FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 29, 2020 _________________________________ Christopher M. Wolpert Clerk of Court STEVEN R. BARELA,
Petitioner - Appellant, No. 20-8016 (D.C. No. 1:19-CV-00011-NDF) v. (D. Wyo.)
WYOMING DEPT. OF CORR. HONOR CONSERVATION CAMP WARDEN TODD MARTIN, in his official capacity,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________
This appeal grew out of Mr. Steven Barela’s habeas action involving
two disciplinary proceedings. The first proceeding involved Mr. Barela’s
participation in a program involving dogs. Authorities suspected that Mr.
Barela had committed a disciplinary violation by feeding human food to a
* Mr. Barela seeks oral argument, but it would not materially help us to decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). dog. The second proceeding involved a disciplinary allegation that Mr.
Barela had threatened other inmates.
Both proceedings resulted in disciplinary sanctions, which led Mr.
Barela to seek federal habeas relief based on a denial of due process,
violation of equal protection, and violation of the state constitution. The
district court awarded summary judgment to the respondent (Warden Todd
Martin), denied Mr. Barela’s motion for a certificate of appealability on
the due-process claims, and granted a certificate of appealability on the
equal-protection claims. Mr. Barela seeks a certificate on the due-process
claims and appeals the dismissal of his other claims.
1. Construction of Mr. Barela’s Opening Appeal Brief
His opening appeal brief consists of only a few words and contains
no argument. But he attaches several briefs from district court. Because he
is pro se, we liberally construe his opening appeal brief to include the
arguments in these attachments. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
2. The Due-Process Claims
In his habeas petition, Mr. Barela claimed that prison authorities had
failed to provide due process in the two disciplinary proceedings. The
district court rejected these claims, reasoning that the disciplinary
sanctions had not involved a protected interest.
2 To appeal this ruling, Mr. Barela needs a certificate of appealability.
See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (concluding
that a certificate of appealability is required for state prisoners seeking to
appeal the denial of habeas relief filed under 28 U.S.C. § 2241). The test
for granting a certificate is generous, permitting a certificate if the
summary-judgment ruling was reasonably debatable. Slack v. McDaniel,
529 U.S. 473, 483–84 (2000). We must apply this generous test in light of
the standard of review, the test for summary judgment, and the underlying
requirements for due process.
If we were to entertain the appeal on the due-process claims, we
would engage in de novo review of the award of summary judgment.
Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239 (10th Cir. 2001). To
apply this standard, we would view the evidence favorably to Mr. Barela
and uphold the summary-judgment ruling only if the respondent had shown
a right to judgment as a matter of law and the absence of a genuine dispute
of material fact. Fed. R. Civ. P. 56(a).
In an appeal, we would apply this standard to the underlying
substantive requirements for a due-process claim. These requirements
include the existence of an interest in life, liberty, or property. Templeman
v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Of these interests, the only
3 conceivable possibility is a liberty interest. 1 So we must decide whether the
summary-judgment evidence suggested a possible liberty interest.
We consider the existence of a liberty interest for the various
restrictions imposed on Mr. Barela. These restrictions started when
authorities put Mr. Barela in restricted housing during an investigation into
possible disciplinary charges. In the eventual disciplinary hearing,
authorities found Mr. Barela guilty and sanctioned him with lost time for
recreation and television.
While in restricted housing, Mr. Barela attended a hearing to
consider his request for commutation. Because he remained in restricted
housing, he had to appear in restraints. His bid for commutation was
unsuccessful, and Mr. Barela attributes the outcome to his appearance in
restraints.
Given the outcome of the disciplinary proceedings, we consider
whether a fact-finder could reasonably infer a liberty interest from the loss
of time for recreation or television, placement in restricted housing, or
prejudice to the bid for commutation. In our view, none of these
consequences could have triggered a liberty interest.
