Toevs v. Reid

FILED
United States Court of Appeals
Tenth Circuit

June 20, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANOS TOEVS,

Plaintiff-Appellant,

v. No. 10-1535

LARRY REID; SUSAN JONES;
CASE MANAGER J. GLIDEWELL;
CASE MANAGER KRISTI MOORE,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:06-CV-01620-CBS-KMT)

Submitted on the briefs: *

Janos Toevs, Plaintiff-Appellant, Pro se.

Andrew M. Katarikawe, Senior Assistant Attorney General, Civil Litigation and
Employment Law Section, John W. Suthers, Attorney General, Denver, Colorado
for Defendants-Appellees.

Before MATHESON, McKAY, and EBEL, 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.
EBEL, Circuit Judge.

Janos Toevs, proceeding pro se, appeals the district court’s grant of

summary judgment to defendants in his 42 U.S.C. § 1983 civil-rights suit.

Mr. Toevs argues that the court erred in granting qualified immunity to

defendants on his claim that they denied him meaningful periodic reviews during

his lengthy confinement in administrative segregation. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm, although on different grounds than the district

court.

The district court concluded that Mr. Toevs failed to demonstrate that

defendants violated his constitutional rights. We disagree. Based on the record

before this court, we conclude that defendants did not provide Mr. Toevs with the

meaningful periodic reviews to which he was constitutionally entitled because the

substantive reasons why Mr. Toevs was either graduated to a higher level of the

Quality of Life Level Program or denied graduation to a higher level were not

shared with Mr. Toevs. Without providing any meaningful guidance to Mr. Toevs

of how he was progressing to exit from administrative confinement or when he

might anticipate being returned to the general prison population, defendants

violated his constitutional rights. Nevertheless, because at the time, it would not

have been apparent to defendants that the review process would not be considered

meaningful, we conclude that defendants are entitled to qualified immunity and

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judgment in their favor.

I. BACKGROUND

Mr. Toevs’s lawsuit concerns the Colorado prison system’s Quality of Life

Level Program (QLLP), which is described in Operational Memorandum (OM)

650-100. The QLLP, which is employed at Colorado State Penitentiary (CSP) and

Centennial Correctional Facility (CCF), is “a stratified quality of life program

based on increased levels of privileges for demonstrated appropriate offender

behavior and program compliance.” OM 650-100 § I, Aplt. App. at 610. The

program consists of six levels. Level 1 has the most restrictive conditions, and

each successive level offers the inmate more privileges.

Levels 1 through 3 are classified as administrative segregation.

Accordingly, they are subject to the provisions of Administrative Regulation (AR)

600-02, which governs placement in administrative segregation. AR 600-02

provides for periodic reviews of segregation status. Levels 4 through 6 are

classified as close custody. AR 600-02 does not cover these levels, and

defendants concede that there is no review process applicable to them. After

completing QLLP Level 6, an inmate is eligible to be transferred to the general

prison population. If an inmate spends the minimum amount of time at each

level, he will be in the QLLP for thirteen months and seven days. There is no

maximum amount of time for placement in the QLLP.

Mr. Toevs was placed in the QLLP on March 4, 2002, after attempting to

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escape. By September 2005, he had reached Level 6, but due to poor behavior he

was regressed to Level 1. He again began to progress through the program,

achieving Level 1 on October 7, 2005; Level 2 on October 13, 2005; Level 3 in

either December 2005 or January 2006; and Level 4 on October 15, 2007. On

January 31, 2009, Mr. Toevs completed Level 6 and graduated from the QLLP.

In March 2009, he rejoined the general prison population.

In the relevant pleading, the Third Amended Complaint, Mr. Toevs

complained that during his placement in the QLLP from 2005 to 2009 he was

deprived of a liberty interest without due process. 1 Specifically, he alleged that

Jean Glidewell (his case manager from September 2005 to February 2006) and

Kristi Moore (his case manager from March to June 2006) denied him his right to

a meaningful periodic review of his confinement in administrative segregation

because the reviews they gave him were perfunctory, meaningless, and all said the

same thing. With regard to Larry Reid (the warden at CSP/CCF from

September 1, 2002, until October 1, 2007) and Susan Jones (Mr. Reid’s successor

as CSP/CCF warden), he complained that their enforcement of OM 650-100

mooted any possible due process that could have been afforded by AR 600-02.

