UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHRISTOPHER CLEVELAND, 

 Plaintiff - Appellant, 

v. 

KAMERON HARVANEK, Warden; 

DOUG BYRD, Warden; SUSAN 

WELCHER, Mailroom; LISA COLLINS, 

Law Librarian; JUSTIN JONES, Director 

DOC; RUSSELL LITTLETON, Unit Mgr; 

TERRY EDMINSTEN, Unit Mgr; 

JACLYN RIVERA, ADA; ALICE 

TURNER, Warden’s Assist; DEBBIE 

MORTON, Admin Review, 

 Defendants - Appellees. 

No. 14-7089 

(D.C. No. 6:13-CV-00247-RAW-SPS) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

Christopher Cleveland appeals the dismissal of his 42 U.S.C. § 1983 suit. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 *

 After examining the briefs and appellate record, this panel determined 

unanimously that oral argument would not materially assist in 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 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 

April 13, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I 

 Cleveland, a state prisoner appearing pro se,1

 asserts that his constitutional 

rights were violated by various Oklahoma Department of Corrections (“ODOC”) 

employees and other Oklahoma state officials. All of Cleveland’s claims involve 

restrictions on his contact with the outside world that were imposed when he was 

serving time at the John Lilley Correctional Center after being convicted of child 

abuse and perjury. Because of his child abuse convictions, Cleveland’s step-children 

were removed from his home, his parental rights to four of his children were 

terminated, and the state initiated litigation to terminate his parental rights to his fifth 

child.2

 Cleveland claims that ODOC staff denied him access to the prison law library 

when he sought to prepare briefs opposing the termination of his parental rights. 

They also denied him library access to prepare a supplemental brief in his direct 

appeal because he was represented by counsel. 

 Cleveland was not permitted visitation with his children while imprisoned 

once his parental rights had been terminated. During their correspondence with the 

district attorney’s office about the status of Cleveland’s parental rights, ODOC staff 

restricted Cleveland’s access to mail from his wife that contained copies of their 

 1

 We construe Cleveland’s pro se filings liberally. See Hall v. Bellmon, 935 

F.2d 1106, 1110 (10th Cir. 1991). 

2

 Because the record includes the names of Cleveland’s children, along with 

the details of their termination proceedings, the court sua sponte orders the Clerk to 

seal the record. See Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011) 

(explaining that the court has the discretion to seal documents “if the public’s right of 

access is outweighed by competing interests.” (quotation omitted)). 

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children’s birth certificates. Later, ODOC staff prevented Cleveland from receiving 

other mail from his wife because she and Cleveland were engaged in a scheme to 

avoid paying postage. Their scheme involved affixing stamps to a location on the 

envelopes where they would not be cancelled, then reusing the stamps. After a 

prison official discovered this scheme by marking stamps that Cleveland and his wife 

used, Cleveland was formally disciplined by ODOC and lost good-time credits. 

 Cleveland sued various ODOC staff and Oklahoma state officials, alleging 

violations of his First and Fourteenth Amendment rights. The district court 

dismissed some of his claims as unexhausted, and the rest as frivolous. Cleveland 

timely appealed. 

II 

Our review of a dismissal for failure to exhaust administrative remedies is de 

novo. Patel v. Fleming, 415 F.3d 1105, 1108 (10th Cir. 2005). Prisoners must 

exhaust all available administrative remedies before bringing suit with respect to 

prison conditions. 42 U.S.C. § 1997e(a). Exhaustion pursuant to § 1997e(a) requires 

“compliance with an agency’s deadlines and other critical procedural rules.” 

Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance 

process but does not complete it is barred from pursuing a § 1983 claim . . . for 

failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030, 

1032 (10th Cir. 2002). 

Cleveland claims that Oklahoma officials violated his constitutional rights by 

prohibiting his children from visiting him. Although Cleveland began the grievance 

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process for this claim, he failed to complete it. Cleveland’s grievance appeal was 

returned unanswered as untimely, and he did not file an application to appeal out of 

time. See Ngo, 548 U.S. at 90 (holding that exhaustion requires compliance with an 

agency’s deadlines). Cleveland’s argument that he sent the appeal on time is 

irrelevant, because, unlike federal court procedures, ODOC procedures base 

timeliness on the date an appeal is received. Compare Price v. Philpot, 420 F.3d 

1158, 1163-64 (10th Cir. 2005) (explaining prison mailbox rule for federal courts), 

with Smith v. Jones, No. CIV-12-1365-HE, 2014 WL 5448890, at *17 (W.D. Okla. 

Oct. 23, 2014) (unpublished) (stating that there is no “mailbox rule” for grievance 

appeals under the applicable ODOC procedures), aff’d, No. 14-6214, 2015 WL 

1345954, at *1-2 (10th Cir. Mar. 26, 2015) (unpublished). Finally, Cleveland’s 

subjective unawareness of the 30-day window to request an out-of-time appeal is 

irrelevant because it has no bearing on whether prison officials deliberately impeded 

his efforts to exhaust. Cf. Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). 

 Cleveland also claims that prison officials impermissibly conspired and 

retaliated against him for contesting various restrictions they placed on his 

correspondence privileges. The district court concluded that this claim was 

unexhausted, because Cleveland never filed an administrative grievance alleging 

retaliation or conspiracy, but instead filed grievances about individual acts that he 

later described in legal actions as retaliatory. We agree; none of Cleveland’s 

grievances allege retaliation or conspiracy. Cf. Carr v. Brill, 187 F. App’x 902, 904-

05 (10th Cir. 2006) (unpublished) (holding that retaliation claims by prisoners must 

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be brought through the grievance process). Cleveland argues that the claim is 

nevertheless exhausted because he alleged retaliation in his petition for judicial 

review of his misconduct hearing. But ODOC procedures require that appeals from 

misconduct hearings encompass only those issues raised during the misconduct 

hearing, and new claims raised during appeal proceedings are therefore not 

exhausted. Cf. id. at 905 (applying similar Colorado rule). 