1 Mr. Barela also contends that some of his property was lost. But the disciplinary proceedings didn’t lead to an order depriving Mr. Barela of any property. Any loss of property would have resulted only indirectly from the disciplinary proceedings.
4 Virtually all prisoners are subject to numerous restrictions, and
violations typically carry a variety of sanctions. These sanctions affect a
liberty interest only when they restrain freedom significantly and
atypically “in relation to ordinary incidents of prison life.” Sandin v.
Connor, 515 U.S. 472, 484 (1974). So we consider the typicality and
significance of the disciplinary sanctions ultimately imposed on Mr.
Barela.
These sanctions included a temporary loss of television (15 days) and
recreation privileges (45 days). These are common sanctions in prisons, so
they couldn’t possibly trigger a liberty interest. See, e.g., Grady v. Garcia,
506 F. App’x 812, 814-15 (10th Cir. 2013) (unpublished) (affirming the
award of summary judgment on an inmate’s due-process claims regarding
loss of time for television and recreation); Marshall v. Morton, 421 F.
App’x 832, 838 (10th Cir. 2011) (unpublished) (stating that “restrictions
on an inmate’s . . . recreation privileges are not different in such degree
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 29, 2020 _________________________________ Christopher M. Wolpert Clerk of Court STEVEN R. BARELA,
Petitioner - Appellant, No. 20-8016 (D.C. No. 1:19-CV-00011-NDF) v. (D. Wyo.)
WYOMING DEPT. OF CORR. HONOR CONSERVATION CAMP WARDEN TODD MARTIN, in his official capacity,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________
This appeal grew out of Mr. Steven Barela’s habeas action involving
two disciplinary proceedings. The first proceeding involved Mr. Barela’s
participation in a program involving dogs. Authorities suspected that Mr.
Barela had committed a disciplinary violation by feeding human food to a
* Mr. Barela seeks oral argument, but it would not materially help us to decide the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). So we have decided the appeal based on the record and the parties’ briefs.
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). dog. The second proceeding involved a disciplinary allegation that Mr.
Barela had threatened other inmates.
Both proceedings resulted in disciplinary sanctions, which led Mr.
Barela to seek federal habeas relief based on a denial of due process,
violation of equal protection, and violation of the state constitution. The
district court awarded summary judgment to the respondent (Warden Todd
Martin), denied Mr. Barela’s motion for a certificate of appealability on
the due-process claims, and granted a certificate of appealability on the
equal-protection claims. Mr. Barela seeks a certificate on the due-process
claims and appeals the dismissal of his other claims.
1. Construction of Mr. Barela’s Opening Appeal Brief
His opening appeal brief consists of only a few words and contains
no argument. But he attaches several briefs from district court. Because he
is pro se, we liberally construe his opening appeal brief to include the
arguments in these attachments. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
2. The Due-Process Claims
In his habeas petition, Mr. Barela claimed that prison authorities had
failed to provide due process in the two disciplinary proceedings. The
district court rejected these claims, reasoning that the disciplinary
sanctions had not involved a protected interest.
2 To appeal this ruling, Mr. Barela needs a certificate of appealability.
See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (concluding
that a certificate of appealability is required for state prisoners seeking to
appeal the denial of habeas relief filed under 28 U.S.C. § 2241). The test
for granting a certificate is generous, permitting a certificate if the
summary-judgment ruling was reasonably debatable. Slack v. McDaniel,
529 U.S. 473, 483–84 (2000). We must apply this generous test in light of
the standard of review, the test for summary judgment, and the underlying
requirements for due process.
If we were to entertain the appeal on the due-process claims, we
would engage in de novo review of the award of summary judgment.
Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239 (10th Cir. 2001). To
apply this standard, we would view the evidence favorably to Mr. Barela
and uphold the summary-judgment ruling only if the respondent had shown
a right to judgment as a matter of law and the absence of a genuine dispute
of material fact. Fed. R. Civ. P. 56(a).