He further alleged that OM 650-100 rendered any reviews meaningless because

1
Although Mr. Toevs initially was placed in the QLLP in March 2002, the
district court held that any claims for periods before August 2004 were barred by
the applicable statute of limitations. Thus, the Third Amended Complaint focused
on events from 2005 to 2009. Mr. Toevs does not appeal this ruling.

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they could not result in his immediate release from the QLLP. And finally, he

complained that OM 650-100 did not provide for reviews when he was in QLLP

Levels 4 through 6 in February to September 2005 and October 2007 to January

2009. All of his claims were asserted against defendants in their individual

capacities. He requested compensatory and punitive damages and declaratory

relief.

The parties consented to have the case heard by a magistrate judge. See

28 U.S.C. § 636(c). In evaluating the parties’ cross-motions for summary

judgment, the district court held defendants were entitled to qualified immunity.

It held that the review process was constitutionally adequate, and thus Mr. Toevs

had failed to establish that Ms. Glidewell and Ms. Moore deprived him of a

constitutional right. It also held that there was no showing of Mr. Reid’s and

Ms. Jones’s personal participation in the alleged constitutional violations; there

was no evidence that they participated in any of the reviews or that they had any

knowledge of his circumstances. Therefore, the court concluded that Mr. Toevs

failed to establish that Mr. Reid and Ms. Jones deprived him of a constitutional

right. The court further determined that the allegations that OM 650-100 mooted

any protections provided by AR 600-02 were conclusory. And, the court

concluded, its decision that the reviews were constitutionally adequate rebutted

Mr. Toevs’s argument that, because they could not have secured his immediate

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release from the QLLP, the reviews were meaningless. 2 Mr. Toevs appeals.

II. ANALYSIS

Mr. Toevs argues that the district court failed to give his filings the liberal

construction due a pro se litigant. He believes the court missed the focal points

of his argument: (1) that his extended placement in the QLLP violated his right

to due process because at Levels 1 through 3 he did not receive any meaningful

reviews, by which he means reviews that could result in his immediate release to

the general population; and (2) at Levels 4 through 6 he did not receive any

reviews at all. In part, he attributes the court’s errors to its denial of his requests

for appointed counsel. Without counsel, he asserts, he was unable to frame his

arguments or conduct discovery effectively.

A. Standard of Review and Qualified Immunity

We review the district court’s grant of summary judgment de novo. See

Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). Because judgment in

this case was based on qualified immunity, however, “the summary judgment

standards are subject to a somewhat different analysis from other summary

judgment rulings.” Id. “The doctrine of qualified immunity shields government

2
The district court concluded that it need not consider defendants’ argument
that Mr. Toevs had failed to exhaust his administrative remedies. It further stated
that, if it were to consider the issue, there may be a genuine issue of material fact
as to whether there was an administrative appeal process available to Mr. Toevs.
Defendants do not argue administrative exhaustion on appeal, so we do not
consider the issue.

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officials performing discretionary functions from liability for damages ‘insofar as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Boles v. Neet, 486 F.3d 1177,

1180 (10th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Thus, to avoid judgment for the defendant based on qualified immunity, “the

plaintiff must show that the defendant’s actions violated a specific statutory or

constitutional right, and that the constitutional or statutory rights the defendant

allegedly violated were clearly established at the time of the conduct at issue.”

Steffey, 461 F.3d at 1221 (quotation omitted); Pearson v. Callahan, 555 U.S. 223,

129 S. Ct. 808, 815-16 (2009). We may address these questions in whatever order

is appropriate under the circumstances. Pearson, 129 S. Ct. at 818. We view the

facts in the light most favorable to the plaintiff, Mr. Toevs. See Kirkland v.

St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006).

B. Due Process Claim

1. Violation of a Constitutional Right

We turn first to the question of whether defendants violated a specific

constitutional right. Mr. Toevs alleges a violation of his right to due process.

a. Existence of a Liberty Interest

The first issue in the due-process context is whether the plaintiff has

established a protected interest (in this case a liberty interest). See Steffey,

461 F.3d at 1221; Kirkland, 464 F.3d at 1189. The Due Process Clause “itself

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does not give rise to a liberty interest in avoiding transfer to more adverse

conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In

the prison context, state regulations can create protected liberty interests, but such

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

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 v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). The

district court “determined that because Mr. Toevs alleged placement in the QLLP

for a lengthy period of time without meaningful periodic reviews, he may state a

claim for atypical and significant restraint deserving due process protections.”

