Gee v. Pacheco

FILED
United States Court of Appeals
Tenth Circuit

October 26, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD GEE,

Plaintiff-Appellant,
v. No. 08-8057
MIKE PACHECO, in his official
capacity as Unit Manager, Wyoming
Department of Corrections State
Penitentiary; VANCE EVERETT, in
his official capacity as (former)
Warden, Wyoming Department of
Corrections State Penitentiary; CARL
VOIGTSBERGER, in his official
capacity as Classification and Housing
Manager, Wyoming Department of
Corrections State Penitentiary; SCOTT
ABBOTT, in his official capacity as
Warden, Wyoming Department of
Corrections State Penitentiary;
RONALD G. RUETTGERS, in his
official capacity as Associate Warden,
Wyoming Department of Corrections
State Penitentiary; T. HILL, in his
official capacity as Sergeant,
Wyoming Department of Corrections
State Penitentiary; NADIN SHAH, in
his/her official capacity as Sergeant,
Wyoming Department of Corrections
State Penitentiary; DAVID EVERETT,
in his official capacity as Correction
Officer, Wyoming Department of
Corrections State Penitentiary; BRIAN
WISEMAN, in his official capacity as
Correction Officer, Wyoming
Department of Corrections State
 Penitentiary; DESIREE LOPEZ, in her
official capacity as Mail Room
Officer, Wyoming Department of
Corrections State Penitentiary;
LENNY STILLWELL, in his official
capacity as Sergeant, Wyoming
Department of Corrections State
Penitentiary; GARRY HALTER, in his
official capacity as Lieutenant,
Wyoming Department of Corrections
State Penitentiary; S. KELLEY, in his
official capacity as Corporal,
Wyoming Department of Corrections
State Penitentiary; JOHN COYLE, in
his official capacity as physician to the
Wyoming State Penitentiary,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING *
(D.C. NO. 2:06-CV-00029-WFD)

Donald Gee, pro se.

Hon. Bruce A. Salzburg, Wyoming Attorney General, John S. Renneisen, Deputy
Attorney General, and Thomas W. Rumpke, Senior Assistant Attorney General,
Cheyenne, Wyoming, for Defendants-Appellees, Pacheco, Everett, Voigtsberger,
Abbott, Ruettgers, Hill, Shah, Evertt, Wiseman, Lopez, Stillwell, Halter, and
Kelley.

Kathleen B. Dixon, Chapin & Dixon, LLP, Casper, Wyoming, for
Defendant-Appellee, John F. Coyle, D.O.

*
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.

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Before HARTZ, MCKAY, and ANDERSON, Circuit Judges.

HARTZ, Circuit Judge.

Donald Gee is a prisoner in the Wyoming State Penitentiary (WSP) who

represents himself before this court. On January 27, 2006, he filed in the United

States District Court for the District of Wyoming a pro se civil-rights action under

42 U.S.C. § 1983 against Defendants, who are WSP officials. Mr. Gee alleged

that Defendants violated his rights under the First, Eighth, and Fourteenth

Amendments to the United States Constitution. 1 His complaint includes 154

paragraphs, many of which are repetitive. Defendants moved to dismiss the

complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Concluding that Mr. Gee

had failed to state a claim upon which relief could be granted and that his

complaint was frivolous, the district court granted the motion and dismissed the

complaint with prejudice.

1
Mr. Gee is a state prisoner. The First and the Eighth Amendments apply to
the states through the Fourteenth Amendment. See 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 489 n.1 (1996) (First Amendment); Rhodes v. Chapman,
452 U.S. 337, 344–45 (1981) (Eighth Amendment). Technically, then, all of
Mr. Gee’s claims could be considered to be under the Fourteenth Amendment.
See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (acknowledging
that plaintiffs may have invoked the Fourteenth Amendment simply because the
Eighth Amendment applies to the states only through the Fourteenth
Amendment). For ease of analysis and to avoid confusion, we address the claims
according to which amendment provides the applicable substantive protections.
See id.

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 We have jurisdiction under 28 U.S.C. § 1291. We affirm the dismissal with

prejudice of several claims because they are clearly barred by the statute of

limitations or by claim preclusion. But we reverse the dismissal of the other

claims and remand for further proceedings. Some of the allegations sufficiently

alleged § 1983 claims and should have been allowed to proceed. As for the

remaining claims, although the complaint failed to allege a cause of action

adequately, it does not appear that the district court considered whether the

defects in the complaint could be cured by amendment, and amendment would not

necessarily be futile. Accordingly, the district court on remand should give

Mr. Gee an opportunity to amend his allegations with respect to those claims.

I. BACKGROUND

For his First Amendment claims, Mr. Gee alleged that Defendants (1) had

violated his right to communicate with persons outside the prison; (2) had

violated his right to access the courts by (a) confiscating his legal files and

hindering his access to them, (b) hindering his communications with a jailhouse

lawyer and denying access to a law library, (c) reviewing his legal files, and

(d) interfering with his legal mail; and (3) had violated his right to be free from

retaliation for having exercised his First Amendment rights. For his Eighth

Amendment claims, he alleged that Defendants (1) had transferred him to

out-of-state prisons where he suffered conditions amounting to cruel and unusual

punishment; (2) had subjected him to inhumane transport and cell conditions in

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Wyoming, including the denial of basic necessities; (3) had denied him medical

treatment or rendered inadequate medical treatment for various conditions,

including a sleepwalking disorder; and (4) had assaulted him while transferring

him within the prison. And under the Fourteenth Amendment, Mr. Gee

(1) challenged Defendants’ decisions (a) to transfer him to prisons in other states,

(b) to place him in an isolation cell and in segregation at WSP, and (c) to place

information in his file and classify him at certain levels; (2) challenged particular

disciplinary actions and hearings; (3) alleged that he had been deprived of

property; and (4) alleged that he had been subjected to harassment,

discrimination, and equal-protection violations.

