Fletcher v. Whitten et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RANDALL EDWARD FLETCHER, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-692-SLP
)
RICK WHITTEN, et al., 	)
)
Defendant(s). 	)
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se1 and in forma pauperis, filed this action
pursuant to 42 U.S.C. § 1983. 	(Docs. 1, 7).2 	United States District Judge Scott L. Palk
referred the matter to the undersigned Magistrate Judge for initial proceedings under 28
U.S.C. § 636(b)(1)(B), (C). (Doc. 4). The undersigned has reviewed the Complaint (Doc.
1) pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). 	As explained fully
below, 	it 	is 	recommended 	that 	the 	Court 	DISMISS 	Plaintiff’s 	Complaint 	without
prejudice.
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the court
cannot serve as Plaintiff’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2 Citations to Plaintiff’s filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
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I. 	The Court’s Duty to Screen Prisoner Complaints
Federal law mandates the screening of each complaint in a civil action filed by a
prisoner seeking redress from a governmental entity or an officer or employee of a
governmental entity and each case in which the plaintiff proceeds in forma pauperis. 28
U.S.C. §§ 1915A(a), 1915(e)(2). The court must dismiss a complaint or any portion of it
that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. Id.
In reviewing the complaint, the court must accept Plaintiff’s allegations as true and
construe them, and any reasonable inferences to be drawn from them, in the light most
favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10 th Cir. 2007). The court
must determine “whether the complaint includes enough facts to state a claim to relief that
is plausible on its face.” 	Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (internal
quotation marks and citation omitted). 	Bare legal conclusions in a complaint are not
assumed to be true; legal conclusions “must be supported by factual allegations” to state a
claim upon which relief may be granted. 	Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is
determined through a court’s application of “judicial experience and common sense.” Id.;
see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
II. 	The Complaint
A. 	The Parties, Alleged Violations of Law, and Requested Relief
Plaintiff is a state inmate currently incarcerated at the Great Plains Correctional
Center (“GPCC”). 	(Doc. 1, at 1); see also Oklahoma Department of Corrections OK
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Offender, https://okoffender.doc.ok.gov/ (OK DOC# 687347) (last visited Dec. 18, 2024).
In the Complaint, Plaintiff alleges prison officials at North Fork Correctional Center
(“NFCC”) and an NFCC contractor violated his constitutional rights. (Doc. 1, at 1-2). He
names the following defendants:
• 	Rick Whitten, who served as Warden of NFCC, in his individual and official
capacities;
• 	David Rogers, who served as Deputy Warden of NFCC, in his individual and
official capacities;
• 	Chris 	Mattingly, 	who 	was 	Correctional 	Sergeant 	and 	a 	Disciplinary
Coordinator at NFCC, in his individual and official capacities;
• 	Chrystal Bryant, who was the Correctional Case Manager of NFCC, in her
individual and official capacities;
• 	Mark Knutson, who was the Director Designee and Supervisor of the
Administrative 	Review 	Authority 	for 	the 	Oklahoma 	Department 	of
Corrections (“ODOC”), in his individual and official capacities; and
• 	Securus Technologies, a private company and sole provider of phone
services at NFCC.
(Id.)
Plaintiff alleges Defendants violated his rights to due process, to equal protection,
to free speech under the First Amendment, and to be free from cruel and unusual
punishment under the Eighth Amendment. 	(Id. at 3). 	He also alleges violations of
Oklahoma law. 	(Id.) 	As relief, Plaintiff seeks an order from this Court dismissing a
misconduct and directing Defendants to follow ODOC policy by correcting his record to
reflect the dismissal and removal of the “level drop from Level 4 to Level 1.” (Id. at 15).
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B. 	Factual Allegations
1. 	Plaintiff’s Disciplinary Proceedings
Plaintiff’s claims arise out of a disciplinary action taken against him and other
inmates at NFCC. 	He contends that on March 24, 2023, Defendant Mattingly issued an
offense report to ninety inmates, including Plaintiff, related to a three-way phone call made
on March 21, 2023, at 3:14 p.m. (Doc. 1, at 3). Although the subject matter of the offense
report was one phone call, Plaintiff asserts that a report was issued to every inmate who
used the Securus phone system on March 21, 2023. 	(Id.) 	Plaintiff contends Defendant
Mattingly failed to provide him with certain ODOC forms and failed to review the
evidence, as required by ODOC policy. (Id. at 8, 10).