In an appeal, we would apply this standard to the underlying
substantive requirements for a due-process claim. These requirements
include the existence of an interest in life, liberty, or property. Templeman
v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Of these interests, the only
3 conceivable possibility is a liberty interest. 1 So we must decide whether the
summary-judgment evidence suggested a possible liberty interest.
We consider the existence of a liberty interest for the various
restrictions imposed on Mr. Barela. These restrictions started when
authorities put Mr. Barela in restricted housing during an investigation into
possible disciplinary charges. In the eventual disciplinary hearing,
authorities found Mr. Barela guilty and sanctioned him with lost time for
recreation and television.
While in restricted housing, Mr. Barela attended a hearing to
consider his request for commutation. Because he remained in restricted
housing, he had to appear in restraints. His bid for commutation was
unsuccessful, and Mr. Barela attributes the outcome to his appearance in
restraints.
Given the outcome of the disciplinary proceedings, we consider
whether a fact-finder could reasonably infer a liberty interest from the loss
of time for recreation or television, placement in restricted housing, or
prejudice to the bid for commutation. In our view, none of these
consequences could have triggered a liberty interest.
1 Mr. Barela also contends that some of his property was lost. But the disciplinary proceedings didn’t lead to an order depriving Mr. Barela of any property. Any loss of property would have resulted only indirectly from the disciplinary proceedings.
4 Virtually all prisoners are subject to numerous restrictions, and
violations typically carry a variety of sanctions. These sanctions affect a
liberty interest only when they restrain freedom significantly and
atypically “in relation to ordinary incidents of prison life.” Sandin v.
Connor, 515 U.S. 472, 484 (1974). So we consider the typicality and
significance of the disciplinary sanctions ultimately imposed on Mr.
Barela.
These sanctions included a temporary loss of television (15 days) and
recreation privileges (45 days). These are common sanctions in prisons, so
they couldn’t possibly trigger a liberty interest. See, e.g., Grady v. Garcia,
506 F. App’x 812, 814-15 (10th Cir. 2013) (unpublished) (affirming the
award of summary judgment on an inmate’s due-process claims regarding
loss of time for television and recreation); Marshall v. Morton, 421 F.
App’x 832, 838 (10th Cir. 2011) (unpublished) (stating that “restrictions
on an inmate’s . . . recreation privileges are not different in such degree
and duration as compared with the ordinary incidents of prison life to
constitute protected liberty interests under the Due Process Clause”).
Mr. Barela was also put in restricted housing for fifteen days.
Placement in restricted housing can be considered significant and atypical
based on four factors:
1. the furtherance of a legitimate penological objective,
2. the existence of extreme conditions,
5 3. the potential extension of the prisoner’s confinement, and
4. the absence of a time restriction on the placement in restricted housing.
DiMarco v. Wyoming Dep’t of Corrs., 473 F.3d 1334, 1342 (10th Cir.
2007).
All of these factors weigh heavily against Mr. Barela. Authorities
had a legitimate reason to put Mr. Barela in restricted housing: They
needed to investigate the disciplinary charges. That investigation
proceeded quickly, so Mr. Barela ultimately spent only fifteen days in
restricted housing and wasn’t subjected to extreme conditions. Nor was his
confinement extended from the placement in restrictive housing. So no
fact-finder could reasonably infer a liberty interest from Mr. Barela’s
placement in restricted housing.
His placement in restricted housing coincided with the timing of Mr.
Barela’s commutation hearing. So he had to appear in restraints, which he
blames for the ultimate decision to deny commutation.
But commutation is a discretionary remedy that requires a
recommendation from the Parole Board and a favorable decision from the
Governor. W YO . S TAT . A NN . § 7-13-401(f); W YO . C ONST . art. IV, § 5.
