FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MELVIN L. SHIELDS, 47149,
Plaintiff - Appellant,
v. No. 20-3127
(D.C. No. 5:20-CV-03077-SAC)
SAM CLINE, Warden, El Dorado (D. Kan.)
Correctional Facility, in his individual
capacity; EL DORADO
CORRECTIONAL FACILITY,
Segregation Review Board; T. O'BRIEN,
EAI, El Dorado Correctional Facility, in
his individual capacity; ALLISON
AUSTIN, UTS, El Dorado Correctional
Facility, in her individual capacity; (FNU)
KELLY, Sergeant, El Dorado Correctional
Facility, in his individual capacity; DAN
SCHNURR, Warden, Hutchinson
Correctional Facility, in his individual
capacity; HUTCHINSON
CORRECTIONAL FACILITY,
Segregation Review Board; (FNU)
VANHOOSE, Major, Hutchinson
Correctional Facility, in his individual
capacity; JORDAN BELL, Unit Team
Manager, Hutchinson Correctional Facility,
in his individual capacity; B.H.
STANSBURY, Segregation Review Board
Member, Hutchinson Correctional Facility,
in his individual capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Melvin Shields appeals the district court’s dismissal of his 42 U.S.C. § 1983
claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
This appeal arises from Shields’ incarceration at the El Dorado Correctional
Facility in Kansas. Shields alleges that defendant Sergeant Kelly wrote a false
disciplinary report, with knowledge that the report was false, that caused Shields to be
placed on pre-hearing detention. Two days later, he was placed on long-term segregation
(“OSR” status) without a disciplinary hearing. Shields claims that his placement on OSR
status was justified by his 2019 first-degree murder conviction for a cold case that
occurred in 1988 and two prison disciplinary charges assessed fifteen and nineteen years
prior to his complaint. He further alleges that he remained in administrative segregation
for five months without meaningful segregation review hearings even though the false
disciplinary report was later dismissed. Finally, he claims he was retaliated against for
objecting to his segregation by being moved to the more restrictive A3 cellhouse.
*
This order and judgment is not binding precedent except under the doctrines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.
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In his original complaint, Shields asserted claims under § 1983, alleging that
(1) defendant Kelly wrote a false disciplinary report that caused him to be placed in
pre-hearing detention, (2) his administrative segregation violated his due process rights,
(3) defendants retaliated against him for exercising his First Amendment rights, (4) his
prison disciplinary sanctions violated double jeopardy, (5) defendants acted with
deliberate indifference to his medical conditions, and (6) defendants violated an
independent constitutional right to have his grievance investigated. The district court
dismissed Shields’ claims and denied Shields leave to proceed in forma pauperis (“IFP”)
on appeal because he did not present a nonfrivolous argument for relief and his appeal
was not taken in good faith. Shields appeals the district court’s denial of (1) his due
process claim, (2) his claim pertaining to Kelly’s false disciplinary report, and (3) his
First Amendment retaliation claim.
II
Before considering the merits of Shields’ appeal, we must determine whether he
may proceed under 28 U.S.C. § 1915(g). Pursuant to the Prison Litigation Reform Act of
1995, prisoners are usually required to pay the full amount of the filing fees at the outset
of their appeal. Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011). Indigent
prisoners, however, “need not pay federal court filing fees in full prior to initiating an
appeal” so long as they have not accumulated three strikes for actions or appeals that are
dismissed for being frivolous, malicious, or failing to state a claim. Id. (internal
quotations and citations omitted).
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Shields accumulated two strikes prior to these proceedings. Shields v. Koerner, et
al., No. 5:00-cv-03328-GTV (D. Kan. Nov 14, 2000); Shields v. Hopkins, et al., No.
5:00-cv-03296-GTV (D. Kan. Nov. 15, 2000). Additionally, the district court held that
Shields “failed to present the court with a plausible federal claim for relief which would
justify the court retaining jurisdiction over this matter,” thereby granting a third strike.
However, because Shields accrued his third strike as the result of the dismissal of the case
underlying this appeal, we can consider whether the district court erred in concluding that
Shields failed to allege a plausible federal claim for relief. Hafed v. Fed. Bureau of
Prisons, 635 F.3d 1172, 1177 (10th Cir. 2011) abrogated in part by Coleman v. Tollefson,
575 U.S. 532 (2015).1 Because Shields had not accrued three strikes prior to these
proceedings and because he meets the indigency requirements, we GRANT leave to
proceed IFP.
III
We liberally construe a pro se appellant’s briefs. Davis v. Clifford, 825 F.3d
1131, 1134 n.1 (10th Cir. 2016). However, we do not act as the pro se litigant’s
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We “will not supply
additional facts, nor will we construct a legal theory for plaintiff that assumes facts that
1
Coleman abrogated the holding in Hafed that a strike never counts “against a
litigant until he has exhausted or waived his appeals.” Hafed, 635 F.3d at 1176; see
also Carr v. Zwally, 760 F. App’x 550, 558 (10th Cir. 2019) (recognizing abrogation
in part). However, Coleman explicitly declined to consider “an attempt to appeal
from the trial court's dismissal of [a] third complaint.” Coleman, 135 S. Ct. at 1765.
Accordingly, Hafed remains binding 10th Circuit precedent on this issue.
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have not been pleaded.” Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998)
(quotation omitted).
A
Shields alleges that his due process rights were violated when he was placed in
long-term segregation for five months without a disciplinary hearing and without
meaningful monthly segregation review hearings.
Prison conditions that “‘impose atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life’ may create a liberty interest protected by
the Due Process Clause.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006)
(alteration adopted) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). To determine
whether there is a protected liberty interest, courts generally consider factors such as
“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 confinement . . . ; and (4) the placement is indeterminate.”
Estate of DiMarco v. Wyo. Dep’t of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007).
Based on Shields’ allegations, the administrative segregation did not further a
legitimate penological interest. Shields alleges that he was placed in administrative
segregation for five months because of his conviction for a cold case murder that
occurred thirty years earlier, two incidences of prior prison misconduct from fifteen and
nineteen years ago, and a disciplinary report that was subsequently dismissed. Without
additional justification, we cannot conclude that decades-old conduct constitutes a safety
concern sufficient to warrant present-day segregation. This is especially true considering
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Shields alleges that he lived in the general population without incident for years after his
past misconduct.
However, the other three factors weigh against Shields. Shields failed to allege
sufficient facts that his segregation “impose[d] atypical and significant hardship on [him]
in relation to the ordinary incidents of prison life.” Wilkinson v. Austin, 545 U.S. 209,
222–23 (2005) (emphasis added) (quotation omitted). Shields only alleges that
administrative segregation is more restrictive and that he is not allowed contact visitation,
three hot meals a day, or access to all of the resources in the law library. Although
administrative segregation imposes an inherent hardship, see Davis v. Ayala, 576 U.S.
257, 287 (2015) (Kennedy, J., concurring), the fact of isolating confinement is not in and
of itself enough to create a liberty interest. See Sandin, 515 U.S. at 486. Shields’ other
allegations are not atypical to the ordinary incidents of prison life. Id. at 484.
Additionally, Shields does not allege that his placement increased the duration of his
confinement or that it was indeterminate. He was segregated for five months, and he
received monthly review board hearings. Though he alleges that these hearings were a
“sham,” he does allege any facts to support this claim. For these reasons, we conclude
that Shields failed to allege a deprivation of a constitutionally protected liberty interest.
B
Shields claims that Kelly wrote a false disciplinary report that caused him to be
placed on pre-hearing detention and long-term segregation. This conclusory assertion is
insufficient to provide fair notice of a claim. See Escobar v. Mora, 496 F. App’x 806,
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816 (10th Cir. 2012)2 (“[M]ere allegations of falsified evidence or misconduct reports,
without more, do not state a claim.” (internal citation and quotations omitted)).
Accordingly, this claim was properly dismissed.
C
Shields alleges that he was retaliated against for objecting to his segregation by
being moved to the A3 cellhouse. He notes that he was moved the day after he wrote a
request asserting that he can challenge the manner in which his segregation decision was
made.
Prison officials “may not retaliate against or harass an inmate because of the
inmate’s exercise of his constitutional rights.” Peterson, 149 F.3d at 1144. To claim
retaliation, an inmate “must allege specific facts showing retaliation because of the
exercise of the prisoner’s constitutional rights.” Id. (emphasis in original). The
retaliation claim must allege that the retaliatory action was sufficient to chill an ordinary
person from exercising his or her constitutional rights. See Moceck v. City of
Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015).
Inmates have a First Amendment right to petition the government for redress of
grievances, including inmate administrative appeals. See Fogle, 435 F.3d at 1264. If
Shields was retaliated against for filing administrative grievances, the defendants may be
liable for violating his constitutional rights. Id. However, Shields does not demonstrate
that he suffered from a retaliatory action sufficient to chill an ordinary person from
2
This unpublished opinion is cited for its persuasive value only. See 10th Cir.
R. 32.1(A).
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exercising his constitutional rights. He states that he was moved from his current cell to a
“more restrictive” cellhouse but does not provide any further detail about the additional
restrictions. This allegation, without more, is not enough to allege sufficient harm to
state a First Amendment retaliation claim. Accordingly, the district court properly
dismissed this claim.
IV
For the forgoing reasons, we AFFIRM. Shields’ motion to proceed IFP is
GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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