Lusero v. Welt

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

LO REN R. LU SER O,

Plaintiff-Appellant, No. 06-1395
v. (D . Colo.)
JOHN W ELT, Correctional (D.C. No. 06-CV-1214-ZLW )
Lieutenant; PAM PURD UE,
C orrectional Lieutenant; C LY DE
STAHL, Correctional Chairperson CM
III; CORRECTIONAL OFFICER, of
Delta Correctional Facility of Housing
Unit-5 (3rd Shift), Nov. 23, 2005;
CAPTAIN, Delta Correctional Facility
(3rd Shift), N ov. 23, 2005; D EAN
CONROY, Colorado Assistant
A ttorney G eneral; JU D G E C RG,
District Judge of Delta County,
Colorado; J. M ETZGER, Colorado
Appellate Judge,

Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before M U R PHY , SE YM OU R , and M cCO NNELL, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 In an action brought under 42 U.S.C. § 1983, Plaintiff Loren R. Lusero, a

Colorado prisoner proceeding pro se, alleges that prison officials violated his

rights under the Eighth and Fourteenth Amendments by placing him in

administrative segregation after he informed them that another prisoner had

threatened and attacked him. The district court dismissed the action, finding M r.

Lusero’s claims legally frivolous. W e affirm in part and reverse in part.

BACKGROUND

In August 2006, M r. Lusero filed an amended complaint under 42 U.S.C. §

1983 alleging that various prison officials violated his due process and equal

protection rights and inflicted cruel and unusual punishment by placing him in

administrative segregation following his request for protection from another

inmate w ho allegedly threatened and assaulted him. 1 After granting M r. Lusero

leave to proceed in form a pauperis, the district court found his claims legally

frivolous and dismissed his complaint under 28 U.S.C. § 1915(e)(2)(B).

Addressing M r. Lusero’s due process claim, the district court held that the

“Constitution does not entitle [M r. Lusero] to any procedural protection either

before or after he was placed in administrative segregation because he does not

1
In his complaint, M r. Lusero also challenged the Delta County District
Court’s decision to dismiss his state habeas corpus petition. The federal district
court noted that “M r. Lusero may not challenge in this civil rights action a state
court judgment in a habeas corpus action.” R. Vol. I, Doc. 18, at 3. M r. Lusero
does not challenge this ruling on appeal.

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have a protected liberty interest in his classification or placement.” R. Vol. I,

Doc. 18, at 4. The court recognized that prison conditions can implicate a

protected liberty interest if they create an “‘atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life,’” but found that M r.

Lusero failed to allege any such conditions in his case. Id. (quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995)). The court also found “no indication that M r.

Lusero’s placement in administrative segregation inevitably will affect the length

of his confinement.” R. Vol. I, Doc. 18, at 4.

The district court also found frivolous M r. Lusero’s claim that his

placement in administrative segregation subjects him to cruel and unusual

punishment. The court noted that: (1) a prisoner must demonstrate “‘extreme

deprivations . . . to make out a conditions-of-confinement claim,’” id. at 5

(quoting Hudson v. M cM illian, 503 U.S. 1, 9 (1992)); (2) that “[i]n the absence

‘of a specific deprivation of a human need, an Eighth Amendment claim based on

prison conditions must fail,’” id. (quoting Shifrin v. Fields, 39 F.3d 1112, 1114

(10th Cir. 1994)); and (3) that a prisoner must show “Defendants acted with

deliberate indifference,” that is, that the prison official “‘knows that inmates face

a substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it,’” id. (quoting Farmer v. Brennan, 511 U.S. 825,

847 (1994)). Finding that M r. Lusero failed to allege that the Defendants had

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knowledge of a risk of serious harm, the court dismissed his Eighth Amendment

claim.

As to M r. Lusero’s equal protection claim, the court noted that it “‘need

accept as true only the plaintiff’s w ell-pleaded factual contentions, not his

conclusory allegations.’” Id. at 6 (quoting Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991)). The court found that M r. Lusero’s equal protection claim

consisted only of “vague and conclusory allegations,” id., void of any factual

support, and therefore dismissed it.

D ISC USSIO N

As with his complaint, M r. Lusero’s filing before this Court is not a model

of clarity. Because he proceeds pro se, however, we construe his claims and

allegations liberally. 2 Hunt v. U phoff, 199 F.3d 1220, 1223 (10th Cir. 1999);

Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). W e review the district

court’s conclusions of law de novo. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th

Cir. 2006).

W e turn first to M r. Lusero’s due process claims. The necessary predicate

to a due process claim is a deprivation of a protected interest. In general,

“administrative segregation is the sort of confinement that inmates should

reasonably anticipate receiving at some point in their incarceration,” Hewitt v.