Defendants moved to dismiss the complaint for failure to state a claim. 2

They submitted numerous documents in support of their motion. Although they

did not prepare a formal Martinez report, see Martinez v. Aaron, 570 F.2d 317,

319 (10th Cir. 1978) (per curiam) (recommending preparation by state prison

officials of investigative report to present to federal court in § 1983 suit brought

by prisoner), some of their submissions were grievances and grievance responses,

typical of the types of documents usually tendered in a Martinez report. They

2
Defendants’ motion cited both Fed. R. Civ. P. 12(b)(1) (lack of
subject-matter jurisdiction) and Fed. R. Civ. P. 12(b)(6) (failure to state a claim),
but the district court’s decision and the question on appeal involve only Rule
12(b)(6) .

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also attached filings from Mr. Gee’s prior lawsuits and a variety of prison

records, including monitoring reports, internal communications, and memoranda.

The district court dismissed the claims in Mr. Gee’s complaint on several

different grounds. With respect to the First Amendment claims, it ruled that the

access-to-the-courts claims failed to allege all the required elements of the cause

of action and that the allegations supporting the other claims were too vague and

conclusory or failed to establish unconstitutional regulation or action. It

dismissed the Eighth Amendment claims because the record contradicted

Mr. Gee’s allegations of denial of basic necessities; some claims were

time-barred; the allegations regarding Mr. Gee’s alleged sleepwalking disorder

were frivolous; the allegations regarding his other medical conditions showed

merely his disagreement with the treatment, not deliberate indifference to his

conditions; and the record contradicted Mr. Gee’s allegations that he was

assaulted during a transfer within the WSP. As for the Fourteenth Amendment

claims, the district court dismissed them because one of his equal-protection

arguments was frivolous, he had no liberty interest in his classification status, he

had already pursued some of his claims in a prior lawsuit, his placement in

segregation was not so atypical and significant as to create a liberty interest, his

claims about false information in his base file were speculative, other claims

consisted entirely of conclusory allegations, and his allegations of being deprived

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of property did not rise to a constitutional violation because he did not allege that

there was no adequate state remedy available.

II. DISCUSSION

A. Legal Standards for Stating a Claim

We review de novo the grant of a Rule 12(b)(6) motion to dismiss for

failure to state a claim. See Howard v. Waide, 534 F.3d 1227, 1242–43 (10th Cir.

2008). “A pleading that states a claim for relief must contain . . . a short and

plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

For many years the federal courts followed the rule that a claim can be

dismissed only if “it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.” Conley v.

Gibson, 355 U.S. 41, 45–46 (1957). In 2007, however, the Supreme Court retired

the Conley standard, stating that “Conley’s ‘no set of facts’ language has been

questioned, criticized, and explained away long enough.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 562 (2007). “The phrase is best forgotten as an

incomplete, negative gloss on an accepted pleading standard: once a claim has

been stated adequately, it may be supported by showing any set of facts consistent

with the allegations in the complaint.” Id. at 563. Although restating the

fundamental rule that the court, on a motion to dismiss, must assume that all

factual “allegations in the complaint are true (even if doubtful in fact),”

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id. at 555, it said the plaintiff must provide “more than labels and conclusions [or]

a formulaic recitation of the elements of a cause of action,” and “[f]actual

allegations must be enough to raise a right to relief above the speculative level,”

id. The Court suggested that the test is one of plausibility, holding that to state a

claim of a conspiracy under § 1 of the Sherman Act:

requires a complaint with enough factual matter (taken as true) to
suggest that an agreement was made. Asking for plausible grounds
to infer an agreement does not impose a probability requirement at
the pleading stage; it simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of illegal
agreement. . . . [A]n allegation of parallel conduct and a bare
assertion of conspiracy will not suffice. Without more, parallel
conduct does not suggest conspiracy, and a conclusory allegation of
agreement at some unidentified point does not supply facts adequate
to show illegality.

Id. at 556–57. The Court further indicated that an allegation of parallel conduct

absent context implying a meeting of the minds “stops short of the line between

possibility and plausibility of entitlement to relief.” Id. at 557 (brackets and

internal quotation marks omitted).

Although Twombly involved the Sherman Act, this court inferred that the

“plausibility” standard need not be restricted to the antitrust context, but also

should be applied to prisoner complaints. See, e.g., Howard, 534 F.3d at 1243;

Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). The Supreme Court

validated this interpretation in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), where it

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applied Twombly in the context of a prisoner challenge to the conditions of his

confinement. A thorough discussion of Iqbal will be helpful.

Javaid Iqbal, a citizen of Pakistan and a Muslim, was arrested in the United

States on charges of identification-document fraud after the terrorist attacks on

September 11, 2001. See id. at 1943. He was detained at the Metropolitan

Detention Center (MDC) in Brooklyn, New York, where he was designated a

person “of high interest” in the investigation of the terrorist attacks. Id. (internal

quotation marks omitted). He was placed in a section of the MDC known as the

Administrative Maximum Special Housing Unit (ADMAX SHU), in which

detainees were kept in lockdown 23 hours a day and were subjected to other

stringent security measures. See id. Iqbal pleaded guilty to the charges against

him and was removed to Pakistan after serving a term of imprisonment. See id.