At a subsequent hearing, Plaintiff asked to hear the alleged phone call, which he
contends should have been recorded under ODOC policy. 	(Id. at 5). 	But Defendant
Rogers, who served as disciplinary hearing officer, did not allow Plaintiff to hear the phone
call. 	(Id. at 3, 5). 	Plaintiff asserts Defendants Mattingly, Rogers, and Whitten did not
present any evidence to show Plaintiff conducted the three-way telephone call.3 (Id. at 4).
Plaintiff also contends Defendant Rogers failed to provide him with a required form and
should have let Plaintiff hear the phone call during the hearing process, as he requested.
(Id. at 9, 10).
Plaintiff contends that on administrative appeal, Defendant Knutson “did not
provide a meaningful appeal process by not reviewing the complete appeal and reviewing
3 Plaintiff asserts he received call logs from his wife after the hearing, showing a phone
call between them at 3:19 p.m. – not 3:14 p.m. (Doc. 1, at 3).
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the Disciplinary Hearing tape recording and listening to any of Plaintiffs phone calls made
on March 21, 2023 as required to perform due diligence.” (Id. at 4).
2. 	The Resulting Discipline
Plaintiff asserts his phone privileges were terminated for ninety-two days and his
security level was increased for four months. (Id. at 9). Plaintiff asserts Defendant Bryant
changed his classification level (from minimum security to medium security) without just
cause and without providing notice as required by ODOC policy. (Id. at 4, 6).
With regard to the change in security level, Plaintiff contends that he was entitled
to an adjustment review under ODOC procedures. (Id. at 7). But “by not conducting an
adjustment review with the Plaintiff present or even notifying Plaintiff and having him
present to sign the adjustment review[, the] Case Manager and the adjustment review
committee violated state law.” 	(Id.) 	Plaintiff also contends that by not receiving notice,
he was unable to grieve the issue within the allotted time. (Id.)
Plaintiff also asserts that “the ARA ordered the misconduct to be changed from X-
20 to A-22,” but over four-and-a-half months elapsed between the ARA issuing the order
and Plaintiff signing it. (Id. at 8). So, he contends Defendant Knutson did not follow state
law and ODOC policy in conducting his review of Plaintiff’s appeal and further did not
“ensur[e] the facility followed the orders of the ARA and conducted the ARA ordered
rehearing.” (Id. at 7-8).
Plaintiff contends Defendant Whitten did not follow policy “by not using ODOC
Form 060235G” and by not timely providing Plaintiff with a completed copy of the
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disciplinary hearing report. (Id. at 9). Further, Plaintiff contends the copy given to Plaintiff
did not reference any changes to the given sanctions. (Id.)
3. 	Plaintiff’s Attempt to Obtain Further Information
Plaintiff contends he requested all evidence and communications between staff,
Securus Technologies, and ODOC headquarters be saved. 	(Id. at 5). 	Additionally, on
February 26, 2024, he contends he attempted to request from Securus a written transcript
of any phone call Plaintiff completed on March 21, 2023. (Id.) The prison mailroom did
not send the letter to Securus, and Plaintiff had to resend the letter on May 1, 2024, by legal
mail through the law library. 	(Id.) 	Securus Technologies ultimately denied his request.
(Id. at 3). 	He contends Securus Technologies suppressed evidence and violated his due
process rights. (Id. at 11).
III. 	The Court Should Dismiss the Complaint for Failure to State a Claim.
A. 	Heck Likely Does Not Bar Plaintiff’s Claim.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court recognized that a
plaintiff may not seek remedy under § 1983 “for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid,” id. at 486, unless he or she first proves that the conviction
or sentence has already been invalidated through a state proceeding or a federal habeas
action, id. at 487. In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court applied
Heck to a § 1983 suit challenging a prison disciplinary proceeding, holding that the plaintiff
could not proceed under § 1983 because a ruling in his favor would necessarily invalidate
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his disciplinary conviction, including the revocation of his good time credits. 	Id. at 646,
648.
