FILED
United States Court of Appeals
Tenth Circuit
February 20, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
PAUL RICHARD PAYNE,
Plaintiff-Appellant,
v. No. 07-4121
(D.C. No. 2:04-CV-844-DAK)
CLINT FRIEL, Warden; (D. Utah)
RICK BROWN; CRAIG BALLS;
MATTHEW FAIRBANKS; FNU
SIBBETT; BLAKE NEILSON;
EILEEN CLARK; SHELBY
HERBERT; DAVID ANGERHOFFER;
WAYNE FREESTONE; FNU PERRY,
Guard; FNU FEICKERT, Guard;
BRYANT HERMAN; B. SCOTT,
Sergeant; M. DELYNN SUMMERS;
BILLIE CASPER; FNU MEYERS,
Lieutenant; TOM ANDERSON;
SCOTT CARVER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Plaintiff Paul Richard Payne, a Utah state prisoner proceeding pro se,
challenges the district court’s sua sponte dismissal of his civil rights complaint
under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Our jurisdiction
arises under 28 U.S.C. § 1291 and we affirm in part, reverse in part, and remand.
I. Background
Mr. Payne filed this 42 U.S.C. § 1983 action in September 2004 against the
warden and several corrections officers of the Utah State Prison, certain members
of Utah’s Board of Pardons and Paroles, and lawyers working under contract with
the prison to provide limited legal services to inmates. In an exhaustive 17-count
complaint, Mr. Payne detailed numerous alleged violations of his constitutional
rights, which, for purposes of this appeal, we distill as follows: (1) that he was
disciplined in violation of his due process rights; (2) that the parole board
violated his Fifth Amendment rights by drawing a negative inference from his
refusal to discuss the murder of a fellow inmate; (3) that his due process rights
were violated as a result of the prison’s arbitrary classification system and his
placement in administrative segregation; (4) that he was denied meaningful access
to the courts; (5) that he is forced to live in inhumane conditions in violation of
the Eighth Amendment; (6) that he is denied access to the press; (7) that his
property was seized without due process; and (8) that the prison grievance system
is a farce and a sham.
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The district court concluded that, even liberally construed, none of the
counts in Mr. Payne’s complaint stated a cognizable claim under § 1983 and that
it would be futile to allow him to amend his pleadings. Accordingly, on April 10,
2007, it dismissed the case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim upon which relief can be granted. The following summary of the
district court’s reasoning corresponds to our numbered categories above.
First, the court concluded that Mr. Payne was afforded the minimum level
of constitutional due process required in his disciplinary proceedings because “he
received advance written notice of the hearing, . . . he was allowed to present
evidence, and . . . the grounds for the guilty finding were set out in writing.” R.
Vol. IV, Doc. 41 at 5. The court also held that “[d]ouble jeopardy protections to
do not apply to prison disciplinary proceedings.” Id. at 6.
Second, the court rejected his complaints about his parole hearing,
explaining that “there is no constitutional or inherent right of a convicted person
to be conditionally released before the expiration of a valid sentence.” Id. at 7
(quotation and alteration omitted). Since Mr. Payne is serving a life sentence, the
court held there was no constitutional violation in the board’s denial of parole
notwithstanding any alleged procedural errors. The court also held that the parole
board could, consistent with Mr. Payne’s Fifth Amendment right against
compelled self-incrimination, draw a negative inference from his refusal to
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discuss particular subjects at his parole hearing. See id. at 9 (citing Ohio Adult
Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998)).
Third, the court held Mr. Payne was not entitled to relief under § 1983 by
virtue of his classification in administrative segregation. The court explained that
inmates have no federal constitutional right to any specific classification or
housing assignment. Rather, a protected liberty interest arises with respect to
prison classification only where it “imposes 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). Concluding that “[t]he regime to which [Mr. Payne]
[was] subjected as a result of his classification [was] clearly within the normal
limits or range of custody which his conviction . . . authorized the State to
impose,” R. Vol. IV, Doc. 41 at 11, the court found no liberty interest, and thus
no constitutional deprivation, arising out of his placement in administrative
segregation.
Fourth, the court held that the volume of material that Mr. Payne was able
to file in this case demonstrated that he could not state a claim for denial of
meaningful access to the courts. The court also rejected his complaints about the
prison’s reliance on contract attorneys in lieu of a law library based on this
court’s acceptance in Carper v. DeLand, 54 F.3d 613, 616-617 (10th Cir. 1995),
of the very system being challenged.
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The court went on to separately address each of Mr. Payne’s Eighth
Amendment claims, which ranged from complaints about the cold temperature in
his cell to the quality of his meals. None, the court held, constituted cruel and
unusual punishment in violation of the Eighth Amendment. The court explained
that an Eighth Amendment claim entails both objective and subjective
components. “The objective component is met only if the condition complained
of is ‘sufficiently serious,’” meaning that it “poses ‘a substantial risk of serious
harm.’” R. Vol. IV, Doc. 41 at 19 (quoting Farmer v. Brennan, 511 U.S. 825,
834 (1994)). The second component requires the prison official to have a
“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (quotation
omitted). This, the court explained, requires the inmate to allege on the part of
the defendant prison officials, a deliberate indifference to his health or safety.
“Deliberate indifference requires both knowledge and disregard of possible risks,
a mens rea on a par with criminal recklessness.” R. Vol. IV, Doc. 41 at 20
(quotation omitted). The court concluded that Mr. Payne failed to allege facts
meeting either the objective or subjective components of a valid Eighth
Amendment claim.
The district court rejected the final three categories of claims more
summarily. It concluded that the prison’s vendor policy, which controls the
books to which inmates have access, was reasonably related to valid penological
interests as required by Turner v. Safley, 482 U.S. 78, 88 (1987), and thus it
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rejected Mr. Payne’s “access-to-the-press” claim. It rejected his property-seizure
claim because Mr. Payne failed to allege insufficient post-deprivation procedures.
And it held he failed to state a claim based on the alleged shortcomings of the
prison’s grievance system because since Jones v. Bock, 127 S. Ct. 910, 921
(2007), exhaustion of administrative remedies is no longer a pleading
requirement.
Mr. Payne appeals the dismissal of each of his claims, arguing that the
district court both misconstrued his pleadings and committed legal error.
II. Discussion
We review de novo a district court’s dismissal for failure to state a claim
under 28 U.S.C. § 1915(e)(2)(B). Perkins v. Kan. Dep’t of Corr., 165 F.3d 803,
806 (10th Cir. 1999). “Dismissal of a pro se complaint for failure to state a claim
is proper only where it is obvious that the plaintiff cannot prevail on the facts he
has alleged and it would be futile to give him an opportunity to amend.” Id. In
determining whether dismissal is proper, we accept the plaintiff’s allegations as
true and construe them and all reasonable inferences to be drawn from them in the
light most favorable to the plaintiff. Id. We have carefully examined Mr.
Payne’s complaint in light of the additional consistent facts that he provided in
his appellate brief. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)
(noting that it may be appropriate to consider additional facts asserted in brief so
long as they are consistent with facts and theories advanced in complaint). And
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we are satisfied that the district court correctly dismissed all but Count Three of
the complaint, which alleged a due process violation arising out of Mr. Payne’s
classification in administrative segregation.
In support of this claim, Mr. Payne alleged that the prison’s classification
system is “defunct and void of due process.” R. Vol. I, Doc. 4 at 6. He claims he
was arbitrarily placed in Intensive Management (“IM”) when he arrived at the
prison in 2003 and that he has remained there ever since. He goes on to explain,
in support of one of his Eighth Amendment claims, that IM is administrative
segregation, which “is not [meant] to be punitive.” Id. at 28. Nonetheless, he
claims that because of his classification, he is locked in his cell all but three hours
per week and is denied access to books, magazines, a television or radio, paper,
art supplies, hobby/craft materials, and all other means of entertainment. He also
claims that he has “zero access to jobs, programming or education[,] thus
negating any form or rehabilitation.” Id. at 37. Further elaborating his plight in
his brief to this court, Mr. Payne argues that his “treatment, in relation to other
IM prisoners is atypical and significant as they do 45 days in IM while [he] has
been in IM for 3 ½ years [without] incident.” Aplt. Op. Br. at 20.
The district court dismissed this claim because it concluded that Mr. Payne
did not have a constitutional right to any specific classification or housing
assignment. And it further held that he could not show that his classification
“impose[d] an atypical or significant hardship on him in relation to the ordinary
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incidents of prison life, or [was] likely to lengthen his term of confinement.” R.
Vol. IV, Doc. 41 at 11. This unsupported analysis, however, did not go far
enough. The district court correctly observed that “classification of a plaintiff
into segregation does not involve deprivation of a liberty interest independently
protected by the Due Process Clause.” Trujillo v. Williams, 465 F.3d 1210, 1225
(10th Cir. 2006) (quotation and alterations omitted). A liberty interest may be
created, however, if the segregation imposes “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S.
at 484. When a prisoner makes such an allegation based on his confinement in
segregation, the district court must conduct an evidentiary analysis to determine
whether the duration of the confinement was itself atypical and significant. See
Trujillo, 465 F.3d at 1225 (reversing dismissal of due process claim where
prisoner alleged that he spent 750 days in segregation compared to other inmates’
stays of 180 days); Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006)
(holding that district court abused its discretion in concluding that three-year
period of segregation was not even arguably atypical); Gaines v. Stenseng,
292 F.3d 1222, 1225-26 (10th Cir. 2002) (reversing dismissal of due process
claim and remanding to district court to determine whether 75-day confinement in
disciplinary segregation was itself atypical and significant).
By the time the district court issued its ruling, Mr. Payne had been confined
to administrative segregation for over three years. Nonetheless, the district court
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dismissed his due process claim at the pleading stage without inquiring into
whether the duration of his confinement in segregation alone constituted an
atypical and significant hardship. This was error. See Perkins, 165 F.3d at 809
(noting that the state must “fully address both the duration and degree of
plaintiff’s restrictions as compared with other inmates”); Gaines, 292 F.3d at
1226 (holding that it was inappropriate to dismiss due process claim at pleading
stage). We therefore reverse the dismissal of Count Three of the complaint and
remand to allow the district court to conduct the appropriate evidentiary analysis.
We note, however, that not all of the defendants are implicated in Mr. Payne’s
due process claim relating to his confinement in segregation. The district court is
therefore advised to examine Mr. Payne’s complaint and order service of process
only upon the appropriate defendants.
We affirm the district court’s dismissal of all other claims for substantially
the same reasons articulated in its order of April 10, 2007.
III. Conclusion
The dismissal of Count Three of the complaint is REVERSED and the case
is REMANDED with instructions to the district court to examine the allegations
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supporting this claim and have the appropriate defendants served pursuant to
28 U.S.C. § 1915(d). The dismissal of all other counts is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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