2
W e read M r. Lusero’s “Amended Complaint” as merely adding defendants
and allegations to his original complaint and not as superseding it. W e thus look
to both filings to determine the claims and allegations he raises.

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H elm s, 459 U.S. 460, 468 (1983). Such confinement therefore does not typically

implicate a protected liberty interest. In Sandin v. Conner, however, the Supreme

Court held that administrative segregation may implicate a liberty interest

protected by the Due Process Clause if it “imposes [an] atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life,” 515

U.S. at 484, or if it inevitably increases the duration of the sentence imposed. Id.

at 487; Wilson v. Jones, 430 F.3d 1113, 1120–21 (10th Cir. 2005). The district

court dismissed M r. Lusero’s due process claim on the ground that his segregation

satisfied neither of these standards.

Turning first to the issue of whether M r. Lusero alleged that his segregation

imposed an atypical and significant hardship, we believe that he did allege that

the length of his segregation imposed such a hardship. In his initial complaint,

M r. Lusero averred that he has been in administrative segregation since

November 23, 2005, R. Vol. I, Doc. 3, at 3, and argued that “the magnitude of

plaintiff’s deprivation of his liberty from the general prison population is clearly

[a] wrong protected by the [D]ue [P]rocess [C]lause,” id. at 6(A). And in his

“Amended Complaint,” M r. Lusero stated that “there was no purpose for

indeterminate segregation from the general prison population.” Id., Doc. 14, at

7–8 (emphasis added). He also argued that “defendants[’] ‘deliberate negligence’

helped contribute to illegal continued segregation that should have been

‘temporary’ that maliciously got turned into ‘punitive segregation.’” Id. at 10

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(emphasis added). W e construe these statements as allegations that he has been in

indefinite or indeterminate segregation since November, 2005, when a typical

segregation in his circumstances would have been only temporary.

W e have cautioned that “a district court errs in sua sponte dismissing a

prisoner’s due process claim under § 1915 if it does not have sufficient evidence

before it to fully address both the duration and degree of the plaintiff’s

restrictions as compared with other inmates.” Trujillo v. W illiams, 465 F.3d

1210, 1225 (10th C ir. 2006) (internal quotation marks omitted). W hile we

recognize that the plaintiff’s allegations in Trujillo were more specific than those

presented by M r. Lusero— in Trujillo the plaintiff “specifically allege[d] that he

spent over 750 days in segregation and that other inmates remain in segregation

for the most serious offenses for only 180 days,” id.— we think M r. Lusero’s

assertions were at least sufficient to avoid dismissal for frivolousness. To be

dismissed as frivolous under § 1915, a complaint must “lack[] an arguable basis

either in law or in fact.” N eitzke v. Williams, 490 U.S. 319, 325 (1989). That

threshold has not been met here. M r. Lusero has alleged that he sought protection

from another inmate and was thus placed into administrative segregation,

presumably for his own safety. For reasons not entirely clear at this point, this

segregation has continued, apparently indefinitely— a situation that his complaint,

read generously, alleges is atypical and significant.

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 If it turns out that a protected liberty interest is implicated in this case, we

note that “the process which is due under the United States Constitution is that

measured by the [D]ue [P]rocess [C]lause, not prison regulations.” Brown v.

Rios, No. 06-1210, 2006 W L 2666058, at *2 (10th Cir. Sept. 18, 2006)

(unpublished) (citing Cleveland Bd. of Educ. v. Louderm ill, 470 U.S. 532, 541

(1985); Hulen v. Yates, 322 F.3d 1229, 1247 (10th Cir. 2003); Shakur v. Selsky,

391 F.3d 106, 119 (2d Cir. 2004)) 3 ; see also Conner, 515 U.S. at 481–82 (noting

that prison regulations “primarily designed to guide correctional officials in the

administration of a prison” are “not designed to confer rights on inmates”). Thus,

although M r. Lusero contends that prison officials violated prison regulations in

the course of placing him in segregation, that fact alone would not necessarily

constitute a due process violation. Instead, he would need to demonstrate that

officials ran afoul of the procedural requirements enunciated in Wolff v.

M cDonnell, 418 U.S. 539, 563–66 (1974). W e note that M r. Lusero’s district

court filings, as well as his filing on appeal, seem to challenge the sufficiency of

the evidence presented at his disciplinary hearing, see e.g., R. Vol. I, Doc. 3, at 6,

6(A ); id., Doc. 14, at 9, 11— a claim that deserves attention should he proceed

past the first step of the due process analysis, see Gwinn v. Awmiller, 354 F.3d

1211, 1219 (10th Cir. 2004) (holding that due process requires “some evidence to

3
W hile Brown does not constitute binding precedent, it succinctly states a
principle of constitutional law applicable in this case, with citations to prior
published opinions.

