Suarez v. Palomino , 590 F. App'x 733 ( 2014 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS October 23, 2014
    Elisabeth A. Shumaker
    TENTH CIRCUIT                      Clerk of Court
    JAMES SUAREZ, JR.,
    Plaintiff - Appellant,
    v.                                                     No. 14-1251
    (D. of Colo.)
    JOHN PALOMINO, in his individual              (D.C. No. 1:14-CV-01078-LTB)
    and official capacities as former
    investigator for Crowley County
    Correctional Facility,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **
    James Suarez, Jr., a Colorado state prisoner, appeals the district court’s
    dismissal of his pro se civil rights action brought under 
    42 U.S.C. § 1983
    . 1 He
    *
    This order and judgment is not binding precedent except under the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.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    1
    Because Suarez is proceeding pro se, we construe his filings liberally.
    See Hall v. Bellmon, 
    935 F.2d 1106
    , 1110 (10th Cir. 1991).
    also moves to proceed in forma pauperis on appeal. Having jurisdiction under 
    28 U.S.C. § 1291
    , we affirm the district court’s dismissal, dismiss the appeal as
    frivolous pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(i), deny the motion to proceed in
    forma pauperis, and assess two strikes against Suarez pursuant to 
    28 U.S.C. § 1915
    (g).
    I. Background
    Suarez is a prisoner at the Crowley County Correctional Facility (“CCCF”)
    in Olney, Colorado. According to Suarez, prison investigators questioned him
    regarding contraband being brought into the facility. 2 Suarez denied any
    involvement and stated that he would “be filing a complaint in the courts for
    being falsely accused and for [the] line of abusive questioning.” Am. Compl. at
    3. He subsequently requested a prisoner complaint form from the prison librarian.
    A few weeks later, the defendant, a CCCF investigator, had Suarez placed in
    segregation as part of the investigation where he remained for nine days.
    Proceeding pro se and in forma pauperis, Suarez filed a § 1983 action
    against the defendant. The complaint asserted two claims: (1) a violation of the
    Fourteenth Amendment Due Process Clause because Suarez was placed in
    segregation without first receiving notice or a hearing; and (2) a violation of the
    First Amendment because he was placed in segregation in retaliation for
    2
    The nature of the contraband is not entirely clear. Suarez alleged that
    investigators accused him of bringing “disc[s]” into CCCF. Am. Compl. at 3.
    -2-
    exercising his right of access to the courts. The magistrate judge found the
    complaint deficient and ordered Suarez to file an amended complaint. The
    amended complaint did not cure the deficiencies, however, and the district court
    dismissed it as legally frivolous pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(i). 3 The
    district court further certified that any appeal would not be taken in good faith
    and denied Suarez in forma pauperis status on appeal. Suarez proceeded to file a
    notice of appeal 4 and a renewed motion for leave to proceed in forma pauperis.
    II. Discussion
    Section 1915(e) instructs courts to dismiss the complaint or appeal of a
    party proceeding in forma pauperis “at any time if the court determines that . . .
    3
    At one point, the district court’s order stated that the complaint was both
    legally frivolous and failed to state a claim upon which relief may be granted.
    Because the order’s final disposition stated that the complaint was dismissed as
    legally frivolous pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(i), we focus only on the
    district court’s finding of frivolousness.
    4
    The notice of appeal was docketed as filed more than thirty days after the
    district court’s entry of judgment. This court issued a jurisdictional show cause
    order requiring Suarez to provide proof in writing that his appeal was timely
    filed. See United States v. Ceballos-Martinez, 
    387 F.3d 1140
    , 1143 (10th Cir.
    2004) (“The filing of a timely notice of appeal is an absolute prerequisite to our
    jurisdiction.”). Because Suarez is incarcerated, we apply the prison mailbox rule,
    which provides that “notice is timely filed if it is deposited in the institution’s
    internal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1).
    An inmate must use an institution’s legal mail system, if such a system exists, to
    receive the benefit of the rule. See 
    id.
     In response to the show cause order,
    Suarez submitted a copy of the prison’s outgoing legal mail log. The log
    establishes that Suarez deposited his notice of appeal before the last day for
    filing. Therefore, the notice of appeal was timely filed and we have jurisdiction.
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    the action or appeal is frivolous or malicious.” 
    28 U.S.C. § 1915
    (e)(2)(B)(i). A
    claim is frivolous “if it lacks an arguable basis either in law or in fact.” Fogle v.
    Pierson, 
    435 F.3d 1252
    , 1259 (10th Cir. 2006). We generally review a district
    court’s dismissal for frivolousness for an abuse of discretion. 
    Id.
     However, if the
    “determination turns on an issue of law, we review the determination de novo.”
    
    Id.
     After reviewing the record and construing Suarez’s pleadings liberally, we
    find that Suarez’s amended complaint is frivolous for substantially the same
    reasons explained by the district court.