The Supreme Court further clarified this point in Muhammad v. Close, 540 U.S. 749
(2004), stating, “Heck’s requirement to resort to state litigation and federal habeas before
§ 1983 is not, however, implicated by a prisoner’s challenge that threatens no consequence
for his conviction or the duration of his sentence.” Id. at 751. The Muhammad Court also
suggested, but did not decide, that if a plaintiff’s claim cannot be addressed through a
habeas petition under 28 U.S.C. § 2241 — such as a claim seeking to overturn a disciplinary
decision that did not affect a prisoner’s duration of confinement — Heck may not apply.
Id. at 752 n.2. Following this lead, the Tenth Circuit held that “neither Heck nor Edwards
‘bar relief under § 1983 where . . . a prisoner challenges the procedures used to assess
certain disciplinary sanctions (other than a loss of good-time credits) that have no effect on
the duration of his confinement.’” Franklin v. Anaya, 2023 WL 6060560, at *4 (10th Cir.
Sept. 18, 2023) (quoting Requena v. Roberts, 552 F. App’x 853, 856 n.4 (10th Cir. 2014)).
Plaintiff does not assert that the actions of Defendants impact his good-time credits.
Nor could he, as he is serving life sentences for his state court convictions.4 Oklahoma law
mandates that no earned credits based upon an inmate’s class level “shall be credited to
4 	https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-
2013-2470&cmid=2990722 (Docket Sheet) (last visited Dec. 18, 2024). The undersigned
takes judicial notice of the docket sheets and related documents in Plaintiff’s state criminal
proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009)
(exercising discretion “to take judicial notice of publicly-filed records in [this] court and
certain other courts concerning matters that bear directly upon the disposition of the case
at hand”) (citation omitted).
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any inmate serving a sentence of life imprisonment.” Okla. Stat. tit. 57, § 138(A). 	So
Plaintiff’s change in security level did not have an impact on the duration of his
confinement, and thus Heck does not appear to bar this claim. However, the court “need
not decide whether Heck would bar [Plaintiff’s] § 1983 claims in the absence of a habeas
remedy because even if his claims are allowed to proceed, [Plaintiff] cannot demonstrate
that his constitutional rights were violated.” Harrison v. Morton, 490 F. App’x 988, 992
(10th Cir. 2012).
B. 	Plaintiff’s Due Process Claim Fails Because He Failed to Identify a
Liberty Interest.
The Fourteenth Amendment provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.”5 	U.S. Const. amend. XIV, § 1.
Procedural due process “requires a state to employ fair procedures when depriving a person
of a protected interest.” 	Benshoof v. Hall, No. CIV-22-527-R, 2022 WL 4287936, at *3
(W.D. Okla. July 29, 2022), report and recommendation adopted, 2022 WL 3586215
(W.D. Okla. Aug. 22, 2022). 	“An alleged violation of . . . procedural due process . . .
prompts a two-step inquiry: (1) whether the plaintiff has shown the deprivation of an
interest in ‘life, liberty, or property’ and (2) whether the procedures followed by the
government in depriving the plaintiff of that interest comported with ‘due process of law.’”
Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012) (quoting Ingraham v. Wright,
5 Plaintiff also argues Defendants violated his rights under the Fifth Amendment, but “the
Fifth Amendment’s due process guarantee applies when a plaintiff complains against
federal officials.” 	Garcia-Bengochea v. Utah Dep’t of Corr., 2024 WL 1745983, at *5
n.71 (D. Utah Apr. 23, 2024) (citing Porro v. Barnes, 624 F.3d 1322, 1326 (10th Cir.
2010)). So the Fifth Amendment does not apply to Plaintiff’s claims against state actors.
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430 U.S. 651, 673 (1977)). 	Plaintiff alleges he has been deprived of a more favorable
security classification and – for a period of ninety-two days – his telephone privileges.
(Doc. 1, at 4, 9). As further explained below, these are not protected liberty interests, so
Plaintiff’s claim fails at the first step.
