Fogle v. Pierson

F I L E D
United States Court of Appeals
Tenth Circuit

January 27, 2006
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD JENNINGS FOGLE,

Plaintiff - Appellant,
v.

CAPTAIN PIERSON, C.D.O.C.,
Committee Member and Chairperson
at (D.R.D.C.); WILLIAM BOKROS,
C.D.O.C., Administrative
Head/Director at (D.R.D.C.);
GEORGE MESKIMEN, Lt., C.D.O.C.,
Initiating Employee at (D.R.D.C.);
FOSNOT, C.D.O.C., Case Manager,
Committee Member of (D.R.D.C.); S.
EGAN, C.D.O.C., Case Manager,
Committee Member at (D.R.D.C.); LT.
No. 05-1405
NORTON, C.D.O.C., Programmer at
(D.R.O.C.); UNKNOWN
DEFENDANT #1, C.D.O.C.
Correctional Officer at (D.R.D.C.);
UNKNOWN DEFENDANT #2,
C.D.O.C. Correctional Officer at
(D.R.D.C.); UNKNOWN
DEFENDANT #3, C.D.O.C.
Correctional Officer at (D.R.D.C.);
JOHN R. CLARKSON, C.D.O.C.,
Committee Member at (S.C.F.); C.
WIERZHICKI, C.D.O.C., Committee
Member at (S.C.F.); McMONAGLE,
C.D.O.C., Case Manager, Committee
Member at (S.C.F.); PAUL
WILLIAMS, C.D.O.C., Committee
 Member at (S.C.F.); T. CHASE,
C.D.O.C., Administrative Head at
(S.C.F.); NICHELS, C.D.O.C., Case
Manager, Committee Member at
(S.C.F.); M. EMILY, C.D.O.C.,
Administrative Head at (S.C.F.);
CATHY SLACK, C.D.O.C.,
Administrative Head at (C.S.P.); V.
RIDDLE, C.D.O.C., Committee
Chairperson at (C.S.P.); J. HUNTER,
C.D.O.C., Case Manager, Committee
Member at (C.S.P.); J. CARROLL,
C.D.O.C., Committee Chairperson at
(C.S.P.); D. COMB, C.D.O.C., Case
Manager, Committee Member at
(C.S.P.); JOE ORTIZ, C.D.O.C.,
Executive Director,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-CV-1211)

Submitted on the briefs: *

Ronald Jennings Fogle, filed a brief pro se.

Before EBEL, McKAY and HENRY, Circuit Judges.

After examining appellant’s brief and the appellate record, this panel has
*

determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.

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EBEL, Circuit Judge.

Plaintiff-Appellant Ronald Fogle, a prisoner appearing pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint alleging various civil

rights violations committed by the Colorado Department of Corrections (“DOC”).

He also argues that the district court failed to consider a number of claims that he

raised in his pleadings. As Fogle was granted in forma pauperis (“IFP”) status at

the district court, any claim that is frivolous must be dismissed. Having reviewed

his myriad claims, we conclude that not all are frivolous. We therefore AFFIRM

in part, REVERSE in part, and REMAND for further proceedings.

BACKGROUND

Fogle is incarcerated at the Limon Correctional Facility in Limon,

Colorado. Prior to this incarceration, while a pretrial detainee at the Denver

County Jail, he posed as a visitor and escaped by simply walking out of the

facility. He was quickly apprehended, but the escape led to embarrassing media

coverage of DOC officials. Fogle was returned to the Denver County Jail, where

he served time in punitive segregation as punishment for the escape.

Shortly after finishing this punishment, Fogle was sentenced on the original

felonies for which he was being held in the Denver County Jail when he walked

out. He was transferred to a new prison facility, where he claims he was

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immediately placed in administrative segregation, allegedly for the embarrassment

that his escape caused DOC officials. Fogle remained in administrative

segregation at three different state prisons from September 2000 until August

2003. During this time, he claims that he was kept in his cell 23 hours a day for 5

days each week and 24 hours a day the other 2 days each week, and was denied

access to the telephone, the showers, outdoor exercise, the law library, and

programs offered to general population inmates.

In June 2005, Fogle filed a § 1983 complaint with the district court,

alleging various violations of his constitutional rights stemming from these

conditions of his confinement. The district court granted Fogle leave to proceed

IFP, although Fogle subsequently paid his full filing fee during the course of the

proceedings below.

On August 12, 2005, the district court dismissed Fogle’s complaint.

Properly construing Fogle’s pro se complaint liberally, see Lamb v. Rizzo, 391

F.3d 1133, 1135 n.1 (10th Cir. 2004), the district court found that he had raised

six cognizable claims: (1) retaliation for the earlier jailhouse escape; (2) double

jeopardy based on being punished twice for the escape; (3) violation of due

process because the panels making his administrative segregation determinations

were biased; (4) cruel and unusual punishment, primarily from his denial of

outdoor exercise; (5) violation of due process because he was denied the

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opportunity to earn “good time credits” while in administrative segregation; and

(6) violation of equal protection because he was treated differently than other

inmates. The district court considered and rejected each claim as legally frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Fogle appealed.

DISCUSSION

Fogle’s appeal raises a host of issues. As a threshold matter, Fogle claims

that the district court improperly treated him as IFP—and, consequently,

improperly considered his complaint under § 1915—because, after being granted

IFP status, he paid his filing fee in full. We reject this claim because, once a

party is granted IFP status, dismissal under § 1915 is proper notwithstanding any

filing fee paid. We next consider the district court’s suggestion that Fogle’s

claims might be barred by the relevant statute of limitations. We conclude that

dismissal of his claims as time-barred is not appropriate at this stage in the

proceedings. We then turn to the merits of those claims ruled on by the district

court and conclude that it was error for the court to dismiss all of the claims as

frivolous. Finally, we consider those claims not ruled on by the district court and

make a threshold determination of which are frivolous and which deserve

consideration on remand.

A. Dismissal of claims because of IFP status

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 28 U.S.C. § 1915(e)(2)(B)(i) requires a district court to dismiss the

complaint of a party proceeding IFP whenever the court determines that the

claims are frivolous. Fogle claims that, because he paid his filing fee in full after

being granted IFP status, the district court erred in dismissing under § 1915.

However, § 1915 clearly provides that “[n]otwithstanding any filing fee . . . that

may have been paid, the court shall dismiss the case at any time if the court

determines that . . . the action or appeal . . . is frivolous.” 28 U.S.C. §

1915(e)(2)(B)(i) (emphasis added). Thus dismissal of Fogle’s frivolous claims

was proper. 1

B. Statute of limitations

Although not ruling on it, the district court suggested that any of Fogle’s

claims that arose before the final two months of his administrative segregation

were barred by the statute of limitations. A complaint may be dismissed sua

sponte under § 1915 based on an affirmative defense—such as statute of

limitations—“only when the defense is obvious from the face of the complaint

and no further factual record is required to be developed.” Fratus v. DeLand, 49

F.3d 673, 674-75 (10th Cir. 1995) (alterations, quotations omitted). In other

1
See Rowsey v. Swinson, No. 97-1382, 1998 WL 482800, *1 (10th Cir.
Aug. 12, 1998) (unpublished); Moore v. Neal, No. 97-1420, 1998 WL 339713, *1
(10th Cir. June 24, 1998) (unpublished); Ricks v. Mackey, No. 97-3181, 1998 WL
133828, *2 (10th Cir. March 25, 1998) (unpublished).

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words, a complaint may not be dismissed “by raising sua sponte a statute of

limitations defense that was neither patently clear from the face of the complaint

nor rooted in adequately developed facts.” Id. at 675.

“Limitations periods in § 1983 suits are to be determined by reference to

the appropriate state statute of limitations and the coordinate tolling rules . . . .”

Hardin v. Straub, 490 U.S. 536, 539 (1989) (quotations omitted). We have made

clear that the statute of limitations for § 1983 actions brought in Colorado is two

years from the time the cause of action accrued. See, e.g., Blake v. Dickason, 997

F.2d 749, 750-51 (10th Cir. 1993). A § 1983 action “accrues when facts that

would support a cause of action are or should be apparent.” Fratus, 49 F.3d at

675 (quotations omitted). Fogle asserts that he was in administrative segregation

from September 2000 until August 2003; he filed this action in June 2005. Many

of his claims are based on facts that occurred at or near the beginning of his

confinement; if no tolling provision applies, then it appears those claims are time

barred.

Fogle’s limitations period was not tolled by Colorado statute because Fogle

was not “a minor under eighteen years of age, a mental incompetent, or a person

under other legal disability.” See Colo. Rev. Stat. § 13-81-101(3). 2 However,

2
No Colorado court has held that an imprisoned person fell into the “other
legal disability” category.

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Colorado also recognizes the doctrine of equitable tolling, which applies “when

flexibility is required to accomplish the goals of justice,” such as “when plaintiffs

did not timely file their claims because of ‘extraordinary circumstances’ or

because defendants’ wrongful conduct prevented them from doing so.” Morrison

v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (quotations omitted). Fogle asserted in

his complaint that the defendants kept him locked in his cell 23 hours a day for 5

days each week and 24 hours the other two days with no access to, inter alia, law

library clerks or prison lawyers. It is not “patently clear” that these are not the

sort of extraordinary circumstances that would permit equitable tolling, and thus §

1915 dismissal of the complaint on the ground that it is barred by the statute of

limitations is not appropriate.

C. Claims ruled on by the district court

We generally review a district court’s dismissal for frivolousness under §

1915 for abuse of discretion. See Fratus, 49 F.3d at 674. However, where the

frivolousness determination turns on an issue of law, we review the determination

de novo. See Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). “A

district court may deem an in forma pauperis complaint frivolous only ‘if it lacks

an arguable basis either in law or in fact.’” Fratus, 49 F.3d at 674 (quoting

Neitzke v. Williams, 490 U.S. 319, 325 (1989)). In other words, dismissal is only

appropriate “for a claim based on an indisputably meritless legal theory” and the

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frivolousness determination “cannot serve as a factfinding process for the

resolution of disputed facts.” Id. at 674, 675 (quotations, citations omitted).

On appeal, Fogle challenges the district court’s dismissal of all but his

retaliation claim. We consider these claims in turn.

1. Due process violation stemming from administrative segregation
hearings

Fogle claims that the hearing committees that initially determined and

periodically reviewed his administrative segregation placement were biased, in

violation of his due process rights. The district court rejected Fogle’s argument,

reasoning that he did not have a constitutionally protected liberty interest in not

being placed in administrative segregation such that due process concerns were

triggered. We disagree.

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. Sandin v. Conner, 515 U.S. 472,

484 (1995). 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

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denied access to any outdoor recreation—is not “atypical.” Cf. Gaines v.

Stenseng, 292 F.3d 1222, 1225-26 (10th Cir. 2002) (reviewing dismissal of §

1983 claim under § 1915 de novo and ruling that, without “carefully examin[ing]

the conditions of the prisoner’s confinement,” it was error to find 75-day

disciplinary segregation not atypical). 3

2. Cruel and unusual punishment

Fogle contends that he suffered unconstitutionally cruel and unusual

punishment by being denied all outdoor exercise for the three years he was in

administrative segregation. To succeed on an Eighth Amendment claim, a

plaintiff must allege facts demonstrating that “the deprivation is sufficiently

serious” and that prison officials acted with “deliberate indifference to inmate

health or safety.” Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 809 (10th Cir.

1999). The district court found Fogle’s claim frivolous because (1) he had not

alleged that he was deprived of all opportunity for exercise and (2) he had not

3
Fogle also claims that he was denied the “minimum requirements of
procedural due process” afforded prisoners who are being deprived of a liberty
interest—procedures like written notice of the disciplinary hearing, at least 24
hours to prepare for the hearing, and the ability to call witnesses on his behalf.
See Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). The district court did not
address this claim, presumably because it concluded that Fogle was not being
deprived of any liberty interest.
Fogle’s complaint suggests that he was placed in administrative segregation
with no hearing whatsoever. Assuming Fogle succeeds in demonstrating the
deprivation of a liberty interest, such arbitrary action would certainly seem to
violate the principles outlined in Wolff.

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alleged that DOC officials acted with deliberate indifference. Again, we disagree.

First, the district court erred as a matter of law in concluding that a

prisoner must allege denial of all exercise, not just outdoor exercise, to present an

“arguable” claim. 4 As we have explained,

There is substantial agreement among the cases in this area that some
form of regular outdoor exercise is extremely important to the
psychological and physical well being of inmates, and some courts have
held a denial of fresh air and exercise to be cruel and unusual
punishment under certain circumstances.

Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (per curiam) (emphasis

added); see also Perkins, 165 F.3d at 810 (“[W]e conclude the district court here

erred when it held that plaintiff’s allegations about the extended deprivation of

outdoor exercise showed no excessive risk to his well-being.”) (quotations,

alterations omitted) (emphasis added).

Additionally, the district court erred in finding that Fogle had not alleged

that the DOC officials were deliberately indifferent.

For a prison official to be found liable of deliberate indifference under
the Eighth Amendment, the official must know of and disregard an
excessive risk to inmate health or safety . . . . Whether a prison official
had the requisite knowledge of a substantial risk is a question of fact
. . . and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.

Perkins, 165 F.3d at 809-10 (quotations, alterations omitted) (emphasis added).

4
Fogle acknowledges that he is allowed access to a cell with a pull-up bar a
few times each week.

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Here, we think it is clear that a factfinder might conclude that the risk of harm

from three years of deprivation of any form of outdoor exercise was obvious and

that DOC officials disregarded that risk by keeping Fogle in administrative

segregation.

3. Equal protection

Fogle alleges that he has been denied equal protection because he has been

treated differently than other inmates while he was in administrative segregation.

“Equal protection is essentially a direction that all persons similarly situated

should be treated alike.” Grace United Methodist Church v. City of Cheyenne,

427 F.3d 775, 792 (10th Cir. 2005) (quotations omitted). Liberally construing

Fogle’s pleadings, he seems to be raising three variations of his equal protection

argument: first, that, during his time in administrative segregation, he was treated

differently than inmates in the general prison population; second, that he was

treated differently than others who committed “walk-away” escapes and were not

placed in administrative detention; and third, that he was treated differently than

other similarly situated inmates in administrative segregation.

In order to succeed on his first equal protection claim, Fogle would have to

show that he was “similarly situated” to those general population inmates, see

Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998), and that the difference

in treatment was not “reasonably related to legitimate penological interests,”

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Turner v. Safley, 482 U.S. 78, 89 (1987). The district court correctly noted that

Fogle was, by definition, not similarly situated to general population inmates

during his time in administrative segregation.

Fogle’s second claim is expressly foreclosed by this court’s decision in

Templeman v. Gunter, 16 F.3d 367 (10th Cir. 1994). There, as here, a Colorado

state prisoner who had been in administrative segregation brought a § 1983 action

alleging that his placement in administrative segregation violated equal

protection; that claim was dismissed by the district court as frivolous. Id. at 368.

We affirmed the dismissal, holding that the prisoner’s claim could not succeed

because the placement in administrative segregation is in the discretion of the

DOC, meaning they can consider “whatever . . . seems relevant in making the

qualitative judgment how to classify an individual inmate” and that

it is “clearly baseless” to claim that there are other inmates who are
similar in every relevant respect. Not only might the DOC classify
inmates differently because of slight differences in their histories, but
they also might classify inmates differently because some still seem to
present more risk of future misconduct than others. [A prisoner’s]
claim that there are no relevant differences between him and other
inmates that reasonably might account for their different treatment is
not plausible or arguable.

Id. at 371 (citation omitted).

Similarly, Fogle’s third claim fails in light of our reasoning in Templeman.

Fogle alleges that no other state inmate was placed in administrative segregation

for three years unless that inmate had violated the Code of Penal Discipline, and

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also that no other inmate who was placed in administrative segregation based only

on a so-called “600-02 removal from population” designation—as he claims he

was—served such a lengthy stint. 5 We assume that the prison has the same

discretion in determining the length of segregation as they do in determining the

initial placement in segregation. Given this, it is not plausible that “there are no

relevant differences between [Fogle] and other inmates that reasonably might

account for their different treatment.” Templeman, 16 F.3d at 371. As a result,

Fogle cannot establish that he was treated differently than “similarly situated”

inmates.

4. Double jeopardy

Fogle argues that he was “punished” twice for his escape—once at the

Denver County Jail and again by being placed in administrative segregation by the

DOC—in violation of his right against double jeopardy. The district court ruled

that this claim lacked merit, and we agree. Because the Double Jeopardy clause

only applies to proceedings that are “essentially criminal” in nature, see Breed v.

Jones, 421 U.S. 519, 528 (1975), “it is well established that prison disciplinary

sanctions”—such as administrative segregation—“do not implicate” double

jeopardy protections. Wirsching v. Colorado, 360 F.3d 1191, 1205 (10th Cir.

5
Though it is not completely clear from Fogle’s pleadings, it appears that
placement in administrative segregation because of a 600-02 designation is less
serious than placement there for violating the Code of Penal Discipline.

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2004).

5. Due process violation stemming from inability to earn time credits

Fogle contends that his due process rights were violated when he was

denied the opportunity to earn “earned time” credits while in administrative

segregation. This claim was properly dismissed as frivolous, as Fogle has no

constitutionally-protected liberty interest in earning the credits. As this court

explained in Templeman, denying a prisoner mandatory earned time credits—i.e.,

those to which he has some entitlement—would deprive him of a liberty interest if

those credits advance his mandatory date of release on parole. 16 F.3d at 370.

However, where, as here, the credits are discretionarily awarded, “the defendants

have not deprived [Fogle] of any earned time to which he was entitled” and thus

no liberty interest is involved. See id. (emphasis added); see also Colo. Rev. Stat.

§ 17-22.5-302(1) (“[E]arned time . . . may be deducted from the inmate’s sentence

upon a demonstration . . . that he has made substantial and consistent progress in

[a number of categories].”) (emphasis added). 6

Fogle argues that our decision in Templeman was wrongly decided because
6

the court failed to consider another Colorado statute dealing with inmate labor.
That statute, Fogle alleges, creates the right of an inmate to work which, in turn,
creates a right to earn good time credits, as the credits are tied, in part, to work
performance. However, even though work performance is a criteria in awarding
earned time credits, those credits are still awarded discretionarily. In any event,
“[w]e are bound by the precedent of prior panels absent en banc reconsideration
or a superseding contrary decision by the Supreme Court.” Zurich North America
(continued...)

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D. Claims not ruled on by the district court

In a supplemental brief to this court, Fogle argues that he raised several

claims below that the district court failed to address. Normally, “a federal

appellate court does not consider an issue not passed upon below.” Fisher v.

Oklahoma Health Care Auth., 335 F.3d 1175, 1186 (10th Cir. 2003) (quotations

omitted). However, § 1915 mandates the dismissal of a claim contained in an IFP

complaint “at any time” a court deems the complaint to be frivolous. 28 U.S.C. §

1915(e)(2)(B)(i). Thus we will determine whether any of Fogle’s unaddressed

claims have “an arguable basis either in law or in fact,” Fratus, 49 F.3d at 674,

and remand only those claims for the district court to address in the first instance.

Fogle’s supplemental brief simply recites many of the conditions of his

administrative segregation confinement without necessarily explaining how his

constitutional rights were violated. However, liberally construing Fogle’s pro se

brief, we believe he is raising the following equal protection claims related to his

time in administrative segregation: (1) being denied the opportunity to attend self-

help programs that general population inmates may attend; (2) being denied the

opportunity to attend certain “recommended” programs; (3) being denied the

opportunity to earn the same wage as general population inmates; (4) being

6
(...continued)
v. Matrix Service, Inc., 426 F.3d 1281, 1291 n.8 (10th Cir. 2005).

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denied the opportunity to contact his family in the same manner as general

population inmates; and (5) being denied the opportunity to purchase commissary

items that general population inmates may purchase. Additionally, we construe

Fogle’s brief to allege: (1) retaliation by DOC officials for exercising his First

Amendment right to speak, i.e., to complain about his placement in administrative

segregation; (2) a violation of First Amendment rights by being denied the

opportunity for church fellowship; (3) denial of access to the prison law library;

and (4) a further argument that he was denied due process by being placed in

administrative segregation without a hearing.

As a threshold matter, we must determine if Fogle raised any or all of these

claims below. If he did not, the claim(s) are waived and may not be considered

on remand. See Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005). We

conclude that all but his claim of an equal protection violation based on denial of

access to the commissary were raised below. We now turn to the properly

preserved claims.

1. Equal protection

We conclude that all of Fogle’s equal protection arguments are

“indisputably meritless” and thus must be dismissed as frivolous. The claims are,

in essence, claims that the restrictions placed on inmates in administrative

segregation are more burdensome than the restrictions placed on general

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population inmates. However, as noted above, Fogle was not similarly situated to

general population inmates while he was in administrative segregation. 7

2. Retaliation

As for Fogle’s retaliation claim, we believe that it is not so “indisputably

meritless” as to be dismissed at this state. Fogle alleges that he was

“complaining” about his placement in administrative segregation and threatening

to file suit; in response, a DOC official told him that if he did not stop

complaining he would be transferred to long-term administrative segregation at

another facility. Fogle did not stop protesting, and he was subsequently

transferred.

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

7
To the extent that Fogle’s claim of denial of familial contact is being
raised under a theory other than equal protection, it does not change our
determination that the claim is frivolous. “[T]he Supreme Court has held that
inmates have no right to unfettered visitation. Rather, prison officials necessarily
enjoy broad discretion in controlling visitor access to a prisoner . . . .” Peterson
v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citation omitted).
To the extent that Fogle’s claim of being denied the opportunity to attend
“recommended programs” is being raised under a theory other than equal
protection, Fogle has failed to plead facts sufficient to allow us to determine
whether he might be entitled to relief. Fogle nowhere specifies what sort of
programs he is referring to, whether other inmates were allowed to attend the
programs, or whether DOC officials ever indicated that he would be allowed to
attend. Pro se status “does not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be based. . . .
[C]onclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).

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the inmate’s exercise of his constitutional rights. . . . [However,] [a]n inmate

claiming retaliation must allege specific facts showing retaliation because of the

exercise of the prisoner’s constitutional rights.” Peterson, 149 F.3d at 1144

(quotations omitted) (emphasis in original). Though it is not entirely clear from

the pleadings, Fogle’s “complaints” could be referring to internal prison appeals

and/or formal grievances to prison officials. “[S]everal circuits have held that a

prisoner’s first amendment right to petition the government for redress of

grievances encompasses the filing of inmate administrative appeals.” Hines v.

Gomez, 853 F. Supp. 329, 331 (N.D. Cal. 1994) (citing cases). Moreover, Fogle

specifically alleges that the retaliation was a direct result of his protestations.

Thus there is an arguable basis for this claim; if in fact DOC officials retaliated

against Fogle based on his filing administrative grievances, they may be liable for

a violation of his constitutional rights.

3. Denial of church fellowship

Fogle’s claim of denial of church fellowship is not so patently frivolous as

to demand dismissal.

The First Amendment does not preclude prisons from restricting
inmates’ religious practices, so long as prison authorities afford
prisoners reasonable opportunities to exercise their sincerely held
religious beliefs. Four factors must guide a court’s assessment of the
reasonableness of constraints on religious practice:

First, the court considers whether there is a logical connection between
the prison regulation and the asserted penological interest. Second, the

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 court considers whether alternative means of exercising the religious
right in question remain open to inmates. Third, the court assesses the
impact the accommodation of the right in question would have on
guards, other inmates, and on the allocation of prison resources. Fourth,
the court considers whether any policy alternatives exist that would
accommodate the right in question at de minimis cost to the prison.

Wares v. Simmons, 392 F.3d 1141, 1143 (10th Cir. 2004) (citation omitted).

Fogle alleges that he was denied all opportunity for “Christian fellowship” while

in administrative segregation. It is at least arguable that such denial is an

unreasonable constraint on Fogle’s sincerely held religious beliefs.

4. Denial of access to prison law library

We also conclude that Fogle should be allowed to pursue his claim of

denial of access to the prison law library on remand. The Supreme Court has held

that prisoners do not have “an abstract, freestanding right to a law library or legal

assistance” and therefore an inmate must “demonstrate that the alleged

shortcomings in the library or legal assistance program hindered his efforts to

pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996).

Liberally construing Fogle’s pleadings, he alleges that he was denied access

to the law library, law library clerks, and jailhouse lawyers to assist him in

preparing this case. While it is true that to ultimately succeed on this claim,

Fogle would need to explain, for example, exactly what legal materials he was

seeking, see McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001), we do not

believe his claim is “indisputably meritless.” He has alleged that he was

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completely denied access to the law library and its accompanying resources and

that the denial prevented him from filing the claims in this case, some of which

we have deemed non-frivolous.

5. Conditions of administrative segregation

Finally, we consider Fogle’s claim that the conditions of administrative

segregation—daily cell searches, 24-hour electric lighting, no privacy—make

assignment to administrative segregation “atypical” enough to require a due

process hearing before being so assigned. As we have already concluded that the

district court improperly dismissed Fogle’s procedural due process claim, we need

not address this argument. However, we note that these conditions should be

considered in making the determination of whether Fogle had a liberty interest in

not being assigned to administrative segregation. See Wilkinson v. Austin, ---

U.S.---, 125 S. Ct. 2384, 2395 (2005) (noting conditions of super-maximum

security prison and concluding that “[w]hile any of these conditions standing

alone might not be sufficient to create a liberty interest, taken together they

impose an atypical and significant hardship within the correctional context”).

CONCLUSION

Fogle raises five claims that have an arguable basis in law or fact and thus

survive dismissal under § 1915(e)(2)(B)(i): his claim that he was not given proper

due process before being assigned to administrative segregation; his claim of

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cruel and unusual punishment stemming from the denial of all outdoor recreation

for three years; his claim of retaliation for the exercise of his First Amendment

rights; his claim of denial of “Christian fellowship”; and his claim of denial of

access to the law library. Accordingly, we AFFIRM in part, REVERSE in part,

and REMAND this case for proceedings not inconsistent with this decision.

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