III

 We review a district court’s dismissal of a claim as frivolous under 28 U.S.C. 

§ 1915 for abuse of discretion. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 

2006). “Dismissal for frivolousness is only appropriate for a claim based on an 

indisputably meritless legal theory.” Milligan v. Archuleta, 659 F.3d 1294, 1296 

(10th Cir. 2011) (quotations omitted). 

A 

 Cleveland claims that ODOC staff violated his First Amendment rights by 

denying him access to the prison law library to prepare documents in opposition to 

the suit seeking termination of his parental rights to his fifth child. Prisoners do not 

enjoy a “freestanding right to a law library or legal assistance,” but rather have a 

right to access a law library only to directly or collaterally attack their sentences or to 

challenge the conditions of their confinement. Lewis v. Casey, 518 U.S. 343, 351, 

355 (1996). The district court therefore did not abuse its discretion by dismissing as 

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frivolous Cleveland’s claim that he had a right to access the prison law library to 

work on a civil case unrelated to his conditions of confinement.3

 Separately, Cleveland contends that prison officials abridged his First 

Amendment rights by denying him law library access to file a pro se supplement to a 

brief filed by his direct appeal counsel. However, “[i]t is well established that 

provision of legal counsel is a constitutionally acceptable alternative to a prisoner’s 

demand to access a law library.” United States v. Cooper, 375 F.3d 1041, 1051-52 

(10th Cir. 2004); see also Love v. Summit Cnty., 776 F.2d 908, 913-15 (10th Cir. 

1985). 

B 

 Cleveland also argues that ODOC staff violated his rights by blocking access 

to mail from his wife containing copies of their children’s birth certificates. 

Undeniably, prisoners have First and Fourteenth Amendment interests in 

corresponding with the outside world. See Treff v. Galetka, 74 F.3d 191, 194 (10th 

Cir. 1996). However, “[a]n isolated incident” of prison staff delaying access to a 

prisoner’s mail, “without any evidence of improper motive . . . does not give rise to a 

constitutional violation.” Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990). 

 3

 On appeal, Cleveland does not appear to challenge the district court’s 

conclusion that alleged interference by prison officials with his attempts to petition 

the Oklahoma Supreme Court caused him no “actual injury.” To the extent a liberal 

construction of Cleveland’s pro se filings indicate that he challenges that decision on 

appeal, see Hall, 935 F.2d at 1110, we conclude that the district court did not abuse 

its discretion. Cleveland was able to petition the Oklahoma Supreme Court, and 

ultimately obtained a favorable ruling. Therefore, he suffered no actual injury. See 

Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (holding that an inmate must 

prove an actual injury from the denial of legal resources). 

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We therefore conclude that the district court did not abuse its discretion in dismissing 

Cleveland’s claim as frivolous, because he admits that prison officials quickly gave 

him the relevant mail once they realized there was no restriction on him receiving it. 

 Cleveland further contends that ODOC staff violated his rights by restricting 

other mail from his wife as a result of their postmark-evasion scheme. Prisons may 

restrict an inmate’s right to receive mail for concerns reasonably related to legitimate 

penological interests. Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). One such 

interest is deterring crime. See Turner v. Safley, 482 U.S. 78, 91-92 (1987). Reuse 

of stamps that have already been used to pay postage is a crime. 18 U.S.C. § 1720. 

Cleveland’s argument that the Postal Service sent the letters despite the misplaced 

stamps is unavailing; his ability to deceive the Postal Service does not lessen the 

prison’s interest in deterring illegal activities. Moreover, Cleveland is flatly incorrect 

that prison officials are not allowed to withhold incoming mail in order to deter an 

inmate’s criminal activity. See Safley, 482 U.S. at 91-92 (recognizing legitimate 

penological interest in withholding incoming mail to deter criminal activity). 

C

 Finally, Cleveland argues that the disciplinary proceeding that resulted from 

his postmark-evasion scheme violated his Fourteenth Amendment due process rights. 

When disciplinary proceedings could result in the loss of good-time credits, prisoners 

must receive: “(a) advance written notice of the charges; (b) an opportunity, when 

consistent with institutional safety and correctional goals, to call witnesses and 

present documentary evidence in [their] defense; and (c) a written statement by the 

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factfinder of the evidence relied upon and reasons for the disciplinary action.” 

Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). “[T]he decision must be 

supported by some evidence.” Id. Our review of the record shows that Cleveland 

received all the required procedural safeguards, and his claims that ODOC staff 

conspired to find him guilty are belied by sworn affidavits in the record. Cleveland’s 

claim that there was insufficient evidence to find him guilty of a disciplinary 

violation is contradicted by evidence in the record showing envelopes addressed to 

him by his wife, with stamps marked as having been previously used placed below 

the postmark. This is sufficient to satisfy the “some evidence” standard. See Wilson, 

430 F.3d at 1117. 

IV 

 We AFFIRM the district court’s dismissal of Cleveland’s unexhausted claims 

and its conclusion that his exhausted claims are frivolous under 28 U.S.C. 

§ 1915(e)(2). Accordingly, we impose a strike, Cleveland’s third, under the Prison 

Litigation Reform Act. See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 

F.3d 775, 780 (10th Cir. 1999). Cleveland’s motion to proceed in forma pauperis on 

appeal has already been granted, but we remind him of his obligation to continue 

making partial payments until the entire filing fee has been paid in full. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

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