He then filed a Bivens action, see Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), against various federal officials

involved in his detainment. See Iqbal, 129 S. Ct. at 1943. His complaint focused

on his treatment while confined to ADMAX SHU. See id. at 1943-44. He alleged

that John Ashcroft, the former Attorney General of the United States, and Robert

Mueller, the Director of the Federal Bureau of Investigation, had designated him

as a “person of high interest” because of his race, religion, or national origin, in

violation of the First and Fifth Amendments to the Constitution. Id. at 1944.

Specifically, he alleged that both Ashcroft and Mueller approved a “policy of

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holding post-September-11th detainees in highly restrictive conditions of

confinement until they were ‘cleared’ by the FBI,” id. (internal quotation marks

omitted), and that they both “knew of, condoned, and willfully and maliciously

agreed to subject [Iqbal] to harsh conditions of confinement as a matter of policy,

solely on account of his religion, race, and/or national origin and for no legitimate

penological interest,” id. (brackets and internal quotation marks omitted).

The Supreme Court concluded that Iqbal had failed to state a claim entitling

him to relief. See id. at 1954. Although the pleading standard of Fed. R. Civ. P.

8 “does not require detailed factual allegations,” said the Court, “it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1949

(internal quotation marks omitted). It explicitly adopted a plausibility standard,

explaining further:

To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.

Id. (internal quotation marks and citations omitted).

“Taken as true,” the Court noted, “the[] allegations [in Iqbal’s complaint]

are consistent with [Ashcroft and Mueller’s] purposefully designating detainees

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‘of high interest’ because of their race, religion, or national origin.” Id. at 1951.

But in light of “more likely explanations,” the Court concluded that Iqbal’s

allegations did “not plausibly establish this purpose.” Id. Because the

September 11 terrorist attacks were perpetrated by 19 Arab Muslim hijackers who

were members of al Qaeda, an Islamic fundamentalist group, it was “no surprise

that a legitimate policy directing law enforcement to arrest and detain individuals

because of their suspected link to the attacks would produce a disparate,

incidental impact on Arab Muslims, even though the purpose of the policy was to

target neither Arabs nor Muslims.” Id. That the policies approved by Ashcroft

and Mueller represented invidious discrimination was “not a plausible

conclusion.” Id. at 1951–52. Accordingly, the Court held that Iqbal’s complaint

failed to state a claim against Ashcroft and Mueller. See id. at 1954.

Iqbal establishes the importance of context to a plausibility determination.

The allegations in Iqbal’s complaint had to be read in light of the events of

September 11. Nowhere in the law does context have greater relevance to the

validity of a claim than prisoner civil-rights claims. Prisons are a unique

environment, and the Supreme Court has repeatedly recognized that the role of

the Constitution within their walls is quite limited. Government conduct that

would be unacceptable, even outrageous, in another setting may be acceptable,

even necessary, in a prison. Consequently, a prisoner claim will often not be

plausible unless it recites facts that might well be unnecessary in other contexts.

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For example, as we will discuss more fully below, a prisoner claim may not be

plausible unless it alleges facts that explain why the usual justifications for the

complained-of acts do not apply. When every prison places legitimate restrictions

on prisoner mail, a First Amendment claim of interference with mail ordinarily is

not plausible absent factual allegations showing at least that the alleged

interference violated prison rules or that the applicable rule was invalid, either

generally or in the specific context of the claim. Without such further allegations,

the prisoner’s First Amendment claim is no more plausible than an antitrust claim

based solely on allegations of parallel conduct.

Although the plausibility standard has been criticized by some as placing an

improper burden on plaintiffs, denying them proper access to the courts, that

criticism would not apply to the restrictions on prisoner complaints described

above. One of the chief concerns of critics is that plaintiffs will need discovery

before they can satisfy plausibility requirements when there is asymmetry of

information, with the defendants having all the evidence. But prisoners claiming

constitutional violations will rarely suffer from information asymmetry (although

that could have been the situation in Iqbal itself). Not only do prisoners

ordinarily know what has happened to them; but they will have learned how the

institution has defended the challenged conduct when they pursue the

administrative claims that they must bring as a prerequisite to filing suit.

See 42 U.S.C. § 1997e; Jones v. Bock, 549 U.S. 199, 211 (2007). To be sure, a

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pro se prisoner may fail to plead his allegations with the skill necessary to state a

plausible claim even when the facts would support one. But ordinarily the

dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, see

Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[D]ismissal 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.” (brackets and internal quotation marks omitted));

and a careful judge will explain the pleading’s deficiencies so that a prisoner with

a meritorious claim can then submit an adequate complaint, cf. Nasious v. Two

Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (reversing

dismissal with prejudice, in part because of district court’s failure to explain to

pro se plaintiff what is required by Fed. R. Civ. P. 8).

B. Materials That Can Be Reviewed on Motions Under Fed. R. Civ.
P. 12(b)(6)

Before determining whether Mr. Gee’s complaint adequately alleges his

claims under the principles discussed above, we must address the materials

examined by the district court in ruling on the Rule 12(b)(6) motion. As

discussed above, Defendants supported their motion with numerous documents,

and the district court cited portions of those materials in granting the motion.

Such reliance was improper.

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 Generally, the sufficiency of a complaint must rest on its contents alone.

See, e.g., Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010) (“The

district court’s disposition of the complaint was irregular. Although it

characterized its action as a dismissal for failure to state a claim, the court did not

restrict itself to looking at the complaint.”). There are exceptions to this

restriction on what the court can consider, but they are quite limited:

(1) documents that the complaint incorporates by reference, see Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Oxendine, 241 F.3d at

1275 (documents attached as exhibits to the complaint); (2) “documents referred

to in the complaint if the documents are central to the plaintiff’s claim and the

parties do not dispute the documents’ authenticity,” Jacobsen v. Deseret Book

Co., 287 F.3d 936, 941 (10th Cir. 2002); and (3) “matters of which a court may

take judicial notice,” Tellabs, Inc., 551 U.S. at 322. Martinez reports are not

within the exception unless “the plaintiff challenges a prison’s policies or

established procedures and the Martinez report’s description of the policies or

procedures remains undisputed after plaintiff has an opportunity to respond.”

Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991). If a district court intends

to rely on other evidence, it must convert the Rule 12(b)(6) motion to a motion

for summary judgment, giving proper notice to the parties. See Fed. R. Civ. P.

12(d); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384

(10th Cir. 1997); see also Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993)

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(“In determining whether a plaintiff has stated a claim, the district court may not

look to the Martinez report, or any other pleading outside the complaint itself, to

refute facts specifically pled by a plaintiff, or to resolve factual disputes.”); Janke

v. Price, 43 F.3d 1390, 1392 (10th Cir. 1994) (district court erred in using

Martinez hearing to resolve disputed factual issues); Northington v. Jackson,

973 F.2d 1518, 1521 (10th Cir. 1992) (Martinez “process is designed to aid the

court in fleshing out possible legal bases of relief from unartfully drawn pro se

prisoner complaints, not to resolve material factual issues”).

Defendants relied on the Jacobsen exception, asserting that their attached

documents were referred to in Mr. Gee’s complaint and central to his claims. But

we are not convinced that all the documents fit this exception, especially the

voluminous grievances and prison responses. And even assuming that the

Jacobsen exception applied and the district court did not err initially in reviewing

the materials, the court improperly relied on them to refute Mr. Gee’s factual

assertions and effectively convert the motion to one for summary judgment

without notice to Mr. Gee. In two instances the district court adopted

Defendants’ version of the facts in concluding that Mr. Gee did not state a claim.

See R. Doc. 74 at 10 (dismissing claim of denial of hygiene items because of

Defendants’ representations that Mr. Gee’s hygiene items were available upon

request); id. at 13 (with regard to allegations of assault, accepting Defendants’

representation that their review of videotapes showed no use of force).

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 Nevertheless, “[t]he failure to convert a 12(b)(6) motion to one for

summary judgment where a court does not exclude outside materials is [not]

reversible error [if] the dismissal can be justified without considering the outside

materials.” GFF Corp., 130 F.3d at 1384. We therefore proceed to examine the

complaint and discuss the claims without reference to Defendants’ materials.

C. Mr. Gee’s Complaint

1. Paragraphs That Sufficiently Allege a Constitutional
Violation

A few of the paragraphs in Mr. Gee’s complaint sufficiently allege a

violation of the First or Eighth Amendment.

a. First Amendment Claims

(1) Right to Free Speech

Several of Mr. Gee’s allegations involve his First Amendment right to free

speech, in particular his right to communicate with persons outside the prison.

See Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). In the First Amendment

context, the Supreme Court has acknowledged that “federal courts must take

cognizance of the valid constitutional claims of prison inmates. Prison walls do

not form a barrier separating prison inmates from the protections of the

Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987) (citation omitted). It also

has recognized, however, that “courts are ill equipped to deal with the

increasingly urgent problems of prison administration and reform.” Id. (internal

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quotation marks omitted). Accordingly, prisoners’ rights may be restricted in

ways that “would raise grave First Amendment concerns outside the prison

context.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). In particular, “when

a prison regulation impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests.” Turner,

482 U.S. at 89.

The question with regard to Mr. Gee’s First Amendment claims is, in light

of Turner’s deferential review and the plausibility standard of Twombly and Iqbal,

how much does Mr. Gee have to plead to state an adequate claim? As discussed

above, he has to plead sufficient factual allegations “to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. He must do more than

plead facts that establish “a sheer possibility that a defendant has acted

unlawfully,” or “facts that are merely consistent with a defendant’s liability.”

Iqbal, 129 S. Ct. at 1949 (internal quotation marks omitted). Because Turner

allows prohibitions and restrictions that are reasonably related to legitimate

penological interests, Mr. Gee must include sufficient facts to indicate the

plausibility that the actions of which he complains were not reasonably related to

legitimate penological interests. This is not to say that Mr. Gee must identify

every potential legitimate interest and plead against it; we do not intend that

pro se prisoners must plead, exhaustively, in the negative in order to state a claim.

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It is sufficient that he plead facts from which a plausible inference can be drawn

that the action was not reasonably related to a legitimate penological interest.

In paragraphs 27, 33, and 53, Mr. Gee alleges that on August 2, 2002,

November 15, 2002, and September 4, 2005, Defendant Lopez intentionally, and

for the purpose of harassing him, confiscated and destroyed letters sent to him by

persons outside the prison “under the guise” of sticker and perfume violations. R.

Doc. 1 at 11, 12, 16. 3 Although prison officials may regulate the content of

incoming mail and properly ban items such as stickers, see Thornburgh, 490 U.S.

at 416; Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990), there is no

legitimate penological reason to restrict mail simply to harass inmates or to

confiscate mail that complies with prison policy. These allegations state plausible

claims of violations of Mr. Gee’s First Amendment rights.

In paragraphs 28 and 29, Mr. Gee alleges that on August 11 and August 12,

2002, Defendant Lopez returned to him outgoing letters that had “appropriate

postage affixed . . . without reason for not sending [them] to the Post Office” for

mailing. R. Doc. 1 at 11. A prisoner has a constitutional right to have his

outgoing mail processed for delivery, absent legitimate penological interests to

the contrary. See Treff, 74 F.3d at 195. Because Mr. Gee alleges that he placed

adequate postage on his letters and that Defendant Lopez gave no reason for not

3
Our citations to Mr. Gee’s complaint use the page numbers assigned by the
court’s electronic docketing system.

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processing his mail, these paragraphs state plausible claims of violations of

Mr. Gee’s First Amendment rights.

