UNITED STATESCOURT OF APPEALSTENTH CIRCUITSTEPHEN JOE HOOVER,

Plaintiff - Appellant,

v.

FRANK KEATING, Governor;BEVERLY YOUNG, Board ofCorrections Employee; MICHAELROARK; DAVID HENNEKE; JAMESBOYKIN; HUGH REED; RANDYWRIGHT; ROBERT RAINEY, Boardof Corrections Members; DEBBIEMAHAFFEY, Warden for OklahomaDepartment of Corrections; SHAWNPRICE; JOEL SUTTON; STEVEBEARS, Captains for OklahomaDepartment of Corrections; RANDYCOOK, Deputy Warden of OklahomaDepartment of Corrections; MIKEJACKSON, Physician for OklahomaDepartment of Corrections,

Defendants - Appellees.No. 02-5136No. 01-CV-281-B(J)(N.D. Oklahoma)ORDER AND JUDGMENT(*)Before EBEL, LUCERO, andO'BRIEN, Circuit Judges.

Stephen J. Hoover, an Oklahoma state prisoner, filed suit against GovernorFrank Keating; Board of Corrections employee Beverly Young; Board ofCorrections members Michael Roark, David Henneke, James Boykin, Hugh Reed,Randy Wright and Robert Rainey; Warden Debbie Mahaffey; Captains ShawnPrice, Joel Sutton and Steve Bears; Deputy Warden Randy Cook; and Physicianfor the Oklahoma Department of Corrections Mike Jackson, alleging violations ofthe Americans with Disabilities Act, 42 U.S.C. § 12132, and the Eighth andFourteenth Amendments, pursuant to 42 U.S.C. § 1983. The district court grantedsummary judgment against Hoover, and Hoover appeals. Exercising jurisdictionunder 28 U.S.C. § 1291, we affirm. I

During Hoover's incarceration at the Dick Conner Correction Center("DCCC"), he received disciplinary citations for disobeying housing assignmentson three occasions: April 18, May 2, and May 16, 2000. In refusing the housingassignments, Hoover specified that he would not cell with a black inmate. Afterhearings held for each incident, Hoover received disciplinary segregation andfines. Hoover appealed each time, arguing that the cell assignments constituted adanger to him. He argued that the placement of black inmates with white inmatescould result in a prison riot. At no time, however, did Hoover provide any detailsregarding his prospective cell mates, nor did he identify specific facts thatsupported his allegations. Consequently, each of his appeals was denied by bothWarden Mahaffey and Director/Designee Guilfoyle.

In connection with these incidents, Hoover also filed grievance reports onApril 28 and May 16, requesting dismissal of the misconduct citations and otherrelief. He reiterated his assertions that the cell assignments constituted a dangerto him and suggested that any policy that placed black inmates with white inmateswas dangerous. In denying relief on May 9 and June 2, Warden Mahaffey pointedout that Hoover failed to provide any documentable evidence of security concernsto justify his refusal to cell with a particular inmate, noted that race would, underno circumstances, be used as the basis for making housing assignments, andexplained that misconduct citations were not grievable.

On June 16, Hoover appealed his grievance to Director/Designee Guilfoyle.In this appeal, Hoover abandoned the argument that interracial housingassignments posed a danger to his safety and instead claimed that his refusal tochange cells was based on a medical condition under which he could occupylower bunks only.(1) Based on this medicalcondition, he argued that he should nothave been placed in random housing and that the documented evidence of hiscondition warranted reversal of his disciplinary citations. In attempting toexplain why this evidence was not previously submitted, Hoover argued thatalthough the medical condition was noted on his medical jacket on April 5, 2000,he was not aware of this at the time he was assigned to a random cell on May 2. On June 22, Director/Designee Guilfoyle denied the appeal on the ground thatmisconduct citations are not grievable. On May 10, Hoover was transferred to theSupermax H-Unit at the Oklahoma State Penitentiary in McAlester, presumablydue to his continued refusal to comply with housing assignments.