An inmate’s liberty interest is implicated under the Due Process Clause if prison
restraints or conditions impose “atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” 	Sandin v. Conner, 515 U.S. 472, 484 (1995).
“Whether confinement ‘conditions impose such an atypical and significant hardship that a
liberty interest exists is a legal determination . . . .’” Ramirez v. Cooke, 2014 WL 7403288,
at *6 (D. Colo. Dec. 29, 2014) (quoting Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.
1997)).
Under this standard, the alleged change in Plaintiff’s security classification did not
amount to a liberty interest. 	Plaintiff argues that “when any inmate’s classification is
changed from a higher level to a lower level,” his or her “earned credits are . . . affected.”
(Doc. 1, at 7). 	And if Plaintiff’s earned credits were affected, he would have adequately
asserted a liberty interest. Wilson v. Jones, 430 F.3d 1113, 1120 (10th Cir. 2005) (“[A]n
inmate must be afforded due process prior to the revocation of his earned credits.”). But
as noted above, Plaintiff cannot earn such credits because he is serving a life sentence.
Okla. Stat. tit. 57, § 138(A); see also Gamble v. Evans, 165 F. App’x 698, 700 (10th Cir.
2006) (holding, in a Section 2241 habeas case, that because the petitioner was not entitled
to earned credits under Okla. Stat. tit. 57, § 138(A), he “enjoys no liberty interest in [earned
good time credits]”). And without earned credits at issue, Plaintiff’s security classification
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is not a liberty interest supporting a due process claim. 	See Marshall v. Morton, 421 F.
App’x 832, 838 (10th Cir. 2011) (“The privileges Marshall lost as a result of the reduction
to his inmate classification level also did not constitute protected liberty interests because
they did not impose ‘atypical and significant hardship[s] on [him] in relation to the ordinary
incidents of prison life.’”) (quoting Sandin, 515 U.S. at 484); White v. Crow, No. CIV-19-
00890-JD, 2022 WL 2158374, at *5 (W.D. Okla. June 15, 2022) (“[T]he change in Mr.
White’s inmate-classification level and privileges lost therefrom do not impose atypical
and significant hardships in relation to ordinary prison life.”).
Likewise, the alleged restriction on Plaintiff’s phone privileges for a period of
ninety-two days does not amount to a liberty interest. 	“[A]n inmate has no right to
unlimited telephone use . . . [but is i]nstead . . . subject to rational limitations in the face of
legitimate security interests of the penal institution. The exact nature of telephone service
to be provided to inmates is generally to be determined by prison administrators, subject to
court scrutiny for unreasonable restrictions.” Robinson v. Gunja, 92 F. App’x 624, 627-28
(10th Cir. 2004) (quoting Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994))
(internal citations omitted). 	Additionally, courts have determined that prisoners do not
have a liberty interest in telephone restrictions of similar length or longer than that alleged
by Plaintiff. See Coleman v. Long, 772 F. App’x 647, 648-50 (10th Cir. 2019) (determining
a plaintiff did “not derive a liberty interest in . . . telephone privileges from the
Constitution” where he alleged prison officials “revok[ed] his . . . telephone privileges for
one year without a hearing”); Gauthier v. Hunt, No. CIV-20-1153-J, 2021 WL 2405249,
at *7-8 (W.D. Okla. Feb. 19, 2021) (finding “Plaintiff does not have a protected liberty
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interest in . . . telephone privileges absent any state law that establishes this interest” where
Plaintiff alleged he was prohibited from “telephone . . . privileges for 90 days without due
process of law”), report and recommendation adopted, 2021 WL 1886297 (W.D. Okla.
May 11, 2021). Thus, Plaintiff does not state a claim for a procedural due process violation
based on a loss of phone privileges.
Finally, Plaintiff asserts Defendants failed to follow ODOC policy, (Doc. 1, at 5-9),
including an allegation that the length of time his phone privileges were revoked lasted
longer than the maximum time allowed by ODOC policy. 	(Id. at 9). 	But “prison
disciplinary 	procedures 	do 	not 	create 	constitutionally 	protected 	liberty 	interests.”
