* This order and judgment is not binding precedent, e xcept under the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

### SEP 3 1997 

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

ROBERT SHAWN TREFF,

Plaintiff-Appellant,

v. EVONNE T. DEHAAN and CARL JACOBSON,

Defendants-Appellees. No. 97-4016 (D.C. No. 92-CV-363) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Two cases filed by Mr. Treff were consolidated in the district court. The

complaint in case No. 92-C-363 W was brought agains t Ms. DeHaan and various other prison officials and employees. The complaint in case No. 93-C-379 G added Mr. Jacobson to the list of defendants. The issues Mr. Treff has raised on appeal concern only Ms. DeHaan and Mr. Jacobson.

2 Mr. Treff complains that Ms. DeHaan discriminated a gainst him in work assignments, evaluated him unfairly, removed a reli giously significant sign from his work area, permitted other inmates to make offe nsive comments about him, required him to submit a written request for an exc used absence on a religious holiday, requested a shakedown of his cell, and eff ected his dismissal from a special program within the Utah State Prison. -2- Robert Shawn Treff, a Utah state prisoner proceedin g pro se in this 42 U.S.C. § 1983 action, appeals from the district court’s entry of summary judgment in favor of defendants. 1 We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Factual Background Mr. Treff contends that Defendant Evonne T. DeHaan, his supervisor in the Utah Correctional Industries (UCI) Data Entry Shop, singled him out for strict

treatment 2 because he is Jewish and because he had filed grie vances and lawsuits in protest of the allegedly discriminatory treatmen t. A workplace confrontation between Mr. Treff and Ms. DeHaan led to his termination from UCI employment and a disciplinary hearing before Defendant Carl Ja cobson, an institutional disciplinary hearing officer. Following the hearin g, Mr. Jacobson found Mr. Treff guilty of committing an act which threatened the safety, security,3 The case was assigned to a magistrate judge pursuant to 28 U.S.C.

§ 636(b)(1)(B). In his report and recommendation, the magistrate judge recommended granting summary judgment on the equal protection, due process, and cruel and unusual punishment claims, but denyin g it on the retaliation claim. Plaintiff and defendants both filed objections to the magistrate’s recommended disposition of the matter. After conducting a de n ovo review, the district court decided to adopt the report as to the due process and cruel and unusual punishment claims and to reject it as to the analys is of the equal protection claim and the disposition of the retaliation claim. -3- management or control of the prison facility. He i mposed a punishment of seven days in isolation, but suspended the punishment on the condition that Mr. Treff refrain from committing additional disciplinary vio lations for thirty days. Because Mr. Treff remained free of violations durin g the thirty-day period, he did not serve the time in isolation. Mr. Treff asserts that, during this course of event s, (1) Ms. DeHaan violated his right to equal protection of the law b y discriminating against him on the basis of his religion; (2) Ms. DeHaan retaliate d against him for his exercise of the right of access to the courts; (3) Mr. Jacobsondeprived him of procedural due process by refusing his request to call witnesses at the disciplinary hearing; and (4) both defendants subjected him to cruel and unus ual punishment. In a thoughtful and well-written memorandum decision andorder, the district court entered summary judgment in favor of defendants on all claims. 3-4-

II. Discussion We review de novo the grant of summary judgment, ap plying the same legal standard used by the district court under Fed. R. C iv. P. 56(c). See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Summary jud gment is appropriate if the record “show[s] that there is no genuine iss ue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We construe pro se pleading s liberally, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991), and view the record in the light most favorable to the party opposing the summary ju dgment motion, see Kaul , 83 F.3d at 1212. Generally, the Equal Protection Clause of the Fourt eenth Amendment protects inmates from invidious discrimination. Se e Wolff v. McDonnell , 418 U.S. 539, 556 (1974). However, a plaintiff must sh ow that the defendants intentionally discriminated against him because of his membership in a protected class. See Copeland v. Machulis , 57 F.3d 476, 480 (6th Cir. 1995). “[M]ere disparate impact is insufficient to demonstrate an equal protection violation.” Id. at 481. A plaintiff’s subjective belief of discrim ination is also insufficient to show a genuine issue of material fact remaining fortrial. Cf. Aramburu v. Boeing
Co. , 112 F.3d 1398, 1408 n.7 (10th Cir. 1997) (noting that a subjective belief in discrimination does not preclude summary judgment o n a claim of employment-5-

discrimination based on ancestry). Because Mr. Tre ff provided less than a scintilla of evidence of discriminatory intent on t he part of Ms. DeHaan, his equal protection claim cannot withstand summary judgment. Similarly, Mr. Treff failed to support his claim th at Ms. DeHaan’s actions were taken in retaliation for his exercise of a con stitutionally protected activity, the filing of grievances and lawsuits. To oppose amotion for summary judgment, an inmate must submit evidence showing that a jury could reasonably find that a motivating factor behind defendants’ actions was re taliation for his prior or current litigation. See Smith v. Maschner , 899 F.2d 940, 948 n.4, 949 (10th Cir. 1990). A “‘causal connection may be demonstrated b y evidence of circumstances that justify an inference of retaliatory motive, su ch as protected conduct closely followed by adverse action.’” Conner v. Schnuck Markets, Inc. , 1997 WL 436255, *4 (10th Cir. Aug. 5, 1997) (quoting Burrus v. United Tel. Co. of Kansas, Inc. , 683 F.2d 339, 343 (10th Cir. 1982) in a discussi on of retaliation in violation of the Fair Labor Standards Act). In ins tances in which a defendant provides legitimate, nonretaliatory reasons for the adverse action, however, a mere temporal connection may not justify an inferen ce of causation. See Conner , 1997 WL 436255 at ** 7-8. Here, Mr. Treff has shown temporal proximity, in th at he has pursued so many grievances and lawsuits that any action taken by a prison authority could be4 The district court compiled a listing of plaintiff’ s lawsuits filed in that