A closer question is raised by Mr. Gee’s allegations regarding mail from

his sister. Paragraph 13 alleges that on March 5, 2002, Defendant Pacheco had

him placed in an isolation cell on incommunicado status, during which he was not

allowed to send out or receive personal mail, and that he was held in this

incommunicado status until April 1, 2002. Paragraph 16 further alleges that

during this period a letter from his estranged sister initially was mistakenly given

to him and then confiscated by Defendant Halter or another official because of his

incommunicado status, before he could read it. The letter was never returned to

him. There are certainly legitimate penological reasons for isolating a prisoner

for limited periods of time, but it is not apparent why a prisoner should be

permanently deprived of a letter from an estranged family member solely because

it arrived during such temporary isolation. The Supreme Court has recognized

that “[a]ccess is essential . . . to families and friends of prisoners who seek to

sustain relationships with them.” Thornburgh, 490 U.S. at 407. Although

Mr. Gee did not allege that prison officials provided no reason for the permanent

confiscation of his sister’s letter, we think that such confiscation is on its face

sufficiently problematic that the claim deserves to proceed beyond the pleading

stage. See id. at 414 (applying Turner’s reasonableness standard “with

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confidence” that such standard “is not toothless” (internal quotation marks

omitted)).

(2) Retaliation

Mr. Gee also alleges that Defendants took various actions against him in

retaliation for exercising his First Amendment rights. It is well-settled that

“[p]rison officials may not retaliate against or harass an inmate because of the

inmate’s exercise of his right of access to the courts.” Smith, 899 F.2d at 947. As

discussed later in this opinion, we agree with the district court that most of the

retaliation allegations fail to state a claim. But the allegations in paragraphs 34

through 42 (1) identify constitutionally protected activity in which Mr. Gee

engaged (filing specific grievances against Defendants and filing a particular

habeas petition with the court); (2) describe a responsive action that would “chill

a person of ordinary firmness from continuing to engage in that activity” (transfer

to an out-of-state supermax prison); and (3) recite facts indicating that the action

“was substantially motivated as a response to [his] exercise of constitutionally

protected conduct” (that Defendants were aware of his protected activity, that his

protected activity complained of Defendants’ actions, and that the transfer was in

close temporal proximity to the protected activity). Shero v. City of Grove,

510 F.3d 1196, 1203 (10th Cir. 2007) (listing elements of a First Amendment

retaliation claim); see Fogle v. Pierson, 435 F.3d 1252, 1263-64 (10th Cir. 2006)

(concluding that it was inappropriate to dismiss claim of retaliatory transfer);

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Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir. 1990) (“[W]hile a prisoner

enjoys no constitutional right to remain in a particular institution and generally is

not entitled to due process protections prior to such a transfer, prison officials do

not have the discretion to punish an inmate for exercising his first amendment

rights by transferring him to a different institution.” (internal quotation marks

omitted)). The allegations may be improbable, but they are not implausible.

Accordingly, they state a claim for relief, and they should have been allowed to

proceed beyond the pleading stage.

b. Eighth Amendment Claim

In paragraphs 69, 108, and 109, Mr. Gee alleges that as he was being

transported between prisons, he informed Pacheco and Everett that he had not had

food or water for more than 24 hours, but Everett said “‘he didn’t care,’” and both

Defendants restrained him with a stun belt, belly chains, handcuffs, and a black

box covering the handcuffs, which prevented him from accessing the food and

water provided to the other prisoners being transported. R. Doc. 1 at 18–19, 26.

Because these paragraphs allege sufficient facts to establish both elements of an

Eighth Amendment claim—the objective prong of sufficiently serious deprivation

and the subjective prong of deliberate indifference, see Estelle v. Gamble,

429 U.S. 97, 106 (1976); Howard, 534 F.3d at 1236–37 (discussing the elements

of an Eighth Amendment claim)—they state a plausible claim for relief. See

Schilling v. Transcor Am., LLC, No. C 08-941 SI, 2010 WL 583972, at *1, *12

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(N.D. Cal. Feb. 16, 2010) (granting motion for class certification in lawsuit

challenging transport company’s policy of shackling prisoners and depriving them

of access to regular food, water, exercise, beds, and bathrooms during transport).

Defendants argue that this claim is time-barred because it occurred on

January 25, 2002, four years and two days before the district court received

Mr. Gee’s complaint. The forum state’s statute of limitations for personal-injury

actions sets the limitations period for § 1983 actions. See Wilson v. Garcia,

471 U.S. 261, 269, 276 (1985). The most analogous Wyoming limitations

provision is Wyo. Stat. Ann. § 1-3-105(a)(iv)(C) (setting four-year limitations

period for “[a]n injury to the rights of the plaintiff, not arising on contract and not

herein enumerated”), making the applicable limitations period four years. See

Sullivan v. Bailiff, 867 F. Supp. 992, 996 (D. Wyo. 1994). This claim accrued on

the date of the incident, see Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir.

2005) (“A civil rights action accrues when the plaintiff knows or has reason to

know of the injury which is the basis of the action.” (internal quotation marks

omitted)), so the court received the complaint just after the limitations period

expired.

In his response to Defendants’ motion to dismiss, however, Mr. Gee

contended that he was entitled to equitable tolling of the limitations period.