Harrison, 490 F. App’x at 994. Thus, an alleged violation of ODOC policy does not give
rise to a due process claim.6
For the reasons stated above, the undersigned finds that Plaintiff failed to state a due
process claim and it should be dismissed without prejudice.
C. 	Plaintiff Failed to State an Equal Protection Claim Because He Has Not
Alleged He Was Treated Differently Than Anyone Else.
“The Equal Protection clause is ‘essentially a direction that all persons similarly
situated should be treated alike.’” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127,
1146 (10th Cir. 2023) (quoting A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1166 (10th
6 The alleged violations of ODOC policy are also not cognizable as standalone claims under
Section 1983. 	See Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (“To the
extent Gaines seeks relief for alleged violations of state statutes and prison regulations,
however, he has stated no cognizable claim under § 1983.”); Heidel v. Mazzola, 851 F.
App’x 837, 840 (10th Cir. 2021) (“[T]he officers’ failure to follow jail procedures does not
equate with a constitutional violation.”).
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Cir. 2016)). “To state a claim for relief under the Equal Protection clause, a plaintiff must
allege the existence of purposeful discrimination against [him]self, as a class of one or with
respect to a group, causing an adverse effect.” Id. “Conclusory allegations without facts
that refer to a particular person or persons treated differently are insufficient to state a
claim.” 	Lucas, 58 F.4th at 1146. 	This “pleading requirement of an allegation that a
similarly situated person was treated differently applies both when the plaintiff challenges
a government action that discriminates based on membership in a non-protected class or
membership in a ‘class of one.’” Brown v. Montoya, 662 F.3d 1152, 1173 (10th Cir. 2011)
(internal citation omitted).
Plaintiff does not contend he has been treated differently than anyone else. Instead,
he contends a misconduct was given to “every inmate who used the Securus phone system
at any time during the day of March 21, 2023,” whether or not they made an improper
phone call. (Doc. 1, at 3). Plaintiff thus alleges he was treated the same as everyone else.
So, Plaintiff has not stated a claim under the Equal Protection Clause.
D. 	Plaintiff’s First Amendment Claim is Moot.
1. 	The Court Lacks Subject-Matter Jurisdiction to Hear Moot
Cases.
“Because federal courts . . . are ‘courts of limited subject-matter jurisdiction,’
‘[they] may only hear cases when empowered to do so by the Constitution and by act of
Congress.’” Shields L. Grp., LLC v. Stueve Siegel Hanson LLP, 95 F.4th 1251, 1279 (10th
Cir. 2024) (quoting Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015)). “One
fundamental principle of our subject-matter jurisdiction is the ‘constitutional limitation of
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federal-court jurisdiction to actual cases or controversies.’” Id. (citing Brown v. Buhman,
822 F.3d 1151, 1163 (10th Cir. 2016)). The “case-and-controversy requirement is . . . the
basis for [the] mootness doctrine.” Id. at 1280.
“A suit becomes moot when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome.” Id. (quoting Brown, 822 F.3d at 1165).
“Thus, ‘[t]he crucial question is whether granting a present determination of the issues
offered will have some effect in the real world’” or “‘when a plaintiff no longer suffers
actual injury that can be redressed by a favorable judicial decision.’” Id. (quoting Brown,
822 F.3d at 1165-66). “Redressability considers whether the requested relief will redress
the alleged injury.” 	We the Patriots, Inc. v. Grisham, 119 F.4th 1253, 1257 (10th Cir.
2024).
“Without a live, concrete controversy, [the court] lack[s] jurisdiction to consider
claims no matter how meritorious.” 	Shields L. Grp., LLC, 95 F.4th at 1281 (quoting Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010)).
“[T]he plaintiff bears the burden of establishing standing at the outset of the litigation.”
Jibril v. Mayorkas, 101 F.4th 857, 870 (D.C. Cir. 2024) (citing Friends of the Earth, Inc.
v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).