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support the hearing panel’s decision”) (citing Wolff, 418 U.S. at 592 (M arshall, J.,

concurring)).

Turning to the next issue, M r. Lusero contests the district court’s finding

that there was no indication that his administrative segregation would increase the

overall length of his sentence. In his appellate filing, he notes: “O f course this

alleged illegal restraint affects the length of plaintiff[’]s original prison term.

Punitive segregation is for bad behavior and bad behavior, when presented at the

parole board, not only denies plaintiff[’]s chance of parole[,] it prolongs his

chance of early parole.” Appellant/Petitioner’s Opening Br. at 8. And in his

complaint he made reference to his “loss of time credits according to Colorado

statutes of good-earned time of ten days per month.” R. Vol. I, Doc. 3, at 8.

To the extent M r. Lusero challenges the loss of opportunity to earn good-

time credit during his period of administrative segregation, his claim fails. Such

a loss “does not deprive a prisoner of a constitutional right.” Twyman v. Crisp,

584 F.2d 352, 356 (10th Cir. 1978). A nd Colorado law furnishes no such right.

Instead, it expressly permits the denial of the opportunity to earn good-time

credits. See Colo. Rev. Stat. § 17-22.5-301(4) (“Nothing in this section shall be

construed as to prevent the department from withholding good time earnable in

subsequent periods of sentence, but not yet earned, for conduct occurring in a

given period of sentence.”)

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 To the extent M r. Lusero seeks reinstatement of revoked good-time credits,

his claim fails as a procedural matter. A petition for habeas corpus— not a § 1983

suit— is the proper avenue for seeking such relief. See Heck v. Humphrey, 512

U.S. 477, 481 (1994); Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Brown v.

Smith, 828 F.2d 1493, 1495 (10th Cir. 1987) (per curiam). W e note that even if

procedurally proper, M r. Lusero’s claim would likely fail as a substantive matter

as w ell. Loss of good-time credits implicates a liberty interest only if “the State’s

action will inevitably affect the duration of his sentence.” Conner, 515 U.S. at

487. Under Colorado law, only inmates serving sentences for crimes committed

on or after July 1, 1979, but before July 1, 1985, are entitled to mandatory parole.

Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990). M r. Lusero does not assert

that he fits within this category. Under the parole regime in place for crimes

comm itted before July 1, 1979, or after July 1, 1985, “when ‘the inmate’s actual

time served, presentence confinement credit, and good time and earned time

credits equal or exceed the sentence imposed, he is not entitled to an

unconditional release, but rather has earned the right to be considered for

parole.’” Fultz v. Embry, 158 F.3d 1101, 1103 (10th Cir. 1998) (quoting Jones v.

M artinez, 799 P.2d 385, 387–88 & n.5 (Colo. 1990)); see Thiret, 792 P.2d at 805

(explaining that prisoners not fitting within the 1979–1985 category “may be

granted or denied parole at the discretion of the Parole Board”). As we

previously explained in an unpublished but persuasive opinion:

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 A Colorado inmate has no constitutional right to good time credit,
see Kodam a v. Johnson, 786 P.2d 417, 419 (Colo. 1990), even
though “the accumulation of good time credits serves . . . the purpose
of determining an inmate’s parole eligibility date,” People v.
Swepston, 822 P.2d 510, 512 (Colo. Ct. App. 1991). Good time
credits do not count toward sentence reduction. See id. Thus, [a
prisoner’s] loss of good time credits [does] not “inevitably”
increase[] the duration of his sentence, and accordingly does not give
rise to a right to due process.

Klein v. Coblentz, No. 96-1289, 1997 W L 767538, at *4 (10th Cir. Nov. 19,

1997).

A s for M r. Lusero’s equal protection and Eighth Amendment claims, we

have reviewed closely the district court’s opinion and find its reasoning sound

and its conclusions correct. Therefore, we affirm the dismissal of these claims.

See Neitzke, 490 U .S. at 328 (explaining that district courts may dismiss

complaints on frivolousness grounds under § 1915 where the plaintiff “claims . . .

infringement of a legal interest which clearly does not exist”).

C ON CLU SIO N

The judgment of the United States District Court for the District of

Colorado is AFFIRM ED in part, REVERSED in part, and REM AND ED.

Appellant’s motion to proceed in form a pauperis is granted, and he is reminded

that he is obligated to continue making partial payments toward the balance of his

assessed fees and costs until they are paid in full.

Entered for the Court,

M ichael W . M cConnell
Circuit Judge

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