to file an amended complaint . . . if he has other claims

arising out of the same underlying circumstances and which are not inconsistent

with the disposition of claims effected by this order.” R., Vol. 1, pt. 2-4 at 168.

Mr. Miskovsky filed an amended complaint in which he purported to

represent a class of prisoners who had been treated similarly to him and which

added as defendants the Oklahoma Department of Corrections, six ODOC

employees, Judge Gray, and John Doe. The amended complaint reiterated

Mr. Miskovsky’s previous claims of constitutional violations and added a number

of other allegations. It claimed that Defendants had entered into a conspiracy to

violate his constitutional rights and that Defendants, in retaliation for his filing

previous suits against Judge Gray and the present § 1983 action, had, among other

things, seized his legal mail, transferred him to a more dangerous prison,

conducted an irregular search of his cell and seized items he had purchased from

the canteen, seized the money in his mandatory savings account, and denied him
1

 The issues listed are: (1) the district court was wrong to conclude that his

suit attempted to vacate his state judgment or sentence; (2) the court was wrong to

dismiss any of his claims under Heck v. Humphrey, 512 U.S. 477 (1994); (3) the

court misinterpreted the amount of control that ODOC has over draw-account

funds; (4) the provision in the judgment ordering that Mr. Miskovsky’s entire

draw account be used to pay his fines and court costs should not be given any

effect; (5) the court’s decisions were based upon clearly erroneous factual

conclusions (although he does not identify which factual conclusions are clearly

erroneous); (6) the court could not apply preclusion against him because he had

not had a full and fair opportunity to litigate his claims (his actual argument,

however, appears to be that the district court did not apply the proper de novo

standard of review to the magistrate judge’s recommendation); (7) he sufficiently

stated a cause of action for conspiracy; (8) he linked each defendant to a violation

of his constitutional rights; (9) Defendants are not entitled to qualified immunity;

(10) Defendants violated his Eighth Amendment rights; (11) the court erred in

determining that his complaints were frivolous (although he does not state which

specific claims the court should not have found frivolous); (12) his retaliation

claims relating to seizure of his legal mail and to transfer to a more dangerous

prison should not have been dismissed; and (13) the court should not have

declined to exercise jurisdiction over his state-law claims.

-5-

medical care. The amended complaint also asserted that Defendants had violated

provisions of the Oklahoma constitution and its statutes.

The magistrate judge recommended that the amended complaint be

dismissed. The district court adopted the recommendation, dismissing most

claims with prejudice, although it dismissed without prejudice Mr. Miskovsky’s

state-law claims and some claims not factually related to the alleged misuse of his

draw account. 

II. DISCUSSION

Mr. Miskovsky’s opening brief is organized under 13 issues.1

 As best we

can understand the brief, it raises the following arguments: (1) the district court
-6-

erroneously concluded that he was challenging his state sentence; (2) Heck v.

Humphrey, 512 U.S. 477 (1994) does not apply to his claims; (3) the court

erroneously granted summary judgment on his Eighth Amendment claim (he does

not challenge the grant of summary judgment on his due-process and equalprotection claims); (4) the district court misinterpreted ODOC’s authority to

disburse money from his draw account; (5) Defendants are not entitled to

qualified immunity; (6) the court erred in dismissing his retaliation claims related

to seizure of his legal mail and to his transfer to a more dangerous prison; (7) his

conspiracy claims should not have been dismissed; and (8) the court should not

have declined to exercise jurisdiction over his state-law claims. We address these

claims in turn.

A. Challenge to Judgment and Sentence, and Heck v. Humphrey

Mr. Miskovsky complains that the district court dismissed his claim

challenging his judgment and sentence even though he raised no such claim. But

if the court erred in dismissing a nonexistent claim, Mr. Miskovsky suffered no

injury, and we need not concern ourselves with the issue.

Mr. Miskovsky’s Heck argument is related but more substantial. Heck

stated:

[I]n order to recover damages for . . . harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence has been reversed

on direct appeal, expunged by executive order, declared invalid by a
-7-

state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.

512 U.S. at 486–87 (footnote and citation omitted). Mr. Miskovsky contends that

his claims do not challenge actions that would render his conviction or sentence

invalid. He may be correct, but we need not resolve the issue. The district court

invoked Heck only as a ground for dismissing the constitutional claims in

Mr. Miskovsky’s amended complaint that had been made in his original

complaint, and it also dismissed those claims on the merits. Because we can

affirm the dismissals on the merits, it matters not whether Heck would also bar

the claims.

B. Eighth Amendment Claim

The district court granted summary judgment against Mr. Miskovsky on his

Eighth Amendment claim. 

We review de novo the district court’s summary judgment decision,

applying the same standard as [should] the district court. Summary

judgment is appropriate if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to

judgment as a matter of law.