Based on these incidents, Hoover filed suit under 42 U.S.C. § 1983,alleging violations of his rights under the Eighth and Fourteenth Amendments,and under 42 U.S.C. § 12132, alleging violations of his rights under theAmericans with Disabilities Act. The district court granted summary judgment tothe defendants, finding that the undisputed facts provided no basis for Hoover'sclaims. Hoover v. Keating, No. 01-CV-281-B(J) (N. D. Okla. Jul. 29, 2002). II

We review the district court's grant of summary judgment de novo. Wolfv. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment isappropriate when there is no genuine issue as to any material fact and the movingparty is entitled to judgment as a matter of law. Id. Because Mr. Hooverproceeds pro se, we must liberally construe his pleadings. McBride v. Deer, 240F.3d 1287, 1289 (10th Cir. 2001). A

Hoover argues that his refusals to obey housing orders were justified by hismedical condition and that the issuance of misconduct citations on the basis ofthese refusals violated his rights under the Americans with Disabilities Act("ADA"). Title II of the ADA provides:

Subject to the provisions of this subchapter, no qualified individualwith a disability shall, by reason of such disability, be excluded fromparticipation in or be denied the benefits of the services, programs,or activities of a public entity, or be subjected to discrimination byany such entity.

42 U.S.C. § 12132. In support of his claim, Hoover points to his HealthSummary, signed by Dr. Mike Jackson on April 5, 2000, recommending Hooverbe assigned to a lower bunk only. Hoover cites no evidence, however, suggestingthat defendants' conduct in imposing the housing assignment or in disciplininghim for his disobedience to orders was motivated by this alleged disability. Infact, it was not until after these incidents occurred that Hoover learned about theHealth Summary recommendation and brought it to defendants' attention. Although the recommendation appeared in Hoover's medical jacket as early asApril 5, we are reluctant to conclude defendants had knowledge of it until Hooverbrought it to their attention. Hoover presents no evidence that the defendants hadreason to know about his disability, much less that their conduct was motivated"by reason of [his] disability." Rather, the evidence indicates that Hoover'srefusal to obey orders was based on the race of his newly assigned cell mate, andthat he provided no evidence that this constituted a specific security risk to him. Under prison policy, race does not justify a refusal to obey housing assignments,see Inmate Housing Policy, D.O.C. OP-030102, Pt. I (B) ("Under nocircumstances will race, color, or ethnic origin be the sole basis for makinghousing assignments."), and any refusals based on alleged security risks must besupported by documented evidence, id. at Pt. V (A) ("If an inmate refuses ahousing/cell assignment for no documentable reason of safety, security or health .. . an offense report may be prepared."). Consequently, defendants' decision todiscipline Hoover for his conduct was proper and did not violate the ADA. B

In addition to the ADA claim, Hoover presents several due process claims. First, he argues that defendants' failure to review his housing assignment, inalleged violation of Department of Corrections policy, deprived him of dueprocess. The policy he cites states: "Circumstances which may warrant a reviewof housing assignment status may include, but not be limited to, the following:. . . (b) An inmate is convicted of a disciplinary offense that throughinvestigationis determined to be racially motivated." D.O.C. OP-030102, Pt. IV (A)(1)(b)(emphasis added). Even if this court concluded that a prison's violation of itsown stated policies and procedures violates due process, an issue we need notreach here, the permissive language of the cited provision demonstrates thathousing assignment reviews are not guaranteed. Consequently, there is no basisfor Hoover's contention that the defendants' failure to review the housingassignment constituted a due process violation.

Second, Hoover argues that his assignment to random housing rather thanrestrictive housing, in alleged violation of prison policies, deprived him of dueprocess. The Department of Corrections Policy states: "An inmate must accept ahousing assignment unless it is determined that documentable safety, security orhealth condition [sic] exists." Id. at Pt. V (B)(2). In his grievance appeal datedJune 16, he cited this provision and underlined "documentable" and "health." Presumably, he interprets this provision to justify his conduct on the threeoccasions, and consequently, to prohibit prison administrators from discipliningthis conduct. Nevertheless, even if we agreed that this provision affirmativelypermits inmates to refuse housing assignments on the basis of a health conditionand prohibits prison administrators from punishing inmates for such refusals, thisargument would not assist Hoover. As discussed earlier, the evidence shows thathis refusals were motivated not by his health condition, but rather by his dislikefor his cell mates. Moreover, even if his refusals were motivated by his healthcondition requiring a bottom bunk, there is no evidence that the housingassignments required him to occupy a top bunk on any of the three occasions. Consequently, Hoover's conduct was not justified, and the defendants actedproperly in disciplining him.

