* 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 (continued...) 

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

### JAN 28 1998 

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

SANDRA MARSH,

Plaintiff-Appellant,

v. CORRECTIONS CORPORATION OF AMERICA; TOM NEWTON, Warden; PENNY LUCERO, Deputy Warden; HELEN TORREZ, Shift Commander; DARLENE VALLEY, Assistant Shift Commander; MAUREEN VAUGHN, Disciplinary Officer; DON RUSSELL, Hearing Officer; MARCELLA CHAVEZ, Commissary Officer; BILL SNODGRASS, Chief of Security; BOBBY KROEN, Shift Commander; ANN DOUGHERTY, Caseworker; NEW MEXICO CORRECTIONS DEPARTMENT; KARL SANICKS, Secretary of Corrections; PRISCILLA GALLEGOS, D.O.C. Appeal Officer; HERB MASCHNER, Secretary’s Designee; MANUEL ROMERO, Secretary’s Designee,

Defendants-Appellees. No. 97-2070 (D.C. No. CIV 95-1468 BB/LFG)

(D. N.M.)

ORDER AND JUDGMENT ** (...continued)

ordered submitted without oral argument. This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

1 Plaintiff did not file objections to the magistrate judge’s recommendation that her claims against Defendant Sanicks be dismis sed, see Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996) (generally, fai lure to file timely objections waives appellate review of both legal and factual i ssues), nor does she challenge the district court’s adoption of that recommendatio n now on appeal. Plaintiff also does not challenge on appeal the district court’s d ismissal of her habeas claims without prejudice. -2- Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

Plaintiff appeals the district court’s decision granting defendants’ motions for summary judgment and dismissing her 42 U.S.C. § 1983 claims with prejudice. 1 Upon consideration of the record and the parties’ briefs, we affirm. Plaintiff, an inmate confined in New Mexico’s Women ’s Correctional Facility, challenges her receipt of a minor offense report, in May 1995, for leaving her prison work assignment without permissi on. The district court declined to address this incident because plaintiff had raised these same issues in another lawsuit. Plaintiff fails to assert any reason why these issues cannot be adequately addressed in the other litigation. The district court, therefore, did not-3-

abuse its discretion in dismissing her claims stemm ing from this minor misconduct report. See Tamari v. Bache & Co. (Lebanon) S.A.L. , 565 F.2d 1194, 1202-03 (7th Cir. 1977) (reviewing dismissal of cla ims raised in another action for abuse of discretion). The remainder of plaintiff’s claims focus upon a ma jor misconduct report she received, in September 1995, for refusin g to submit to a drug test. As a result, plaintiff was confined to disciplinarysegregation for fifteen days, lost earned good time credits, and had her custody level increased. The district court granted defendants summary judgment on her cl aims stemming from this incident. This court reviews summary judgment decisions de no vo, reviewing the record in the light most favorable to the nonmoving party. See, e.g. , Sprague v. Thorn Americas, Inc, , 129 F.3d 1355, 1360-61 (10th Cir. 1997). Summary judgment is appropriate only if there are no genuin ely disputed issues of material fact and the moving party is entitled to judgment a s a matter of law. See Fed. R. Civ. P. 56(c). Plaintiff asserts that the manner in which defendants conducted the prison disciplinary hearing addressing this major miscondu ct report deprived her of2 Because we interpret plaintiff’s due process claims to challenge only the

procedure by which defendants found her guilty of the major misconduct violation, rather than challenging the validity of the guilt determination itself, plaintiff may assert these claims in this § 1983 ac tion. See Edwards v. Balisok , 117 S. Ct. 1584 (1997). -4- procedural due process. 2She failed to establish, however, that this heari ng implicated any liberty interest which would be prot ected by due process. See Allen v. Muskogee , 119 F.3d 837, 841 (10th Cir. 1997) (Rule 56(c) mandates entry of summary judgment against party who fails t o make showing sufficient to establish an essential element of her case, uponwhich she would bear burden of proof, citing Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986)), petition for cert. filed , 66 U.S.L.W. 3428 (Dec. 11, 1997) (No. 97-970). A State creates a liberty interest, protected by du e process, in freedom from restraint that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” or “wher e the State’s action will inevitably affect the duration of [her] sentence.” Sandin v. Conner , 515 U.S. 472, 484, 487 (1995). Plaintiff failed to meet her burd en of putting forth evidence establishing that her confinement to disciplinary s egregation for fifteen days was a hardship atypical and significantly different fro m the “ordinary incidents of prison life.” Id. at 484. Further, although plaintiff alleged that she lost e arned good time credits as a result of this major misconduct violation, that assertion alone does not-5-