Seegmiller v. Laverkin City, 528 F.3d 762, 766 (10th Cir. 2008) (citation and

internal quotation marks omitted).

An inmate making an Eighth Amendment claim for constitutionally

inadequate conditions of confinement must allege and prove an

objective component and a subjective component associated with the

deficiency. The objective component requires conditions sufficiently

serious so as to deprive inmates of the minimal civilized measure of
-8-

life’s necessities. Alternatively, a condition must be sufficiently

serious so as to constitute a substantial risk of serious harm. The

subjective component requires that a defendant prison official have a

culpable state of mind, that he or she acts or fails to act with

deliberate indifference to inmate health and safety.

Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (citations and internal

quotation marks omitted). Mr. Miskovsky’s claim fails on the objective

component. He claims that prison officials, by taking all the money in his draw

account, denied him access to hygiene items, clothing, and eyeglasses and that

they denied him use of the co-pay system that indigent inmates could use to pay

for medical services. But, as the magistrate judge’s report and recommendation

explains, the record, including the Martinez report, establishes that he suffered

minimal, if any, harm. 

C. ODOC’s Authority to Disburse Money from the Draw Account

Mr. Miskovsky contends that the district court should not have concluded

that ODOC could use all the money in his draw account to pay his court costs and

fines. He asserts that the pertinent Oklahoma statute and ODOC regulations

permit prison officials to disburse only a small portion of his prison wages. But

even if the court misconstrued Oklahoma law, a violation of that law by prison

officials would not be a ground for relief under § 1983. See Wilder v. Turner,

490 F.3d 810, 814 (10th Cir. 2007) (“Section 1983 does not provide a basis for

redressing violations of state law, but only for those violations of federal law

done under color of state law.” (ellipses and internal quotation marks omitted)). 
-9-

D. Qualified Immunity

Mr. Miskovsky argues that Defendants are not entitled to qualified

immunity because the law was clearly established and they knew they were

violating it. The district court, however, did not dispose of any claims on the

ground of qualified immunity. His argument is therefore irrelevant.

E. Retaliation Claims

Mr. Miskovsky challenges the district court’s dismissal of the claims

(added in his amended complaint) that Defendants retaliated against him for

bringing lawsuits by interfering with his legal mail and by transferring him to a

more dangerous prison. We affirm the dismissal of the first claim but must

reverse the dismissal of the latter.

“It is well-settled that prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.” Gee

v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (brackets and internal quotation

marks omitted). 

Government retaliation against a plaintiff for exercising his or her

First Amendment rights may be shown by proving the following

elements: (1) that the plaintiff was engaged in constitutionally

protected activity; (2) that the defendant’s actions caused the

plaintiff to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity; and (3) that the

defendant’s adverse action was substantially motivated as a response

to the plaintiff’s exercise of constitutionally protected conduct.
-10-

Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). We address the

legal-mail retaliation claim before turning to the prison-transfer claim. 

The verified amended complaint alleges the following: On August 4, 2008,

Mr. Miskovsky gave Defendant Felicia Harris, a law librarian, legal mail to be

sent to attorney Bob Esensten, care of Douglas Graham, at the Wasserman law

firm. When Defendant Ron Anderson was informed of the letter, he ordered it

seized. Defendant Becky Guffy, at Anderson’s direction, issued Mr. Miskovsky a

written reprimand telling him that the mail was not addressed to an attorney, that

the firm denied representing him, and that he would have to pay postage and

copying costs to send his mail or have his documents returned. Mr. Miskovsky

then filed a grievance and provided a February 28, 2008, letter from the law firm,

indicating that it was representing him and asking that it be placed on his

approved call list. But his grievance was denied and he was informed that his

request would be considered only if he provided a copy of the representation

agreement and proof that the firm was licensed in Oklahoma. These were new

requirements created by Anderson and they resulted in Mr. Miskovsky’s inability

to communicate with the law firm and the loss of its pro bono services.

These allegations may adequately state a claim of improper interference

with legal mail. But on appeal Mr. Miskovsky’s sole claim is that the actions

regarding his mail were improper retaliation for his litigation activities. Where

that claim fails is the absence of allegations to support the assertion that the legal-
-11-

mail actions were motivated by retaliation. He points to no litigation activity

between his initiating this suit on February 4, 2008, and the seizure of his mail on

August 4—six months later. Even if the initial complaint could have generated

animosity against him by the Defendants involved in the mail episode (which is

doubtful), the alleged retaliatory action was not “in close temporal proximity to

the protected activity” Gee, 627 F.3d at 1189. A six-month gap between the

protected activity (the initial complaint) and the alleged retaliation cannot,

without more, establish causation. See Anderson v. Coors Brewing Co., 181 F.3d

1171, 1179 (10th Cir. 1999) (In employment-discrimination cases alleging

retaliation for protected activity, “we have held that a three-month period,

standing alone, is insufficient to establish causation.”).