Cf. United States v. Gabaldon, 522 F.3d 1121, 1126 (10th Cir. 2008) (officials’

seizure of legal materials just before filing deadline would constitute

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“extraordinary circumstances” warranting 36-day equitable tolling in habeas

case). State law governs tolling in § 1983 cases, see Fogle, 435 F.3d at 1258, and

we have found nothing to indicate that Wyoming has rejected equitable tolling.

Mr. Gee’s brief argument for such tolling was vague regarding why he could not

have brought this claim in a timely manner. Nevertheless, given that the delay

was only two days past the statutory deadline, the claim should not have been

dismissed without giving Mr. Gee an opportunity to describe with greater

specificity why equitable tolling should apply. It will be for the district court in

the first instance to determine whether Wyoming would allow equitable tolling

and, if so, whether Mr. Gee’s allegations justify equitable tolling.

2. Allegations that Fail to State a Claim

In contrast to the paragraphs discussed above, the other allegations in

Mr. Gee’s complaint are insufficient to state a claim.

a. First Amendment Claims

Some of Mr. Gee’s First Amendment allegations concern treatment imposed

when he was not in Defendants’ physical custody, but in out-of-state prisons.

Mr. Gee has not alleged sufficient facts to show that Defendants should be liable

for his treatment at the hands of non-Defendants. See, e.g., Foote v. Spiegel,

118 F.3d 1416, 1423 (10th Cir. 1997) (“Individual liability under § 1983 must be

based on personal involvement in the alleged constitutional violation.”).

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 Mr. Gee’s bare allegations (1) of brief delays in mailing or receiving his

correspondence and (2) of denial of his right to communicate with persons outside

the prison when he was placed in isolation for approximately 25 hours on

February 28, 2002, do not rise to the level of constitutional violations. As for his

complaints that one letter was censored and that Defendants withheld and forced

him to dispose of magazines to which he subscribed, such restrictions are

sufficiently commonplace in the prison setting, see, e.g., Thornburgh, 490 U.S. at

415-19 (upholding restrictions on prisoners’ incoming mail); Smith, 899 F.2d at

944 (complaint about undelivered catalogues did not raise a constitutional issue),

that his claim is not plausible absent allegations showing that the restrictions were

imposed in violation of prison regulations or that the regulations invoked were

unconstitutional in the circumstances. And Mr. Gee’s allegation that Defendants

transferred him to Nevada to prevent him from communicating with outside

persons (because Nevada does not provide stamps to indigents) is too conclusory

and speculative to satisfy Iqbal standards.

Mr. Gee also fails to state a proper claim of violations of his constitutional

right to access the courts. He alleges that Defendants engaged in confiscating,

reviewing, and hindering access to his legal files, hindering his communications

with a jailhouse lawyer, denying him access to a law library, and interfering with

his legal mail. But as the district court correctly held, a prisoner must

demonstrate actual injury from interference with his access to the courts—that is,

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that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous

legal claim concerning his conviction or his conditions of confinement. See

Lewis v. Casey, 518 U.S. 343, 351–55 (1996). Mr. Gee’s access-to-the-courts

allegations fail this test.

Many of Mr. Gee’s allegations do not connect a deprivation to any injury at

all. Some allegations—such as his assertion that he “was unable to research and

prepare initial pleading to claims of illegal disciplinary guilty findings, theft of

personal and legal property, cruel and unusual punishment, [and] unable to follow

up on Parkhurst v. Uphoff, No 95-8003,” R. Doc. 1 at 6—are too conclusory to

present a plausible claim that he was impeded in his effort to pursue a

nonfrivolous legal claim. And where he does provide detail regarding an alleged

injury, it is implausible that he was deprived of the opportunity to present a

nonfrivolous legal claim. For example, he states that Defendants’ interference

caused the dismissal of a New York habeas petition and two Wyoming habeas

petitions. But the only events of interference described in the complaint occurred

well after the dismissal of both the New York petition and the first Wyoming

petition. 4 (We take judicial notice of court records in the underlying proceedings.

See Tellabs, Inc., 551 U.S. at 322; St. Louis Baptist Temple, Inc. v. Fed. Deposit

4
Mr. Gee’s appellate filings further discuss these dismissals and allege that
Defendants precluded him from pursuing his appeal in this court to challenge the
dismissal of the first Wyoming petition, but none of this information is included
in his complaint.

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Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[I]t has been held that federal

courts, in appropriate circumstances, may take notice of proceedings in other

courts, both within and without the federal judicial system, if those proceedings

have a direct relation to matters at issue.”)) And he cannot establish any injury

caused by Defendants with respect to his second Wyoming petition, because he

admits that it did not present a proper habeas claim.

Finally, with the exception of the allegations in paragraphs 34 through 42

discussed above, Mr. Gee’s allegations of retaliation for exercising his First

Amendment rights are vague and conclusory. “Mere allegations of constitutional

retaliation will not suffice; plaintiffs must rather allege specific facts showing

retaliation because of the exercise of the prisoner’s constitutional rights.”

Frazier, 922 F.2d at 562 n.1.

b. Eighth Amendment Claims

We next turn to Mr. Gee’s Eighth Amendment claims. As with several of

his First Amendment allegations, some of the complaint’s paragraphs concern his

conditions of confinement when he was not in Defendants’ physical custody, and

he has not shown how Defendants were responsible for those conditions. See,

e.g., Foote, 118 F.3d at 1423. Those allegations fail to state a proper claim.

Other paragraphs describe Defendants’ confiscating Mr. Gee’s canteen

items, depriving him of hygiene items for approximately 25 hours, and

incarcerating him for four weeks in an isolation cell with limited outdoor

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recreation and lack of access to hygiene items. Again, however, deprivations of

possessions and privileges are consistent with reasonable penological practices.