court from 1988 through December 20, 1996, the date of its Memorandum Decision and Order: Treff v. Cook , No. 88cv053 (D. Utah filed Jan. 25, 1988) (dismis sed on summary judgment), aff’d , 70 F.3d 123 (10th Cir. 1995); Treff v. Smith , No. 88cv054 (D. Utah filed Jan. 25, 1988) (dismis sed with prejudice pursuant to stipulation Mar. 2, 1990); Tr eff v. Barnes , No. 90cv071 (D. Utah filed Sept 18, 1990) (dismisse d on summary judgment), aff’d, 91 F.3d 160 (10th Cir. 1996); Treff v. Miner , No. 92cv959 (D. Utah filed Nov. 9, 1992) (dismissedon summary judgment Sept. 1, 1994); Treff v. Galetka , No. 93cv005 (D. Utah filed Jan. 5, 1993) (dismissed on summary judgment) , aff’d , 74 F.3d 191 (10th Cir. 1996); Treff v. Smith , No. 93cv271 (D. Utah filed Mar. 17, 1993) (defendants’ motion to dismiss grant ed Oct. 22, 1993); Treff v. DeHaan , No. 93cv379 (D. Utah filed Apr. 16, 1993) (consolidated with No. 92cv363 (now before the court)); Treff v. Bartell , No. 93cv606 (D. Utah filed June 25, 1993) (case s till pending); Treff v. Woolston , No. 93cv837 (D. Utah filed Sept. 30, 1992 (case still pending); Treff v. Nielson , No. 93cv848 (D. Utah filed Sept. 23, 1993) (dismissed pursuant to 28 U.S .C. § 1915(d) Mar. 14, 1995). R. Vol. III, Doc. 112 at p.2-3, n.1. On appeal, Mr . Treff argues that this listing, along with the district court’s brief description o f Mr. Treff’s conviction, demonstrates the animosity of the district court an d amounts to an abuse of discretion. This argument is frivolous. -6- regarded as in proximity with one of his legal fili ngs. 4 Ms. DeHaan, however, has presented legitimate and nonretaliatory reasons for her actions. Under these circumstances, mere proximity of time is insufficie nt to create a genuine issue of fact as to motivation. Because Mr. Treff has produ ced no additional evidence of a retaliatory motive, the district court properly e ntered summary judgment on the claim.-7-

The case of Sandin v. Conner , 515 U.S. 472, 115 S. Ct. 2293 (1995), controls our analysis of Mr. Treff’s claim that he was denied due process during his disciplinary hearing. Under Sandin , an inmate’s liberty interest is not implicated unless the disciplinary measure in quest ion imposed an “atypical and significant hardship on the inmate in relation to t he ordinary incidents of prison life.” Id. , 115 S. Ct. at 2300. The suspended punishment giv en to Mr. Treff does not amount to a significant hardship. Therefore, i t does not implicate a liberty interest and does not trigger due process protectio ns. Mr. Treff’s Eighth Amendment claim can be disposed of with little analysis. Only those deprivations denying “the min imal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian , 503 U.S. 1, 9 (1992) (further quotations and citations omitted). The deprivations alleged by Mr . Treff are not sufficiently weighty to invoke the constitutional ban on cruel and unusual punishment. Finally, we reject Mr. Treff’s procedural objection s and requests. The district court did not abuse its discretion by granting defendants’ motion for additional time to respond to Mr. Treff’s objection s to the magistrate’s recommended disposition of the matter. See Fed. R. Civ. 6(b), 72(b). We do not reach Mr. Treff’s claim that the district court err ed in imposing a filing fee pursuant to 28 U.S.C. § 1915(g) (denying in forma p auperis status to a prisoner5 We note that the cited case also dealt with Mr. Tre ff’s in forma pauperis

status. We affirmed the district court’s impositio n of certain costs, holding that “when a litigant’s financial condition improves dur ing the course of the litigation, the district court may require him or her to pay fe es and costs.” Treff v. Galetka , 74 F.3d at 197. -8- bringing a civil action who has, “on 3 or more prio r occasions . . . brought an action or appeal . . . that was dismissed on the gr ounds that it is frivolous, malicious, or fails to state a claim upon which rel ief may be granted, unless the prisoner is under imminent danger of serious physic al injury.”) Because Mr. Treff did not raise this issue in the district court, we decline to address it here. See Treff v. Galetka , 74 F.3d 191, 193 (10th Cir. 1996). 5 We deny Mr. Treff’s motion to supplement the record. The addit ional materials were not properly included in the district court record as e xhibits to a summary judgment filing. See Aero-Medical Inc. v. United States , 23 F.3d 328, 329 n.2 (10th Cir. 1994); Fed. R. App. P. 10(a). The judgment of the United States District Court fo r the District of Utah is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby Circuit Judge