implicate a liberty interest. See Wolff v. McDonnell , 418 U.S. 539, 557 (1974) (no constitutional right to receive good time credi ts). Rather, plaintiff must put forth evidence tending to establish that she earnedthose credits through a mandatory good time scheme that provided for the lo ss of those credits only through serious misconduct, and that the loss of th ose credits would “inevitably affect the duration of [her] sentence,” Sandin , 515 U.S. at 487. See Madison v. Parker , 104 F.3d 765, 768 (5th Cir. 1997); Moorman v. Tha lacker , 83 F.3d 970, 973 (8th Cir. 1996); McGuinness v. Dubois , 75 F.3d 794, 797 n.3 (1st Cir. 1996). This plaintiff failed to do. Even assuming that plaintiff’s brief confinement indisciplinary segregation and the loss of good time credits did implicate lib erty interests, the undisputed facts establish that she received due process. In a prison disciplinary hearing, an inmate is entitled to 1) advance written notice of the disciplinary charges, 2) an opportunity, when consistent with institutional saf ety and correctional goals, to present evidence and witnesses in her own defense, and 3) the decisionmaker’s written statement indicating the evidence relied up on and the reasons supporting the disciplinary action. See Mitchell v. Maynard , 80 F.3d 1433, 1445 (10th Cir. 1996). Although plaintiff alleges a number of othe r ways defendants violated her due process rights, our review is limited to determ ining whether defendants-6-

complied with these three requirements and whether there was some evidence to support the disciplinary action. See id. The undisputed facts in this case establish that de fendants complied with these requirements and, thus, provided plaintiff wi th due process. In addition, because the disciplinary decision was based upon so me evidence and was, therefore, valid, we need not address plaintiff’s c laims challenging the validity of the administrative appeal proceedings. See id. at 1446. Plaintiff also asserted procedural due process chal lenges to prison grievance proceedings and the increase in her custo dy level. The district court did not err in granting defendants summary judgmenton these claims because plaintiff failed to establish the existence of a pr otected liberty interest in the prison grievance proceedings, see Buckley v. Barlow , 997 F.2d 494, 495 (8th Cir. 1993), and in the reclassification of her custody l evel, see Templeman v. Gunter , 16 F.3d 367, 369 (10th Cir. 1994) (noting inmate is not constitutionally entitled to any particular degree of freedom in prison, citi ng Meachum v. Fano , 427 U.S. 215, 225 (1976)). The district court did not err in granting defendants summary judgment on plaintiff’s claims challenging the conditions inwhich she was confined in disciplinary segregation. Plaintiff failed to asse rt evidence establishing that she suffered a serious harm from the deprivation of toi let paper and hygiene items for-7-

four of the fifteen days of her disciplinary confin ement. See Penrod v. Zavaras , 94 F.3d 1399, 1405-06 (10th Cir. 1996) (Eighth Amen dment is violated only if alleged deliberate deprivation causes objectively s erious harm). Likewise, plaintiff did not establish that she suffered any a ctual injury resulting from defendants’ purported interference with her access to the courts. See Lewis v. Casey , 116 S. Ct. 2174, 2179-82 (1996). Plaintiff also alleged that defendants violated the Restoration of Religious Freedom Act (RFRA), see 42 U.S.C. §§ 2000bb to 2000bb-4, and the First Amendment by depriving her of religious materials while she was confined in disciplinary segregation. The Supreme Court has si nce declared RFRA to have been an unconstitutional exercise of congressional authority. See City of Boerne v. Flores , 117 S. Ct. 2157, 2160 (1997). We, therefore, nee d not address her RFRA claim. Further, plaintiff’s allegations that defendants te mporarily deprived her of religious items during the fifteen days she was con fined to disciplinary segregation failed to satisfy her burden of establi shing a First Amendment violation. See Fillmore v. Eichkorn , 891 F. Supp. 1482, 1493 (D. Kan. 1995) (denial of arrestee’s religious requests for cottonclothing, distilled water and a Holy Bible over a weekend did not establish const itutional violation), aff’d , 77 F.3d 492 (10th Cir. 1996) (Table); see also Bryan v. Administrative of F.C.I.-8-

Otisville , 897 F. Supp. 134, 137 (S.D.N.Y. 1995) (given legi timate security concerns in prison context, brief three-day confisc ation of religious items does not seem unreasonable). Finally, plaintiff asserts that defendants took all of these challenged actions in retaliation against her because of her pursuit o f First Amendment activities, including pursuing prison grievances, acting as a “ jailhouse” lawyer, pursuing litigation challenging prison conditions, and corre sponding with state legislators. See generallySmith v. Maschner , 899 F.2d 940, 947-48 (10th Cir. 1990) (prison officials may not retaliate against inmate for exer cising constitutional right, even where action taken would otherwise be permissible); but see id. at 950 (because inmate does not have protected interest in providin g legal representation to other inmates, he cannot assert claim for retaliation aga inst him for acting as “jailhouse lawyer”). The relevant inquiry here is whether pla intiff presented sufficient evidence from which a fair-minded jury could infer that prison officials subjected her to a drug test and subsequent disciplinary proc eedings based, at least in part, upon an improper retaliatory motive. See id. at 949. Plaintiff contends that her evidence of the chronology of events is sufficient to create a genuinely disputed issue of fact as to defendants’ motive. We disagre e. The only First Amendment activity that plaintiff al leged occurred in close proximity to the disciplinary action at issue here was plaintiff’s mailing 112-9-

letters to state legislators five days prior to the drug test request. In her appellate brief, however, plaintiff concedes that the prison officials authorizing and requesting the drug test were unaware of this corre spondence. See Appellant’s Reply Br. at 3 (not contesting defendants’ paragrap h 18, see Appellees’ Br. at 8). This evidence, therefore, and the remainder of plai ntiff’s allegations, are insufficient to create a triable issue as to whethe r defendants acted in retaliation against plaintiff. The judgment of the United States District Court fo r the District of New Mexico is, therefore, AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge