Padilla v. Enzor

FILED
United States Court of Appeals
Tenth Circuit

May 13, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAGIN RAUL PADILLA,

Plaintiff - Appellant,

v.

JUDGE ENZOR, District Court 17th
Judicial District, Adams County
Justice Center; DON QUICK, D.A.,
AND COMPLETE STAFF, Office of
Colorado District Attorney 17th
Judicial District, MICHAEL BRASS,
D.A.; ROBERT S. GRANT, D.A.;
COLORADO DEPARTMENT OF
CORRECTIONS; GOVERNOR BILL
RITTER; JOHN SUTHERS, Colorado
Attorney General, People of the State No. 07-1335
of Colorado; MR. WILSON, Colorado (D.C. No. 1:07-CV-00537-ZLW)
State Office of Public Defenders; (D. Colo.)
PAUL CRANE, Colorado State Office
of Public Defenders; JEANEEN
MILLER, Colorado Division of Adult
Parole and Community Corrections;
ALLEN STANLEY, Colorado State
Board of Parole; SGT. NORA
KURTZ, Arkansas Valley Correctional
Facility Mailroom; WARDEN LOU
ARCHELETTA, Arkansas Valley
Correctional Facility; CHRISTINE
MOSCHETTI, Colorado Department
of Corrections Time Comp; DONA
THURLOW, Colorado Department of
Corrections Time Comp; LT.
STEINBECK, Arkansas Valley
Correctional Facility Mailroom;
 VALUE ADDED
COMMUNICATIONS; ZERO PLUS
DIALING, INC., LONG DISTANCE,
PLANO, TEXAS, and JOHN AND
JANE DOES,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.

Plaintiff-Appellant Magin Raul Padilla, proceeding pro se and in forma

pauperis, appeals the district court’s decision to dismiss his claims asserted under

42 U.S.C. § 1983. 1 We AFFIRM.

*
After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
1
We GRANT Padilla’s motion to proceed on appeal in forma pauperis. See
28 U.S.C. § 1915.

2
 I. Background

Padilla is incarcerated by the Colorado Department of Corrections (“DOC”)

as a result of his 2003 Colorado conviction for “theft by receiving” stolen

property. See Colo. Rev. Stat. § 18-4-410. For this conviction, Padilla was

subject to “a term of two years to six years at the Department of Corrections plus

three years parole and/or a fine of $2,000 to $500,000.”

Padilla commenced this action pursuant to 42 U.S.C. § 1983. “Section

1983 provides that ‘[e]very person’ who acts under color of state law to deprive

another of constitutional rights ‘shall be liable to the party injured in an action at

law.’” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d 1185, 1191

(10th Cir. 2007) (quoting 42 U.S.C. § 1983). Among other remedies, “[d]amages

are available [under] § 1983 ‘to compensate persons for injuries caused by the

deprivation of constitutional rights.’” Makin v. Colo. Dep’t of Corr., 183 F.3d

1205, 1214 (10th Cir. 1999) (quoting Carey v. Piphus, 435 U.S. 247, 254 (1978)).

In this case, the district court dismissed most of Padilla’s § 1983 claims as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i), and dismissed others simply

“without prejudice.” Padilla appeals those decisions.

II. Appellate jurisdiction

At the outset, we must determine whether we have jurisdiction to consider

this appeal. 28 U.S.C. § 1291 gives this court jurisdiction to consider appeals

taken from a district court’s final decisions, which are those that end the litigation

3
on the merits and leave nothing for the court to do but execute the judgment, see

Alexander v. U.S. Parole Comm’n, 514 F.3d 1083, 1087 (10th Cir. 2008) (citing

Catlin v. United States, 324 U.S. 229 (1945)). But a district court’s decision to

dismiss claims without prejudice may signal, instead, that the district court’s

decision is not yet final. See Moya v. Schollenbarger, 465 F.3d 444, 448 (10th

Cir. 2006). “[I]n this circuit, whether [such] an order of dismissal is appealable

generally depends on whether the district court dismissed the complaint or the

action. A dismissal of the complaint is ordinarily a non-final, nonappealable

order (since amendment would generally be available), while a dismissal of the

entire action is ordinarily final.” Id. 448-49 (quotation omitted). “In evaluating

finality, . . . we look to the substance and objective intent of the district court’s

order, not just its terminology.” Id. at 449. And we apply a practical approach.

See id. at 449-50.

Here, the district court’s decision at issue does not expressly state whether

the court was dismissing only Padilla’s complaint or instead his entire action. In

such a situation, “we look to the language of the district court’s order, the legal

basis of the district court’s decision, and the circumstances attending dismissal to

determine the district court’s intent in issuing its order—dismissal of the

complaint alone or actual dismissal of plaintiff’s entire action.” Id. at 451. “If

the effect of the district court order is that the plaintiff is effectively excluded

from federal court, then the district court must have intended to dismiss the entire

4
action and our appellate jurisdiction is proper.” Id. (citations, quotations

omitted).

“Although there is no easy resolution to the question of finality in the face

of [the district court’s] ambiguity,” we conclude that it was the district court’s

intent here to dismiss Padilla’s entire action. Id. at 454. In particular, the district

court did not extend to Padilla “a sufficiently clear invitation . . . to amend the

complaint or otherwise continue the proceedings in the district court.” Id.

(quotation omitted). And the district court’s dismissal of the rest of Padilla’s

claims as frivolous further suggests that the court intended to dismiss the entire

action. In light of that intent, the district court’s decision dismissing Padilla’s

claims, some specifically without prejudice, was a final order and this court,

therefore, has appellate jurisdiction to consider this appeal.

III. Standard of review

The district court permitted Padilla to commence this action in forma

pauperis. See 28 U.S.C. § 1915(a). Before the complaint was ever served,

however, the district court dismissed all but one of Padilla’ s claims as frivolous

under 28 U.S.C. § 1915(e)(2)(B)(i), which provides that “the court shall dismiss

the case at any point in time if the court determines that . . . the action or

appeal . . . is frivolous or malicious.” 2 “A district court may deem an in forma

2
28 U.S.C. § 1915(e)(2) permits a district court to dismiss sua sponte the
action of a plaintiff proceeding in forma pauperis under several different
(continued...)

5
pauperis complaint frivolous only if it lacks an arguable basis either in law or in

fact.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.) (quotation omitted), cert.

denied, 127 S. Ct. 675 (2006). “[D]ismissal is only appropriate for a claim based

on an indisputably meritless legal theory and the frivolousness determination

cannot serve as a factfinding process for the resolution of disputed facts.” Id.

(quotation omitted).

This court generally reviews the district court’s decision to dismiss claims

as frivolous under § 1915(e)(2)(B)(i) for an abuse of discretion. See Conkle v.

Potter, 352 F.3d 1333, 1335 n. 4 (10th Cir. 2003). If the dismissal turns on a

question of law, however, we will review that determination de novo. See Fogle,

2
(...continued)
circumstances:

Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that —

(A) the allegation of poverty is untrue; or

(B) the action or appeal —

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may
be granted; or

(iii) seeks monetary relief against a defendant
who is immune from such relief.

28 U.S.C. § 1915(e)(2).

6
435 F.3d at 1259. “In determining whether dismissal is proper, we accept the

allegations in the complaint as true and construe those allegations and any

reasonable inferences therefrom in the light most favorable to Plaintiff.” French

v. Adams County Det. Ctr., 379 F.3d 1158, 1159 (10th Cir. 2004). Further,

because Padilla is appearing pro se, we will liberally construe his pleadings. See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Although the district court dismissed most of Padilla’s claims as frivolous,

the court specifically dismissed Padilla’s claim “regarding his denial of

earned-time credit against his presentence confinement time” without prejudice.

The court did not base that dismissal on the claim’s frivolousness. We will

review that dismissal de novo. See Trujillo v. Williams, 465 F.3d 1210, 1214,

1216 (10th Cir. 2006) (dismissal without prejudice under Fed. R. Civ. P. 12(b)(6)

and 28 U.S.C. § 1915(e)(2)); Patel v. Fleming, 415 F.3d 1105, 1108-09 (10th Cir.

2005) (reviewing dismissal for failure to exhaust administrative remedies de

novo).

IV. Padilla’s § 1983 claims

Padilla asserted numerous claims under 42 U.S.C. § 1983. These claims

generally fall into four categories: claims challenging the legality of Padilla’s

sentence imposed for his Colorado theft conviction, challenging the execution of

that sentence, alleging various defendants deprived Padilla of constitutional rights

7
in their efforts to convict and imprison Padilla, and challenging the conditions of

his confinement. We address each category in turn.

A. Padilla’s claims challenging his state conviction and sentence

Liberally construing Padilla’s pleadings, several of his allegations

challenge his Colorado theft conviction and the sentence imposed for that

conviction. For example, Padilla alleges that: (1) by sentencing Padilla to both

prison time and a mandatory parole term, his sentence illegally punishes him

twice for the same offense; (2) his sentence exceeds “the maximum of the

presumtive [sic] [sentencing] range” applicable to this conviction; (3) imposing a

mandatory parole term violated Apprendi v. New Jersey, 530 U.S. 466, 490

(2000) (holding that, “other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt”); Blakely v.

Washington, 542 U.S. 296, 301, 303-05 (2004) (applying Apprendi to overturn

Washington’s sentencing scheme); United States v. Booker, 543 U.S. 220, 226-27

(2005) (relying upon Apprendi and Blakely to overturn the mandatory application

of the United States Sentencing Guidelines); Cunningham, and Barton; 3 4) the

state trial court and the Government breached the plea agreement the Government

had with Padilla which, according to him, called for “6 yrs DOC not 9 yrs with 3

3
It is not clear to what cases Padilla is referring when he mentions
Cunningham and Barton.

8
yrs of mandatory parole;” and 5) Padilla’s plea agreement was the result of the

ineffective assistance provided by his defense attorneys. Because of these alleged

constitutional violations, Padilla argues that “he is entitled now to be immediately

released (on mandatory parole where required) and or discharged from prison.”

These allegations challenge the fact and duration of his confinement, as

well as the legality of both his conviction and sentence. As such, Padilla cannot

assert these claims under 42 U.S.C. § 1983. See Wilkinson v. Dotson, 544 U.S.

74, 78 (2005) (citing Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). Instead,

Padilla must assert them in a habeas petition pursuant to 28 U.S.C. § 2254. See

Wilkinson, 544 U.S. at 78; see also Davis v. Roberts, 425 F.3d 830, 845 (10th

Cir. 2005).

Ordinarily, a federal court, affording a pro se inmate’s pleadings liberal

construction, might treat § 1983 claims such as these to be, instead, claims

seeking habeas relief under 28 U.S.C. § 2254. See McWilliams v. Colorado, 121

F.3d 573, 574-75 (10th Cir. 1997). But this court has recognized that, because of

the “strict limitations” the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) places on second or successive habeas claims, a state prisoner “may

prefer to have his claim dismissed rather than be recharacterized as a § 2254

claim because of the potential consequences with respect to any § 2254 claim he

may file in the future.” Davis, 425 F.3d at 835. For that reason, the district court

did not abuse its discretion in dismissing these claims. But Padilla may be able to

9
reassert them in a habeas petition seeking relief under 28 U.S.C. § 2254.

However, such a petition would generally name as the respondent only the person

who has custody over the inmate. See Rumsfeld v. Padilla, 542 U.S. 426, 434

(2004) (citing 28 U.S.C. §§ 2242, 2243). And § 2254 claims are subject to 28

U.S.C. § 2244(d)’s one-year limitations period. We express no opinion, of

course, whether Padilla is now barred by the one-year statute of limitations period

from bringing such a claim.

B. Padilla’s claims challenging the execution of his sentence

Several of Padilla’s allegations challenge, not the fact of his conviction and

sentence, but the execution of that sentence. For instance, Padilla asserts that the

DOC is improperly calculating his sentence by refusing to award him earned and

good time credit for the time Padilla spent in jail prior to his being sentenced for

his Colorado conviction. In addition, Padilla contends that the Colorado parole

procedures are unconstitutional, and that the parole commission’s application of

“harsher guidelines” violates the Constitution’s Ex Post Facto Clause. As relief

for these alleged constitutional violations, Padilla requests

new parole procedures, a new parole hearing in which Colorado Parole
authorities in their discretion decide to shorten my prison term by
putting mandatory parole inside my ‘sentence.’ I am asking for an
immediate parole hearing in accordance to statutory laws and
administrative rules. I am requesting a new parole hearing conducted
under constitutionally proper procedures and [an] injuction [sic]
ordering the state to comply with constitutional due process and ex post
facto requirements in the future.

10
 Instead of asserting these claims under 42 U.S.C. § 1983, Padilla must

present claims challenging the execution of his sentence in a petition seeking

habeas relief under 28 U.S.C. § 2241. See Davis, 425 F.3d at 833; Dulworth v.

Evans, 442 F.3d 1265, 1268 (10th Cir. 2006); see also Wilkinson, 544 U.S. at

78-82. 4 The district court, therefore, did not err in dismissing these § 1983

claims. Again, Padilla may seek to reassert these claims in a habeas petition

seeking relief under 28 U.S.C. § 2241. However, to do so, he must first exhaust

any state court or administrative remedies he might have available, or allege that

such exhaustion would be futile. See Magar v. Parker, 490 F.3d 816, 818 (10th

Cir. 2007); Dulworth, 424 F.3d at 1268-69; Montez v. McKinna, 208 F.3d 862,

866 (10th Cir. 2000). And, again, § 2241 claims are also subject to 28 U.S.C.

§ 2244(d)’s one-year limitations period. See Dulworth, 424 F.3d at 1268. We

express no opinion whether such claims are now barred by the one-year statute of

limitations.

4
To the extent that Padilla is challenging the fact that the state court
sentenced him to a mandatory term of parole, such a claim should be asserted as a
claim for habeas relief under 28 U.S.C. § 2254. Further, an inmate can properly
challenge parole procedures under 42 U.S.C. § 1983 if all he is seeking is to
overturn those procedures and if he is not seeking his immediate or a speedier
release into the community. See Wilkinson, 544 U.S. at 82. But it appears clear
that what Padilla is seeking in this action is his immediate or at least a speedier
release. Such a claim must be asserted as a claim for habeas relief under 28
U.S.C. § 2241. See Wilkinson, 544 U.S. at 82; Davis, 425 F.3d at 833.

11
C. Padilla’s § 1983 claims calling into doubt his conviction and sentence

Padilla also alleges several claims for damages, asserted under 42 U.S.C.

§ 1983, that call into question his Colorado theft conviction and sentence. For

example, Padilla alleges that the Adams County, Colorado district attorney and

two assistant district attorneys conspired with the state trial judge and Padilla’s

own public defenders to “mistreat” Padilla and to “trap” him into agreeing to a

plea agreement that the Government later breached. Padilla also accuses “the

district attorney’s office” of participating “in vexatious prosecution” against him.

Heck v. Humphrey precludes Padilla from asserting these claims unless and

until he succeeds in getting his conviction or sentence overturned. See 512 U.S.

477, 486-87 (1994); see also Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1249

(10th Cir. 2007). Ordinarily, a court faced with § 1983 claims precluded by Heck

will dismiss those claims without prejudice, even under 28 U.S.C. § 1915, in

order to permit the plaintiff to reassert them again later should he succeed in

overturning his conviction or sentence. See Fottler v. United States, 73 F.3d

1064, 1065 (10th Cir. 1996) (addressing dismissal as frivolous under prior

§ 1915(d)). Nonetheless, in this case, the district court did not abuse its

discretion in simply dismissing these claims as frivolous because the defendants

against whom Padilla asserted these claims are not amenable to suit under § 1983,

based upon the facts as Padilla alleges them.

12
 The state trial judge enjoys absolute immunity from claims for money

damages stemming from his judicial actions. See Mireles v. Waco, 502 U.S. 9,

9-10 & 10 n.1 (1991) (per curiam); see also Stump v. Sparkman, 435 U.S. 349,

362 (1978). So, too, do the prosecutors enjoy absolute immunity for actions they

have taken within the scope of their “duties in initiating and pursuing a criminal

prosecution.” Imbler v. Pachtman, 424 U.S. 409, 410 (1976); see also Mink v.

Suthers, 482 F.3d 1244, 1258-62 (10th Cir. 2007), cert. denied, 128 S. Ct. 1122

(2008).

The public defenders who represented Padilla, on the other hand, do not

“act under color of state law” when “performing a lawyer’s traditional functions

as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 454

U.S. 312, 325 (1981). Thus, Padilla’s public defenders are not state actors

subject to suit under 42 U.S.C. § 1983. See Dodson, 454 U.S. at 314, 317-25.

For these reasons, the district court did not abuse its discretion in

dismissing these claims.

D. Padilla’s claims challenging the conditions of his confinement

Padilla asserts four § 1983 claims challenging the conditions of his

confinement. “[A] § 1983 action is the proper remedy for a state prisoner who is

making a constitutional challenge to the conditions of his prison life.” Preiser,

411 U.S. at 499. Here, Padilla challenges prison officials’ refusal to place him in

community corrections, the prison mailroom staff’s impeding Padilla’s access to

13
the courts, prison grievance procedures generally, and the expense of making a

collect telephone call from prison.

1. Prison officials’ refusal to place Padilla in community
corrections

Padilla alleges that the “Colorado Department of Corrections, Division of

Adult Parole and Community Corrections and case management department have

discriminated against plaintiff, because there is not enough bed space to be placed

in community corrections and have changed procedures and guidelines for

placement.” We interpret Padilla’s claim to be one seeking confinement at a

lower security level, which is a claim cognizable under § 1983. 5 See Boutwell v.

Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) (citing Meachum v. Fano, 427

U.S. 215, 218, 222-23 (1976)).

Padilla’s assertion that defendants have “discriminated” against him,

liberally construed, could implicate the Equal Protection Clause’s directive that

the government treat similarly situated individuals the same absent a rational

basis for disparate treatment. See Christian Heritage Acad. v. Okla. Secondary

Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007). Because Padilla

“does not claim that the defendants treated him differently because of any suspect

5
On the other hand, a claim seeking to be placed on parole is a claim that
must be asserted in a petition for habeas relief. See Boutwell v. Keating, 399
F.3d 1203, 1209 (10th Cir. 2005). But we do not interpret Padilla’s allegations to
suggest that the community corrections program in which he seeks placement is
analagous to parole.

14
classification,” however, he “must prove that the distinction between himself and

other inmates was not reasonably related to some legitimate penological purpose.”

Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994); see also Helm v.

Colorado, 244 Fed. Appx. 856, 859 (10th Cir. July 25, 2007) (unpublished).

Padilla’s equal protection claim here fails because he has not identified any

inmate, similarly situated to Padilla, that defendants have placed in community

corrections. See Keck v. Zenon, 240 Fed. Appx. 815, 819-20 (10th Cir. July 20,

2007) (unpublished) (affirming dismissal of equal protection claim under 28

U.S.C. § 1915(e)(2)(B)); see also Abbott v. McCotter, 13 F.3d 1439, 1441 (10th

Cir. 1994) (upholding dismissal of conclusory equal protection claim for

frivolousness).

Padilla’s reference to changes in the procedures and guidelines for

placement in community corrections, liberally construed, might implicate a

procedural due process argument. “The Fourteenth Amendment’s Due Process

Clause protects persons against deprivations of life, liberty, or property and those

who seek to invoke its procedural protection must establish that one of these

interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Padilla’s

claim appears to suggest that he has a liberty interest in his placement in

community corrections. See Boutwell, 399 F.3d at 1211. “A liberty interest may

arise from the Constitution itself, by reason of guarantees implicit in the word

‘liberty,’ or it may arise from an expectation or interest created by state laws or

15
policies.” Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1339 (10th

Cir. 2007); see also Boutwell, 399 F.3d at 1212.

Ordinarily an inmate “is not entitled to a particular degree of liberty in

prison.” Templeman, 16 F.3d at 369; see also Meachum, 427 U.S. at 225 (noting

that “the Due Process Clause in and of itself” does not “protect a duly convicted

prisoner against transfer from one institution to another within the state prison

system”); Overturf v. Massie, 385 F.3d 1276, 1279 (10th Cir. 2004) (holding

“inmates have no protected liberty interest in the location of their confinement”).

Therefore, “[t]here is no federal constitutional right to incarceration in a

particular prison.” Montez, 208 F.3d at 866. “Confinement in any of the State’s

institutions is within the normal limits or range of custody which the conviction

has authorized the State to impose.” Meachum, 427 U.S. at 225. Thus, refusing

to lower his prison classification would not implicate a liberty interest stemming

directly from the Due Process Clause. Cf. Boutwell, 399 F.3d at 1212

(allegations that prison officials’ refusal to release an inmate to a program

analogous to parole “failed to allege facts necessary to create an inherent

constitutional liberty interest).

On the other hand, “States may under certain circumstances create liberty

interests which are protected by the Due Process Clause.” Sandin v. Conner, 515

U.S. 472, 483-84 (1995); see also DiMarco, 473 F.3d at 1339. But those

“interests will be generally limited to freedom from restraint which, while not

16
exceeding the sentence in such an unexpected manner as to give rise to protection

by the Due Process Clause of its own force, nonetheless, imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin, 515 U.S. at 484; see also DiMarco, 473 F.3d at 1339; Trujillo, 465

F.3d at 1225.

Padilla does not specifically identify any state law giving him a liberty

interest in placement in community corrections. Nor is he complaining that his

classification was changed to inflict greater hardships, “atypical and significant,”

on him “in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at

484. Instead, he alleges only that defendants have refused to change his custody

classification to a level that imposes fewer restrictions “in relation to the ordinary

incidents of prison life.” Id. In light of that, the district court did not abuse its

discretion in dismissing this claim. See Keck, 240 Fed. Appx. at 818, 820.

It is possible that Padilla’s reference to changed procedures and guidelines

for placement in community corrections, liberally construed, might also implicate

the Ex Post Facto Clause.

To show a violation of the Ex Post Facto Clause, a prisoner must show
that he has been subjected to a penal or criminal law that is
retrospective, and disadvantageous to the offender because it imposes
greater punishment. The law must alter the definition of criminal
conduct or increase the punishment for the crime.

17
Reed v. McKune, 298 F.3d 946, 954 (10th Cir. 2002). The Ex Post Facto Clause

applies to both legislative acts and “agency regulation which is legislative in

nature.” Smith v. Scott, 223 F.3d 1191, 1193-94 (10th Cir. 2000).

If Padilla is asserting an ex post facto claim, it too fails. While

“[r]etroactive changes in laws governing parole of prisoners, in some instances,

may” violate the Ex Post Facto Clause, Garner v. Jones, 529 U.S. 244, 250

(2000), as we understand his pleadings, Padilla alleges only that prison officials

will not lower the security level at which he is currently confined. “[N]ot every

retroactive procedural change creating risk of affecting an inmate’s terms or

conditions of confinement is prohibited.” Id.