The complaint’s allegations contain insufficient factual information to conclude

that a constitutional violation is plausible, rather than merely possible. See, e.g.,

Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (“Denial of recreation

for a short period, per se, is not a constitutional violation.”); Harris v. Fleming,

839 F.2d 1232, 1236 (7th Cir. 1988) (no Eighth Amendment violation when

plaintiff was held in segregation without outdoor exercise for 28 days).

As for Mr. Gee’s allegations concerning Dr. Coyle, the district court

correctly observed that some allegations indicate not a lack of medical treatment,

but a disagreement with Dr. Coyle’s medical judgment in treating a condition

with certain medications rather than others. For example, Mr. Gee alleges that he

was not given the medications he desired for his headaches; but he admits being

given other medications, so his complaint amounts to merely a disagreement with

Dr. Coyle’s medical judgment concerning the most appropriate treatment. An

Eighth Amendment violation requires both a sufficiently serious medical need and

deliberate indifference by the health-care provider. See Estelle, 429 U.S. at 106.

Disagreement with a doctor’s particular method of treatment, without more, does

not rise to the level of an Eighth Amendment violation. See id.; Johnson v.

Stephan, 6 F.3d 691, 692 (10th Cir. 1993).

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 Mr. Gee also complains that Dr. Coyle refused to recognize or treat a

sleepwalking disorder, posttraumatic stress disorder, anxiety, and certain lumps

that he is convinced must be tumors. Nothing in the complaint, however, alleges

the existence of a sufficiently serious medical need, which is “one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.”

Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation

marks omitted). The complaint identifies no medical support for the existence of

the disorders and describes no symptoms that would alert a lay person to the need

for treatment. Rather, the complaint alleges only a failure to treat self-diagnosed

ailments, which is insufficient to establish an Eighth Amendment violation. 5 See

Aswegan v. Henry, 49 F.3d 461, 464–65 (8th Cir. 1995); Kayser v. Caspari,

16 F.3d 280, 281 (8th Cir. 1994); cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (prisoner stated a claim because he alleged that doctors had

diagnosed him with hepatitis C, yet officials removed him from treatment

program). The remaining allegations against Dr. Coyle, which also include

allegations against other Defendants, fail because they are vague and conclusory.

5
Of course, even if information concerning a medical diagnosis were
included in the complaint, Mr. Gee may still fail to establish the existence of a
serious medical need that can support an Eighth Amendment claim. See Riddle v.
Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (prisoners’ allegations of mental
disorder did not establish serious medical need).

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 Finally, Mr. Gee’s allegation that he was assaulted while being transported

within WSP is not sufficiently specific to identify an Eighth Amendment

violation. He uses the bare term assaulted without explaining what Defendants

allegedly did. But not “every malevolent touch by a prison guard gives rise to a

federal cause of action. . . . Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates a prisoner’s

constitutional rights.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal

quotation marks omitted). Mr. Gee may have used the term assault to mean a

mere unwelcome touching. And the “assault” could have been justified by simply

a need for him to move faster. In the prison context, more than the word assault

is necessary to allege a plausible violation of the Eighth Amendment.

c. Fourteenth Amendment Claims

As with the majority of the complaint’s allegations of violations of the First

and Eighth Amendments, Mr. Gee’s Fourteenth Amendment paragraphs also fail

to state any claims.

His allegations in paragraphs 103 through 107 all concern events in May

2001, so the statute of limitations for these claims expired months before he filed

his complaint in January 2006. On appeal he argues that his claims should not be

time-barred, asserting that he was denied access to a law library and his essential

legal property for almost four years. But he does not specify any excuse for delay

after his return to custody in Wyoming in February 2005. Even assuming that

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Wyoming would recognize equitable tolling, it almost certainly would incorporate

a diligence requirement. See Swinney v. Jones, 199 P.3d 512, 515 (Wyo. 2008)

(“The very purpose of a statute of limitations is to require diligence and prevent

parties from sleeping on their rights.” (internal quotation marks omitted));

Holland v. Florida, 130 S. Ct. 2549, 2565 (2010) (a habeas petitioner is entitled

to equitable tolling only if he pursues his rights with reasonable diligence). And

Mr. Gee’s taking 11 months after his return to Wyoming to prepare his fact-based

complaint was not adequate diligence. See Braxton v. Zavaras, 614 F.3d 1156,

1162 (10th Cir. 2010) (equitable tolling not warranted when prisoners failed to

file suit within the ample time left after exhausting their administrative remedies);

Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[A] pro se plaintiff

requires no special legal training to recount the facts surrounding his alleged

injury, and he must provide such facts if the court is to determine whether he

makes out a claim on which relief can be granted.”). Because he has failed to

establish that he acted with diligence, we affirm the dismissal with prejudice of

all claims regarding events in 2001. 6

With regard to Mr. Gee’s allegations of being deprived of liberty without

due process, he fails to establish the existence of a protected liberty interest. As a

matter of law, he has no liberty interest in being incarcerated in a particular

6
In addition to paragraphs 103 through 107, this analysis applies also to the
First Amendment claims in paragraphs 3 through 6 and the Eighth Amendment
claims in paragraphs 65 through 68.