2. 	Plaintiff’s First Amendment Claim is Moot.
While Plaintiff alleges Defendants violated the First Amendment, he did not identify
the specific conduct in support of this claim. However, “[m]ost courts have found prisoners
have 	a 	limited 	First 	Amendment 	right 	to 	telephone 	access, 	subject 	to 	reasonable
limitations.” 	Blackbear v. Butler Cnty. Jail, 2018 WL 741794, at *4 (D. Kan. Feb. 7,
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2018). 	Liberally construing the Complaint, the undersigned finds that Plaintiff’s First
Amendment claim based on telephone restrictions is moot and should be dismissed without
prejudice for lack of subject matter jurisdiction.
Plaintiff asserts his phone privileges were terminated for ninety-two days. (Doc. 1,
at 9). But Plaintiff’s requested relief is not related to his ability to utilize prison telephone
systems. Instead, Plaintiff requests the dismissal of his misconduct, an amendment to his
record reflecting such dismissal, and the restoration of his security level. (Id. at 15). So a
favorable judicial decision would not offer any real world relief as it relates to telephone
privileges.
Further, Plaintiff asserted in a document attached to the Complaint that he “already
served all sanctions issued by the disciplinary hearing officer.” (Id. at Ex. 1, at 13). “Past
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O’Shea
v. Littleton, 414 U.S. 488, 495 1974); see also Jordan v. Wiley, 477 F. App’x 525, 528
(10th Cir. 2012) (“The prospective injunctive relief Mr. Jordan seeks barring application
of these regulations to him in the future would provide no remedy for the harm he claims
to have suffered from their past application.”); Mohamed v. Jones, 2022 WL 523440, at
*15 (D. Colo. Feb. 22, 2022) (“Prospective injunctive relief will simply not remedy the
alleged harms previously inflicted on Plaintiff.”), report and recommendation adopted
2022 WL 22353363 (D. Colo. May 18, 2022), reconsideration denied, 2022 WL 22353362
(D. Colo. Oct. 24, 2022), appeal dismissed, 100 F.4th 1214 (10th Cir. 2024). 	Because
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Plaintiff has not alleged continuing restrictions on his phone privileges, injunctive relief
would not provide a remedy.
Finally, the alleged deprivation of Plaintiff’s telephone privileges occurred at
NFCC, but he is now housed at GPCC. Plaintiff’s transfer is another basis for finding the
request for injunctive relief moot. 	See Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir.
2011) (“Where the prisoner’s claims for declaratory or injunctive relief relate solely to the
conditions of confinement at the penal institution at which the prisoner is no longer
incarcerated, courts have concluded that they are unable to provide the prisoner with
effective relief.”); Bell v. Leavenworth U.S. Penitentiary, 2024 WL 3360419, at *3 (D.
Kan. July 10, 2024) (“[A]n inmate’s transfer from one prison to another generally renders
moot any request for injunctive relief against the employees of the original prison
concerning the conditions of confinement.”) (citing Green v. Branson, 108 F.3d 1296,
1299-1300 (10th Cir. 1997)).
A narrow capable-of-repetition exception to the mootness doctrine exists. See
McApline v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999). But Plaintiff has not shown
that the deprivation of his telephone privileges – relating to conduct solely at NFCC – is
capable of repetition at his new facility. See, e.g.. Guion v. Spurlock, 2015 WL 394020 at
*11-12 (D. Colo. Jan. 29, 2015) (unpublished op.) (holding that mere theoretical possibility
that prisoner would be transferred back to the prison was insufficient to give rise to
application of the “capable-of-repetition” exception).
Because Plaintiff’s First Amendment claim is moot, it should be dismissed without
prejudice for lack of subject matter jurisdiction. 	See Brown v. Buhman, 822 F.3d 1151,
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1165, 1179 (10th Cir. 2016) (explaining that “[m]ootness deprives federal courts of
jurisdiction” 	and 	lack 	of 	subject-matter 	jurisdiction 	results 	in 	a 	dismissal 	without
prejudice).
E. 	Plaintiff Did Not Allege Sufficient Facts to State a Claim for Cruel and
Unusual Punishment.
Plaintiff contends Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment. (Doc. 1, at 4). Plaintiff appears to argue that the discipline
imposed against him – change in security level and telephone restrictions – amounted to
cruel and unusual punishment. 	(Id. at 5). 	Because these actions do not amount to cruel
and unusual punishment, this claim should be dismissed without prejudice for failure to
state a claim.