Toevs v. Reid, No. 06-cv-01620-CBS-KMT, 2010 WL 4388191, at *5 (D. Colo.

Oct. 28, 2010). On appeal, defendants do not take issue with the court’s

conclusion that Mr. Toevs’s seven-year placement in the QLLP could be

sufficiently atypical and significant to create a liberty interest. We determine that

Mr. Toevs adequately established a liberty interest.

In Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d

1334, 1342 (10th Cir. 2007), we identified certain relevant, albeit non-dispositive,

factors in this liberty-interest inquiry: “whether (1) the segregation relates to and

furthers a legitimate penological interest, such as safety or rehabilitation; (2) the

conditions of placement are extreme; (3) the placement increases the duration of

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confinement . . .; and (4) the placement is indeterminate.” “[A]ny assessment

must be mindful of the primary management role of prison officials who should

be free from second-guessing or micro-management from the federal courts.” Id.

Factors one and three work against the existence of a liberty interest. The

segregation in this case certainly relates to and furthers a legitimate penological

interest (Mr. Toevs originally was committed to the QLLP because of an escape

attempt, and he was regressed to QLLP Level 1 in September 2005 due to

behavioral problems). Further, given that he is serving a life sentence, the

placement did not increase the duration of his confinement.

As for factor two, it is not entirely clear whether the conditions of

placement were extreme, but at a minimum there is a genuine issue of material

fact regarding the question. Mr. Toevs provided evidence that the conditions at

all levels of the QLLP were similar to the conditions described in Wilkinson,

545 U.S. at 214-16, where the Supreme Court concluded that assignment to

Ohio’s supermax facility was an atypical and significant hardship, see id. at

223-24. Defendants denied the accuracy of Mr. Toevs’s description, but they

provided little specific evidence of his actual conditions of confinement. Instead,

they generally referred to the QLLP’s general provisions for conditions of

confinement, which are set forth in OM 650-100 § IV.A. But this section does

not address several of the conditions alleged by Mr. Toevs, including the amount

of time spent in his solitary cell, the provision of solid metal cell doors with metal

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strips on the sides and bottom to prevent communication, and the requirement that

he eat all his meals in his cell. Further, OM 650-100 § IV.A provides that the

listed conditions “may be adjusted and/or modified based on offender behavior

. . .,” and specific portions of the policy also state that the conditions described

therein may be adjusted. Aplt. App. at 611. Thus, OM 650-100 § IV.A may or

may not be an accurate description of Mr. Toevs’s actual conditions of

confinement.

In these circumstances, we consider the fourth DiMarco factor to be

determinative. Placement in the QLLP is indefinite. Although there is a

minimum time to complete the program, there is no maximum, and there is no

restriction on how many times a prisoner may be regressed to lower levels. When

Mr. Toevs was placed in the QLLP he had no knowledge of any end date, and as

it turned out, he was in the QLLP for nearly seven years. It appears from the

record that the average length of placement in the QLLP program is twenty-nine

months, which is much less than Mr. Toevs’s placement.

We conclude that Mr. Toevs’s indefinite placement that actually lasted for

years, in the type of conditions he alleged, established a protected liberty interest.

See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (“The district court

abused its discretion in concluding that there was no arguable basis that a

three-year period of administrative segregation—during which time Fogle was

confined to his cell for all but five hours each week and denied access to any

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outdoor recreation—is not ‘atypical.’”); see also Shoats v. Horn, 213 F.3d 140,

144 (3d Cir. 2000) (“Based on this record, we have no difficulty concluding that

eight years in administrative custody, with no prospect of immediate release in

the near future, is ‘atypical’ in relation to the ordinary incidents of prison

life[.]”); McClary v. Coughlin, 87 F. Supp. 2d 205, 208 n.2, 209 (W.D.N.Y. 2000)

(finding that four-year placement in administrative segregation, in the same harsh

conditions as punitive segregation, created a liberty interest).