For these reasons, the district court did not abuse its discretion in

dismissing these claims.

2. Prison mailroom’s impeding Padilla’s access to the courts

Padilla alleges: 1) the “Arkansas Valley Correctional facility mailroom is

very bizarre to say the least;” 2) Defendant Sgt. Kurtz is a “rogue” guard who

refused to follow DOC policies and who has impeded Padilla’s access to the

courts; and 3) Defendant Lt. Steinbeck has been told about Kurtz, but refuses to

do anything about her.

Allegations that prison officials’ conduct has impeded an inmate’s access to

the courts is actionable under § 1983. See Trujillo, 465 F.3d at 1226.

Nevertheless, “[t]o state a claim for denial” of the right of access to the courts,

18
Padilla “must show that any denial or delay of access to the court prejudiced him

in pursuing litigation.” Id. (quotation omitted). Padilla’s claim here fails because

he has not alleged any specific prejudice that he has suffered because of

defendants’ conduct. Cf. id. at 1226-27 (holding inmate alleged a sufficient

injury by asserting that defendants’ actions prevented him from filing a state

habeas petition). The district court, therefore, did not abuse its discretion in

dismissing this claim. 6

3. Prison grievance procedures

Padilla alleges that: 1) “[t]he Arkansas Valley Correctional facility is a

run-a-way prison” whose “grievance system and this facility just doesn’t work;”

2) the prison staff does not follow protocol or time deadlines provided for in the

grievance procedures; and 3) Defendant Warden Archuletta “look[s] the other

way.” Padilla appears to be specifically challenging the prison staff’s telling him

that complaints Padilla filed were “non grievable issues.” Because these

allegations are so vague, the district court did not abuse its discretion in

dismissing this claim. See Fogle, 435 F.3d at 1263 n.7 (concluding claim

supported by conclusory allegations is frivolous).

6
In addition to the right of access to the courts, “[c]orrespondence between
a prisoner and an outsider implicates the guarantee of freedom of speech under
the First Amendment and a qualified liberty interest under the Fourteenth
Amendment.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996); see also id. at
194-95. But Padilla’s allegations do not implicate this or any other constitutional
right beyond his right to access the courts.

19
 4. Prices for making collect telephone calls

Finally, Padilla alleges that Defendant(s) Value Added Communications,

Zero Plus Dialing Inc., apparently a private company (or companies) that provides

phone service to inmates at the Arkansas Valley Correctional Facility, “are

over-charging families with a monopoly in the collect call system. Profeting [sic]

outrageous amounts from families. . . . Very outrageous. Offenders have access

to a reasonably priced services [sic].”

The district court dismissed this claim as frivolous, holding Padilla does

not have “standing to raise a claim on behalf of the prisoners’ families.” We

agree.

In addition, Padilla also appears to be asserting that inmates, too, have a

right to reasonably priced telephone service. He would arguably have standing to

assert such a right. See generally Wirsching v. Colorado, 360 F.3d 1191, 1198-99

(10th Cir. 2004) (addressing inmates’ limited First Amendment right to familial

association). Nevertheless, we agree with the district court when it stated that it

knew “of no constitutional right to not incur an increase in the price of a collect

call.” Thus, the district court did not abuse its discretion in dismissing these

claims. Cf. United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)

(noting use of prison telephone is a privilege, not a right).

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 V. Conclusion

For the foregoing reasons, we AFFIRM the district court’s decision to

dismiss Padilla’s 42 U.S.C. § 1983 action. We remind Padilla of his continuing

obligation to make partial payments until the full amount of is appellate filing fee

is paid.

The mandate shall issue forthwith.

Entered for the Court

David M. Ebel
Circuit Judge

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