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institution, see Meachum v. Fano, 427 U.S. 215, 223–25 (1976), or in

discretionary classification decisions by prison officials, see Cardoso v. Calbone,

490 F.3d 1194, 1197–98 (10th Cir. 2007). Nor does he have a liberty interest in

his conditions of confinement (including placement in isolation and segregation),

unless the facts show that the 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); see also Cosco v. Uphoff, 195 F.3d

1221, 1224 (10th Cir. 1999) (applying Sandin to regulations concerning prison

conditions). 7 In most instances, Mr. Gee pleaded no facts to support a claim of

atypical and significant deprivation, and in the few instances when he did plead

any facts, he did not plead enough facts to make it plausible that he suffered an

atypical and significant hardship. Finally, with regard to his allegations of false

information in his base file, it is not enough to allege that a government agency or

official has published false or defamatory information. See Paul v. Davis,

424 U.S. 693, 712 (1976). Rather, to establish a constitutional violation, a

plaintiff must show that an additional action taken on the basis of the information

deprived him of a liberty or property interest. See id. Mr. Gee does not plead

facts that meet this standard.

7
None of the conditions alleged by Mr. Gee rise to the level of conditions
“exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force.” Sandin, 515 U.S. at 484.

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 Similarly, Mr. Gee fails to plead sufficient facts to state a claim of

deprivation of property without due process, because he does not allege the lack

of an adequate state remedy for that deprivation. “[A]n unauthorized intentional

deprivation of property by a state employee does not constitute a violation of the

procedural requirements of the Due Process Clause of the Fourteenth Amendment

if a meaningful postdeprivation remedy for the loss is available,” and “the state’s

action is not complete until and unless it provides or refuses to provide a suitable

postdeprivation remedy,” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus,

“[i]n order to state a claim under § 1983, a complaint must allege facts sufficient

to show deprivation, in this case the lack of an adequate state remedy.” Durre v.

Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (per curiam); cf. Freeman v. Dep’t

of Corr., 949 F.2d 360, 362 (10th Cir. 1991) (“[U]nlike in Durre, the appellant

here has alleged specific facts showing that the state procedure has been

unresponsive and inadequate. If in fact the state remedy was constitutionally

insufficient, the appellant may have a cause of action under section 1983 for the

confiscation of his property.”).

Mr. Gee’s claims regarding certain disciplinary proceedings in March and

April 2002 fail because, as the district court determined, they were adjudicated in

another lawsuit, and are therefore barred by claim preclusion. See Yapp v. Excel

Corp., 186 F.3d 1222, 1226 (10th Cir. 1999) (setting forth elements of claim

preclusion). The district court properly referred to its records to dismiss these

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allegations. See Tellabs, Inc., 551 U.S. at 322; St. Louis Baptist Temple, 605 F.2d

at 1172 (“[A] court may . . . take judicial notice, whether requested or not . . . of

its own records and files, and facts which are part of its public records.”). Two

additional paragraphs concern challenges to other disciplinary proceedings, but

the allegations are too conclusory to support a claim that the proceedings violated

due-process protections.

In paragraphs 141 and 142, Mr. Gee complains that prison officials

searched his “cell without allowing him to observe the cell search, where all other

prisoners housed on plaintiff’s housing unit were allowed to observe[] their cell

searches.” R. Doc. 1 at 32. Mr. Gee does not have a Fourteenth Amendment

right to observe his cell search. See Block v. Rutherford, 468 U.S. 576, 589–91

(1984). And although he does have a right to be treated the same as people

similarly situated to him, see City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985) (equal protection “is essentially a direction that all persons

similarly situated should be treated alike”), he did not allege any injury from

being unable to watch the cell search.

Finally, Mr. Gee’s remaining allegations of racism, discrimination,

equal-protection violations, and retaliation are entirely conclusory. In paragraph

121, for example, he complains that officials have enacted a property policy that

discriminates against indigent prisoners. But he fails to identify the policy or

describe it well enough to convey the basis for his claim. Other paragraphs

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complain of actions taken as the result of discrimination, but he fails to explain

the ground for the alleged discrimination.

3. Dismissal With Prejudice Without Opportunity to Amend

The district court dismissed the entire complaint with prejudice. But

“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.” Oxendine, 241 F.3d at 1275

(brackets and internal quotation marks omitted). “[T]he plaintiff whose factual

allegations are close to stating a claim but are missing some important element

that may not have occurred to him, should be allowed to amend his complaint.”

Hall, 935 F.2d at 1110. There is no indication that the district court considered

allowing Mr. Gee to amend his complaint with regard to any of his allegations.

True, only a few of the complaint’s 154 paragraphs state plausible claims

for relief under Twombly and Iqbal. The district court, however, should have

afforded Mr. Gee the opportunity to amend his complaint before dismissing every

claim with prejudice. On remand, the district court shall allow Mr. Gee an

opportunity to seek leave to file an amended complaint that satisfies Twombly and

Iqbal, except for those claims that are barred by preclusion or the statute of

limitations so that amending those claims would be futile. See Iqbal, 129 S. Ct. at

1954 (remanding for the court of appeals to determine whether to remand to the

district court so the plaintiff could seek leave to amend his complaint).

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III. CONCLUSION

The dismissal with prejudice of paragraphs 115–18 and 120, which are

subject to claim preclusion, and paragraphs 3–6, 65–68, and 103–107, which are

time-barred, is AFFIRMED. Thus, the dismissal of Defendants Lenny Stilwell

and S. Kelley, who are named only in the precluded claims, is AFFIRMED. The

remainder of the district court’s judgment is REVERSED and the case is

REMANDED for further proceedings, with instructions for the district court to

allow Mr. Gee to seek leave to file an amended complaint, if he wishes, to be

evaluated according to the standards set forth in this opinion. The district court

may place appropriate restrictions on any amended complaint, such as directing

Mr. Gee only to elaborate on the events that were identified in his original

complaint, and not to attempt to add any additional or different claims. All

pending motions before this court are DENIED.

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