b. Adequacy of Process Afforded Mr. Toevs

1. Mr. Toevs had a right to meaningful periodic
review while he was confined to the QLLP.

Because Mr. Toevs has established a liberty interest, we proceed to the next

issue, which focuses on the process that was afforded to him. See Wilkinson,

545 U.S. at 224; Kirkland, 464 F.3d at 1189. Mr. Toevs does not contest the

adequacy of the process by which he initially was committed to the QLLP or by

which he was regressed to Level 1 in September 2005. Rather, he argues that

while he was in the QLLP from 2005 to 2009, he was denied his right to a

meaningful periodic review of his status.

The periodic-review requirement stems from Hewitt v. Helms, 459 U.S. 460

(1983), abrogated in part on other grounds by Sandin, 515 U.S. at 483. In

Hewitt, the Supreme Court stated, “administrative segregation may not be used as

a pretext for indefinite confinement of an inmate. Prison officials must engage in

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some sort of periodic review of the confinement of such inmates.” Id. at 477 n.9.

The review need not be extensive, as the Court continued:

This review will not necessarily require that prison officials permit
the submission of any additional evidence or statements. The
decision whether a prisoner remains a security risk will be based on
facts relating to a particular prisoner—which will have been
ascertained when determining to confine the inmate to administrative
segregation—and on the officials’ general knowledge of prison
conditions and tensions, which are singularly unsuited for “proof” in
any highly structured manner.

Id. But the review must be meaningful; it cannot be a sham or a pretext. See id.;

Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986); McClary,

87 F. Supp. 2d at 214.

Mr. Toevs contends that a meaningful review must be one that can result in

his immediate release from the QLLP to the general population. In light of the

circumstances presented here, we disagree. The cases Mr. Toevs consults to form

his definition of a meaningful review did not involve prisoners who were in

stratified incentive programs such as the QLLP. See Mackey v. Dyke, 29 F.3d

1086 (6th Cir. 1994); Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975). In those

cases, there were only two choices; either the prisoner was in administrative

segregation or he was in the general population. Naturally, then, when the only

alternative to segregation was the general population, the courts referred to a

review that was capable of releasing the inmate into the general population. But

here there were six levels within the QLLP, and Mr. Toevs had no right to rejoin

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the general population before he completed all six levels. Therefore, he did not

have a right to an interim review capable of prematurely terminating his

participation in the QLLP at any time before the completion of the sixth level.

“Unlike punitive segregation, including punitive isolation which is imposed

by way of punishment for past misconduct, administrative segregation is not

punitive and it looks to the present and the future rather than to the past.” Kelly,

525 F.2d at 399. Thus, a “meaningful” review is one that evaluates the prisoner’s

current circumstances and future prospects, and, considering the reason(s) for his

confinement to segregation, determines, without preconception, whether that

placement remains warranted. As one scholar has put it, “Hewitt’s requirement of

a meaningful periodic review presumes that the reviewing entity considers

whether the prisoner’s conduct during the period since the most recent security

review warrants reclassification. Consideration of behavior is an integral

component of a fair and meaningful hearing.” Jules Lobel, Prolonged Solitary

Confinement and the Constitution, 11 U. Pa. J. of Const. L. 115, 126-27 (2008).

In the context of a stratified incentive program such as the QLLP, the review

would consider whether the prisoner is eligible to move to the next level or, if the

prisoner already is at the highest level, if he or she is eligible to graduate from the

program.

Further, “what would be required for an intelligent and meaningful review

of the case of one inmate might not be required in the case of another.” Kelly,

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525 F.2d at 400. Where, as here, the goal of the placement is behavior

modification, the review should provide a guide for future behavior (i.e., it should

give the prisoner some idea of the requirements for, and his progress toward,

more favorable placement). See Wilkinson, 545 U.S. at 226 (noting that Ohio’s

requirement of a statement of reasons “serves as a guide for future behavior”);

Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 15 (1979)

(noting that prisoners denied parole were told the reason “as a guide to the inmate

for his future behavior”). “The statement of reasons must explain what the

prisoner must do to work [his] way out of solitary confinement. Otherwise, the

statement would not serve the function of providing the prisoner with a ‘guide for

future behavior.’” Lobel, 11 U. Pa. J. of Const. L. at 127.

In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court

instructed the lower courts to examine “the probable value, if any, of additional or

substitute procedural safeguards” and “the fiscal and administrative burdens [on

the government] that the additional or substitute procedural requirement would

entail.” The value of requiring an explicit advisement of progress through the

QLLP program is high, in that it promotes the ultimate goal of a

behavior-modification program. Moreover, the administrative burden on the

government should be relatively low, as the QLLP already requires officials to

track prisoners’ progress and evaluate their prospects for promotion to the next

level.

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 A meaningful review, however, does not require giving the inmate an

opportunity to submit additional testimony or evidence. See Hewitt, 459 U.S. at

477 n.9. And if the relevant circumstances truly have not changed, the fact that

the review form says nothing different will not preclude a review from being

considered meaningful. See Edmonson v. Coughlin, 21 F. Supp. 2d 242, 253

(W.D.N.Y. 1998).

2. Mr. Toevs did not receive meaningful periodic
reviews between 2005 and 2009.

A. Levels 1 through 3

Having determined the requirements for a meaningful periodic review, we

must determine whether the reviews given to Mr. Toevs at Levels 1, 2, and 3

starting in 2005 meet this standard. It is a close question. As Mr. Toevs

complains, the review forms largely contain the same information, with

occasional updates. But defendants contend that the review forms reflect only

part of the review process.

Ms. Moore and Ms. Glidewell submitted affidavits stating that “[a]n

inmate’s periodic review is recorded on a form prescribed by AR 600-02. The

contents of this form do not reflect all factors considered in the inmate’s review,

but only document significant benchmarks in the inmate’s progress through the

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QLLP.” Aplt. App. 607; 649. 3

Inmates’ periodic reviews are initiated by case managers, and consist
of a review of information obtained from the case manager’s contacts
with the inmate during the review period, a review of Chronlog
reports, chrons entered by housing staff, and incident reports, if any.
The reviews also consider whether the reasons for the inmate’s initial
placement in administrative segregation still exist. If the case
manager determines from a review that the inmate has met all
expectations, he or she recommends a progression to the next level in
the QLLP. If not, he or she recommends no change.

Id. at 608; see also id. at 650.

This evidence indicates that the reviews focused on appropriate factors, and

we likely would consider the process meaningful, but for one serious

omission—the reviews never informed Mr. Toevs of the reasons why he was

recommended for or denied progression, so that he would have a guide for his

future behavior. For example, he spent twenty-one months at Level 3 (eighteen

more than the minimum) before being promoted to Level 4. The QLLP specifies

certain prerequisites for promotion to Level 4. During this time, however, his

review forms never stated why he was being held at Level 3 or what he had to do

to move to Level 4. While certain classes were recommended, there was no

indication that they had to be completed before progression (and in fact,

Mr. Toevs was progressed from Level 2 to Level 3 before he completed classes

that were then being recommended). Accordingly, the reviews at Levels 1

3
Defendants initially submitted an unsigned affidavit for Ms. Glidewell, but
later submitted a signed version.

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through 3 were not meaningful.

B. Levels 4 through 6

Levels 4, 5, and 6 present an easier question, given defendants’ concession

that no reviews were conducted at these levels. 4 They contend that reviews are

not necessary because these levels are classified as “close custody” rather than

“administrative segregation.” But the evidence of record, including Mr. Toevs’s

verified statement and defendants’ interrogatory answers, indicates that the basic

conditions of confinement remain the same for all QLLP levels. Thus, we see no

reason why Levels 4 through 6 would be exempt from Hewitt’s prescription of

periodic review. And without any reviews, it is impossible for prisoners to track

their progress through the QLLP. From this record, for example, it is impossible

to determine when Mr. Toevs moved from Level 4 to Level 5 and from Level 5 to

Level 6, why he was held at those levels for however long he was held there, and

4
It appears that Ms. Moore and Ms. Glidewell were no longer Mr. Toevs’s
case managers by the time he was promoted to Level 4. Thus, any claim
regarding the lack of review at Levels 4 through 6 implicates only Mr. Reid and
Ms. Jones.

In a related argument, Mr. Reid and Ms. Jones argue that there is no
evidence of any personal involvement by them in any deprivation of Mr. Toevs’s
rights. The evidence belies this argument. Mr. Toevs challenges the QLLP,
which is established by OM 650-100. Mr. Reid signed the copy of OM 650-100
in the appellate record, indicating that he adopted it. He also was made aware of
Mr. Toevs’s circumstances by a letter in the summer of 2006. Ms. Jones, as
Mr. Reid’s successor, apparently had the power to amend OM 650-100 had she
chosen. In addition, Ms. Jones signed at least one of Mr. Toevs’s review forms.

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how it was determined that he was eligible to graduate from the QLLP.

Essentially, then, at Levels 4 through 6 prisoners are being held indefinitely,

without review, in the same basic conditions as Levels 1 through 3, and

defendants’ only justification is that the custody level has a different name. In

these circumstances, we have no hesitation in concluding that the failure to give

Mr. Toevs any reviews at Levels 4, 5, and 6 violated his right to due process.

2. The law was not clearly established.

Even though Mr. Toevs did not receive meaningful periodic reviews, we

conclude that defendants are entitled to judgment based on qualified immunity

because it was not clearly established in 2005 through 2009 that the review

process was inadequate. “Despite their participation in . . . constitutionally

impermissible conduct, respondents may nevertheless be shielded from liability

for civil damages if their actions did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow, 457 U.S. at 818).

“Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Walker v .City of Orem, 451 F.3d 1139, 1151 (10th Cir.

2006) (quotation omitted). It is not necessary, however, to find cases that are

“fundamentally similar” or even “materially similar,” because “officials can still

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be on notice that their conduct violates established law even in novel factual

circumstances.” Hope, 536 U.S. at 741. The “salient question . . . is whether the

state of the law [at the time of the actions] gave respondents fair warning that

their [conduct] was unconstitutional.” Id.

Since Hewitt, it has been clearly established that prisoners cannot be placed

indefinitely in administrative segregation without receiving meaningful periodic

reviews. 459 U.S. at 477 n.9. This court, however, has not previously interpreted

“meaningful” to require officials to inform prisoners of the reasons for their

continued placement, so as to provide a guide for future behavior. Moreover, this

court has never considered the due-process implications of a stratified incentive

program such as the QLLP. Accordingly, we cannot conclude that the state of the

law from 2005 to 2009 gave defendants fair warning that the QLLP review

process was not meaningful, or that the lack of reviews at QLLP Levels 4 through

6 was a due-process violation. And because the law was not clearly established,

defendants are entitled to judgment based on qualified immunity.

C. Appointment of Counsel

“We review a district court’s refusal to appoint counsel for an indigent

prisoner in a civil case for an abuse of discretion.” Hill v. SmithKline Beecham

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). “Only in those extreme cases where

the lack of counsel results in fundamental unfairness will the district court’s

decision be overturned.” Id. (quotation omitted). The factors to be considered

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include “the merits of a prisoner’s claims, the nature and complexity of the

factual and legal issues, and the prisoner’s ability to investigate the facts and

present his claims.” Id.; see also Rucks v. Boergermann, 57 F.3d 978, 979

(10th Cir. 1995).

Mr. Toevs argues that he lost his case because he was not able to frame his

arguments effectively and encountered problems in discovery that counsel would

have been able to surmount. “While we do not quarrel with [his] assertion that

having counsel appointed would have assisted him in presenting his strongest

possible case,” Rucks, 57 F.3d at 979, we do not conclude that the denial of

counsel was an abuse of discretion. As the district court found, Mr. Toevs

capably litigated his case. In fact, we compliment him on filing appellate briefs

that clearly articulate his arguments and ably discuss the applicable precedents. 5

Our affirmance is not due to a poor presentation or an inadequate record, but

because the law was not clearly established at the time of the events at issue.

III. CONCLUSION

Because the standards for meaningful periodic reviews during extended

placement in a stratified incentive program involving confinement to

administrative segregation were not previously clearly established in this circuit,

defendants are entitled to qualified immunity, and the judgment of the district

court is AFFIRMED.

5
Also, in a prior related appeal, Mr. Toevs was successful in challenging the
district court’s dismissal of his complaint. See Toevs v. Reid, 267 F. App’x 817
(10th Cir. 2008).

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