Third, Hoover argues that the disciplinary proceedings violated hisprocedural due process rights. Under Mitchell v. Maynard, 80 F.3d 1433, 1445(10th Cir. 1996), we held that prison disciplinary proceedings satisfy proceduraldue process requirements as long as advance written notice of the charges areprovided, the inmate is given an opportunity to call witnesses and presentevidence, and a written statement of the evidence relied on and the reasons for thedisciplinary action are provided. Hoover received advanced written notice ofeach of the disciplinary charges, an opportunity to call witnesses and presentdocumentary evidence in his defense, and a written statement explaining thedecisions. Consequently, the requirements of procedural due process have beensatisfied and we affirm the district court's dismissal of Hoover's due processclaims.C

Finally, Hoover alleges that the defendants' actions constituted cruel andunusual punishment in violation of the Eighth Amendment. In Farmer v.Brennan, 511 U.S. 825, 834 (1994), the Supreme Court articulated the standardfor determining when prison conditions constitute cruel and unusual punishmentin violation of the Eighth Amendment:

First, the deprivation alleged must be, objectively, sufficientlyserious; a prison official's act or omission must result in the denial ofthe minimal civilized measure of life's necessities. . . . The secondrequirement follows from the principle that only the unnecessary andwanton infliction of pain implicates the Eighth Amendment. Toviolate the Cruel and Unusual Punishments Clause, a prison officialmust have a sufficiently culpable state of mind. In prison-conditionscases that state of mind is one of deliberate indifference to inmatehealth of safety.

Id. (quotation omitted). Hoover's Eighth Amendment charge, liberallyconstrued, may be interpreted to challenge three actions by the prisonadministrators: (1) the insistence that he accept the housing assignmentnotwithstanding his health condition; (2) the insistence that he accept the housingassignment notwithstanding the potential danger posed by the prospective cellmate; and (3) the order to transfer Hoover to the higher security prison.

As to the first allegation, even if we accepted the proposition that housingassignments that ignore an inmate's health condition constitute sufficientlyserious deprivations, Hoover has presented no evidence that the defendantspossessed the requisite state of mind of deliberate indifference. The facts do notindicate that the defendants were aware of Hoover's health condition until hebrought it to their attention well after the housing assignments were imposed. Therefore, he cannot show that defendants acted with a deliberate indifference tohis health.

As to the second allegation, Hoover presents no evidence suggesting thatplacing him with the prospective cell mates posed a substantial risk of seriousharm. Even if each placement posed a security risk, Hoover presents no evidencethat the defendants were aware of any such risk beyond Hoover's broad assertionsthat a "prison riot" could ensue if inmates of different races continued to be celledtogether, and he offers no evidence that defendants were deliberately indifferentto such a risk.

Hoover's third challenge--that his removal to a higher security prisonviolated his Eighth Amendment rights--may be better understood as a due processclaim, because there is no ground to assert that the transfer constituted a seriousdeprivation or that it occurred with deliberate indifference to Hoover's safety. Nevertheless, even under a due-process-clause analysis, this claim must fail.Under Olim v. Wakinekona, 461 U.S. 238, 245 (1983), an inmate has nojustifiable expectation that he will be incarcerated in any particular prison. InMeachum v. Fano, 427 U.S. 215, 224­25 (1976), the Supreme Court stated:

The Constitution . . . does [not] guarantee that a convicted prisonerwill be placed in any particular prison . . . . The conviction hassufficiently extinguished the defendant's liberty interest to empowerthe State to confine him in Any Of [sic] its prisons. . . . That life inone prison is much more disagreeable than in another does not initself signify that a Fourteenth Amendment liberty interest isimplicated when a prisoner is transferred to the institution with themore severe rules.

Id. Thus, Hoover's transfer does not raise a due process concern. III

Because we conclude that defendants did not violate Hoover's rights, we donot address defendants' claims of immunity. The judgment of the district court isAFFIRMED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. The case is unanimously orderedsubmitted without oral argument pursuantto Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment isnot binding precedent, except under the doctrines of law of the case, res judicata,and collateral estoppel. The court generally disfavors the citation of orders andjudgments; nevertheless, an order and judgment may be cited under the terms andconditions of 10th Cir. R. 36.3.

1. In his brief, Hoover attaches astatement suggesting that he raised thedisability claim earlier than June 16. This statement, dated June 9 and received inthe Administrative Review office on June 15, expresses Hoover's intent to appeal. (Appellant's Br., Att. A, p.3.) It remains unclear whether this document sought toappeal the denial of Hoover's grievance, or to appeal the affirmation of one of hismisconduct citations. Even if we credit the reliability of the document, whichdoes not appear in the record, it shows only that the defendants had notice ofHoover's disability as early as June 9.