“To 	succeed 	on 	an 	Eighth 	Amendment 	claim, 	a 	plaintiff 	must 	allege 	facts
demonstrating that ‘the deprivation is sufficiently serious’ and that prison officials acted
with ‘deliberate indifference to inmate health or safety.’” Fogle v. Pierson, 435 F.3d 1252,
1260 (10th Cir. 2006) (quoting Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 809 (10th
Cir.1999)); see also DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (“To prevail
on a ‘conditions of confinement’ claim under the Eighth Amendment, an inmate must
establish that (1) the condition complained of is ‘sufficiently serious’ to implicate
constitutional protection, and (2) prison officials acted with ‘deliberate indifference’ to
inmate health or safety.”) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Plaintiff
did not allege facts suggesting the discipline imposed was “sufficiently serious.”
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“[T]he denial of telephone . . . privileges does not amount to cruel and unusual
punishment.” 	Fantone v. Herbik, 528 F. App’x 123, 128 n.5 (3d Cir. 2013); see also
Alarcon v. Heredia, 2018 WL 1157772, at *6 (D.N.M. Mar. 2, 2018) (finding a denial of
“access to a telephone” is not the “type of harm . . . generally proscribed by the Eighth
Amendment”), report and recommendation adopted, 2018 WL 1441193 (D.N.M. Mar. 21,
2018). 	Additionally, even if the restriction on Plaintiff’s telephone privileges were
actionable under the Eighth Amendment, the subsequent restoration of his telephone
privileges makes moot his request for injunctive relief. See supra, § III.D.2 (discussion of
First Amendment claim).
Plaintiff’s change in security classification also does not amount to an Eighth
Amendment violation. 	See Tucker v. Scott, 1991 WL 99015, at *1 (10th Cir. 1991)
(rejecting the plaintiff’s claim that “higher security classification constituted cruel and
unusual punishment” 	because it fell “far short of the level of conduct prohibited by the
Eighth Amendment”); Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (holding the
“mere act of classification” does not amount to an Eighth Amendment violation); Perez v.
Fed. Bureau of Prisons, 229 F. App’x 55, 56-57 (3d Cir. 2007) (holding a changed security
classification which limited the plaintiff to one social telephone call per week did not
violate the Eighth Amendment); Cash v. Reno, 134 F.3d 370 (6th Cir. 1997) (holding an
Eighth Amendment claim frivolous because the plaintiff could not “show that the
defendants’ decision to classify him at a higher security level than he expected subjected
him to unnecessary and wanton infliction of pain or that the defendants exposed Cash to
conditions below contemporary standards of decency”) (internal quotation marks and
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citations omitted). 	Thus, Plaintiff also failed to state an Eighth Amendment claim based
on the unfavorable change to his security classification.
F. 	The 	Court 	Should 	Not 	Exercise 	Supplemental 	Jurisdiction 	Over
Plaintiff’s State Law Claims
Plaintiff alleges the violation of state law. (Doc. 1, at 15) (citing Okla. Stat. tit. 57,
§§ 138, 564.1). Having determined the Court should dismiss Plaintiff’s federal claims, the
undersigned recommends the Court decline to exercise supplemental jurisdiction over his
state law claims. 	See 28 U.S.C. § 1367(c)(3) (permitting district courts to decline to
exercise supplemental jurisdiction where it “has dismissed all claims over which it has
original jurisdiction”); Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151,
1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the court may, and
usually should, decline to exercise jurisdiction over any remaining state claims.”).
IV. 	Recommendation and Notice of Right to Object
Based on the foregoing, the undersigned recommends that the Court DISMISS
Plaintiff’s Complaint without prejudice. (Doc.1). The undersigned advises Plaintiff of
his right to file an objection to this Report and Recommendation with the Clerk of
Court on or before January 8, 2025, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to
this Report and Recommendation waives his right to appellate review of both factual and
legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge and terminates the referral unless and until the matter is re-referred.
ENTERED this 18th day of December, 2024.
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