But Mr. Miskovsky’s retaliation claim based on his prison transfer does not

have that flaw. He alleges as follows: Anderson and Defendant Jim Rabon

ordered Mr. Miskovsky transferred from the James Crabtree Correction Center

(JCCC) to the Mack Alford Correction Center (MACC) on December 4, 2008. 

When he arrived at MACC, he asked the duty officer why he had been transferred

there when it was locked down for security reasons and he had been well-behaved

at JCCC. The officer responded, “You really pissed off a Judge.” Pl.’s Second,

& Supplementary Amended Compl. at 8, Miskovsky v. Jones, No. CIV-08-123-HE

(W.D. Okla. Aug. 31, 2009) ECF No. 77 (internal quotation marks omitted). The

officer further told him that MACC was a more dangerous prison than JCCC and
2

We note that the district court dismissed without prejudice some claims in

the amended complaint because they were not related to the original suit and thus

not within the court’s leave to amend. It does not appear that the retaliation

claims were dismissed on that ground, but we do not foreclose that disposition on

remand.

-12-

that he would be in danger there unless he remained in solitary confinement. The

complaint further asserts that Anderson and Rabon transferred him in retaliation

for his filing two pleadings on November 19, 2008, that described their behavior

in relation to his draw account and alleged that they were conspiring with Judge

Gray to harass him.

These allegations provide the three elements of a retaliation claim required

by Shero. His constitutionally protected activity was filing pleadings in federal

court. His transfer to a more dangerous prison would chill a person of ordinary

firmness from continuing to pursue the litigation. And the allegation of

retaliatory motive is supported by the “close temporal proximity”—15

days—between his filing the pleadings and his transfer to MACC. Gee, 627 F.3d

at 1189.

We therefore reverse the dismissal with prejudice of Mr. Miskovsky’s

retaliation claim related to his transfer to MACC, and we remand the claim to the

district court for further proceedings.2

F. Conspiracy Claims

The district court dismissed Mr. Miskovsky’s conspiracy claims as

frivolous or malicious because the claims had no factual support. See 28 U.S.C.
-13-

§§ 1915(e)(2)(B)(i), 1915A(b)(1). We “review[] frivolousness dismissals for an

abuse of discretion.” Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). 

A claim can be dismissed for frivolousness “only if it lacks an arguable basis

either in law or in fact.” Fratus v. Deland, 49 F.3d 673, 674 (10th Cir. 1995)

(internal quotation marks omitted); see Fogle v. Pierson, 435 F.3d 1252, 1262

(10th Cir. 2006). “[D]ismissal is appropriate for a claim based on an indisputably

meritless legal theory.” Fratus, 49 F.3d at 674 (internal quotation marks

omitted).

All but one of Mr. Miskovsky’s conspiracy claims were properly dismissed

because he has not shown any constitutional violation and “a deprivation of a

constitutional right is essential to proceed under a § 1983 conspiracy claim.” 

Snell v. Tunnell, 920 F.2d 673, 701–02 (10th Cir. 1990); see Dixon v. City of

Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990) (§ 1983 conspiracy requires both

agreement and actual deprivation of a right). The only remaining potential

conspiracy claim in the amended complaint is the alleged conspiracy to transfer

Mr. Miskovsky to an unsuitable prison in retaliation for his filing two pleadings

that allegedly angered Anderson, Rabon, and Judge Gray. Because the complaint

adequately alleges a conspiracy among those three Defendants, we reverse the

dismissal of that conspiracy claim and remand it to the district court for further

proceedings.

G. Dismissal of State-Law Claims
-14-

After disposing of Mr. Miskovsky’s federal claims, the district court

dismissed without prejudice any state-law claims that he was attempting to bring. 

Mr. Miskovsky contends that the court should instead have retained jurisdiction

or certified the state-law issues to the Oklahoma Supreme Court.

When state-law claims come within the district court’s supplemental

jurisdiction under 28 U.S.C. § 1367(a), the court has discretion not to exercise

that jurisdiction once it has dismissed all claims over which it has original

jurisdiction. See id. § 1367(c)(3); Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th

Cir. 2010). That discretion would have been exercised properly if we had

affirmed the dismissal of all Mr. Miskovsky’s federal claims. But because we

reverse the dismissal of two of those claims and remand them to the district court,

§ 1367(c)(3) no longer applies. We therefore set aside the dismissal of the statelaw claims and remand for further consideration. We do not foreclose a future

dismissal of those claims under § 1367(c).

III. CONCLUSION

We REVERSE the judgment of the district court with regard to

Mr. Miskovsky’s retaliation claim based on his prison transfer, the related

conspiracy claim, and the state-law claims and REMAND for proceedings

consistent with this order and judgment. We AFFIRM the judgment of the district 
-15-

court on all other claims and DENY all pending motions.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge