Sollis v. Raemisch , 668 F. App'x 846 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 8, 2016
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
SCOTT A. SOLLIS,
Plaintiff - Appellant,
v. No. 16-1200
(D.C. No. 1:16-CV-00325-LTB)
RICK RAEMISCH; LT. CONTES, (D. Colo.)
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
_________________________________
Mr. Scott Solis is a Colorado prisoner. Invoking 42 U.S.C. § 1983,
he sued for failure to provide a required assessment, communication of
misinformation, and refusal to provide a protective custody form or a full
report on custody issues. The district court summarily dismissed the
claims, reasoning that the allegations would not constitute a violation of
*
Oral argument would not materially aid our consideration of the
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
the Eighth Amendment. Mr. Solis appeals, arguing that he asserted
claims for denial of due process and equal protection rather than
violation of the Eighth Amendment. We affirm.
In the amended complaint, Mr. Solis based his claims on a denial of
due process and equal protection. We may assume, for the sake of
argument, that the district court erred in treating the claims as if they had
been based on the Eighth Amendment. With this assumption, however, we
would need to determine whether the due process and equal protection
claims would have been frivolous. In our view, they would have been.
For a due process claim, Mr. Solis had to plead facts that would
have plausibly alleged an atypical and significant hardship in relation to
the ordinary incidents of prison life. Gee v. Pacheco, 627 F.3d 1178,
1193-94 (10th Cir. 2010). Changes in classification would not ordinarily
suffice as an atypical and significant hardship. Templeman v. Gunter, 16
F.3d 367, 369 (10th Cir. 1994). But there is nothing else to suggest an
atypical and significant hardship on Mr. Solis in relation to the ordinary
incidents of prison life. As a result, the due process claim is frivolous.
Mr. Solis also asserts a denial of equal protection. But he does not
say how he was treated differently than anyone else. As a result, the
equal protection claim is frivolous. See Fogle v. Pierson, 435 F.3d 1252,
1260-61 (10th Cir. 2006).
2
Because the due process and equal protection claims were
frivolous, we affirm the dismissal.
Mr. Solis not only appeals but also requests leave to proceed in
forma pauperis. We grant the request because Mr. Solis is unable to
afford the filing fee. 1 As a result, we excuse Mr. Solis from prepaying the
filing fee. But leave to proceed in forma pauperis does not relieve Mr.
Solis of his ultimate obligation to pay the filing fee. See 28 U.S.C.
§ 1915(b)(2).
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
We have the discretion to deny leave to proceed in forma pauperis
when someone lacks good faith to appeal. 28 U.S.C. § 1915(a)(3). As
discussed in the text, Mr. Solis’s claims in district court were frivolous.
But we do not question Mr. Solis’s good faith in bringing the appeal. In
the amended complaint, Mr. Solis invoked the rights to due process and
equal protection, not the Eighth Amendment. Without legal
representation or a legal education, Mr. Solis could legitimately question
summary dismissal of the amended complaint on a theory that he had not
invoked in the amended complaint.
3