Given the discretion of the Parole Board and the Governor, any effect on
the commutation hearing would not trigger a liberty interest. See, e.g.,
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) (concluding
6 that the Connecticut commutation statute does not create a protected
liberty interest because the statute does not require commutation); Parker
v. Dowling, 664 F. App’x 681, 682 (10th Cir. 2016) (unpublished) (stating
that the possibility of commutation did not create a liberty interest because
commutation was discretionary).
* * *
No reasonable jurist could find a protected liberty interest based on
the summary-judgment evidence. As a result, no reasonable jurist could
debate the correctness of the district court’s award of summary judgment
on the due-process claims. We thus deny a certificate of appealability on
these claims.
3. The Equal-Protection Claims
Mr. Barela also sought habeas relief based on a denial of equal
protection. The district court granted a certificate of appealability on these
claims, so we review them for the ultimate disposition.
The disposition largely turns on the remedies that Mr. Barela seeks
for the alleged denial of equal protection. The remedy of habeas corpus
ordinarily serves to require release from illegal confinement, attack future
confinement, or shorten the existing confinement. See Preiser v.
Rodriguez, 411 U.S. 475, 487 (1973) (release from present confinement or
attack future confinement); Palma-Salazar v. Davis, 677 F.3d 1031, 1035
(10th Cir. 2012) (shorten confinement).
7 But Mr. Barela didn’t seek any of these remedies for the denial of
equal protection. He instead requested expungement of his disciplinary
convictions, return of his personal property, reinstatement to his prior
position in the dog program, different housing, prison employment,
compensatory damages, and punitive damages. These are remedies
available in a civil rights suit 2 but not in a habeas action. See Preiser, 411
U.S. at 494 (concluding that damages are available in civil rights suits, not
habeas actions); Davis v. Fox, 701 F. App’x 715, 716 (10th Cir. 2017)
(unpublished) (concluding that a claim for retaliatory impoundment of
personal property cannot be brought in a habeas petition); Palma-Salazar,
677 F.3d at 1035–36 (concluding that habeas relief was unavailable to
obtain a change in prisoner housing). 3
As noted above, Mr. Barela also seeks expungement of his
disciplinary convictions. Expungement could conceivably boost his
2 The district court declined to recharacterize the habeas action as a civil rights suit, and recharacterization could have saddled Mr. Barela with unintended consequences. For example, he would have had to pay a higher filing fee in district court. See 28 U.S.C. § 1914(a). And dismissal for particular reasons could have restricted future opportunities to proceed in forma pauperis. 28 U.S.C. § 1915(g). Mr. Barela doesn’t challenge the district court’s decision to leave the action as one for habeas rather than recharacterize the action as a civil rights suit. 3 Like a change in housing, reinstatement in the dog program and prison employment involve only changes in confinement conditions, not the duration of confinement. So reinstatement in the dog program and prison employment are not available habeas remedies. 8 chances for a discretionary remedy like commutation or parole. But these
remedies are discretionary. See pp. 6–7, above (commutation); W YO .
C ONST . art. 3, § 53; W YO . S TAT . A NN . § 7-13-402(2) (parole). Given the
discretionary nature of these remedies, expungement wouldn’t necessarily
quicken Mr. Barela’s release. So expungement wouldn’t be an available
remedy in this habeas action. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
Given the unavailability of the requested remedies in a habeas action,
we affirm the award of summary judgment on the equal-protection claims.
4. Violation of the State Constitution
Mr. Barela also alleges violation of the state constitution. Parts of
these allegations involved a denial of due process; parts involved a denial
of equal protection. For all of these allegations, the district court awarded
summary judgment to the respondent. We agree with this ruling because
habeas relief cannot be based on violation of the state constitution. Davis
v. Reynolds, 890 F.2d 1105, 1109 n.3 (10th Cir. 1989).
5. Conclusion
We deny a certificate of appealability on the due-process claims and
affirm the award of summary judgment to the respondent on the claims
9 involving a denial of equal protection and violation of the state
constitution.
Entered for the Court
Robert E. Bacharach Circuit Judge