    The due process claim fails because Suarez cannot establish that his
    segregation implicated a constitutionally protected liberty interest. “A protected
    liberty interest only arises from a transfer to harsher conditions of confinement
    when an inmate faces an ‘atypical and significant hardship . . . in relation to the
    ordinary incidents of prison life.’” Rezaq v. Nalley, 
    677 F.3d 1001
    , 1011 (10th
    Cir. 2012) (quoting Wilkinson v. Austin, 
    545 U.S. 209
    , 221 (2005)) (internal
    quotation marks omitted). We consider four non-dispositive factors to determine
    whether a prisoner’s segregation imposes such a hardship: “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).
    -4-
    Applying these factors to the facts alleged, there is no basis from which we
    could find Suarez faced an atypical and significant hardship. Segregation pending
    an investigation into alleged criminal activity by an inmate can serve a legitimate
    penological interest. See Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639,
    653 & n.11 (10th Cir. 2006). Suarez argued that the defendant could have
    conducted his investigation into the contraband while Suarez remained in general
    population. 5 Our role in making this assessment, however, is not to second-guess
    or micro-manage the judgments of prison officials. Rezaq, 
    677 F.3d at 1014
    .
    Accordingly, we look only for a reasonable relationship between isolation and a
    penological interest. 
    Id.
    The remaining factors similarly cut against finding a liberty interest.
    Suarez labeled his segregation as “the most harsh condition of confinement,” but
    the only specific deprivation in the complaint was the fact that he had no access
    to radio, television, or personal items. That hardly amounts to extreme
    conditions. Finally, there is no indication that the segregation increased the
    5
    The complaint also alleged the investigation was completed at the time
    Suarez was segregated. Even if that were the case, applying the remaining factors
    makes clear that Suarez was not subject to an atypical and significant hardship.
    Moreover, “we are mindful [in making this assessment] that nondisciplinary
    administrative segregation ‘is the sort of confinement that inmates should
    reasonably anticipate receiving at some point in their incarceration.’” Rezaq, 
    677 F.3d at 1012
     (quoting Hewitt v. Helms, 
    459 U.S. 460
    , 468 (1983), overruled on
    other grounds by Sandin v. Conner, 
    515 U.S. 472
    , 479–83 (1995)).
    -5-
    duration of Suarez’s confinement or that the duration of his segregation was
    indeterminate. He was returned to general population after nine days.
    Because there is no liberty interest, we need not reach Suarez’s claim that
    he received inadequate process prior to his segregation. On appeal, Suarez
    presents no argument that could conceivably refute the district court’s conclusion.
    He asserts only that prison officials must provide due process as a matter of
    course before segregating prisoners.
    We can just as easily dispose of Suarez’s First Amendment retaliation
    claim. Inmates are “not inoculated from the normal conditions of confinement
    experienced by convicted felons serving time in prison merely because [they]
    engage[] in protected activity.” Peterson v. Shanks, 
    149 F.3d 1140
    , 1144 (10th
    Cir. 1998). Therefore, to state a claim of retaliation, an inmate “must allege
    specific facts showing retaliation because of the exercise of the prisoner’s
    constitutional rights.” 
    Id.
     (quoting Frazier v. Dubois, 
    922 F.2d 560
    , 562 n.1
    (10th Cir. 1990)).
    The district court found, and we agree, that Suarez failed to allege specific
    facts showing the defendant was motivated by the fact that Suarez requested a
    prisoner complaint form from the prison librarian. The amended complaint
    asserted the prison librarian “must have informed” the defendant that Suarez had
    requested the complaint. Am. Compl. at 3. On appeal, Suarez does not address
    why this allegation is not, in the district court’s words, “mere speculation.” See
    -6-
    D. Ct. Op. at 7. He now argues the defendant was motivated by a personal
    antipathy towards him. Even if we were to consider arguments raised for the first
    time on appeal, we would still be left without any specific facts showing that the
    defendant retaliated against Suarez because he exercised his constitutional rights.
    In sum, Suarez’s amended complaint and his appeal are frivolous under 
    28 U.S.C. § 1915
    (e)(2)(B)(i). We therefore dismiss the appeal and assess two strikes
    against him. See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 
    175 F.3d 775
    , 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an action the
    district court dismissed under 
    28 U.S.C. § 1915
    (e)(2)(B), both dismissals count as
    strikes.”). We would caution Mr. Suarez that he is one strike away from being
    subject to the filing restrictions set forth in § 1915(g).
    Finally, we must address Suarez’s motion to proceed in forma pauperis on
    appeal. The district court certified pursuant to 
    28 U.S.C. § 1915
    (a)(3) that any
    appeal from its order would not be taken in good faith. Suarez can overcome the
    district court’s certification only if he can show “the existence of a reasoned,
    nonfrivolous argument on the law and facts in support of the issues raised on
    appeal.” Crownhart v. Muller, No. 14-1281, 
    2014 WL 4251610
    , at *2 (10th Cir.
    Aug. 29, 2014) (quoting DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir.
    1991)). For the reasons explained above, Suarez failed to do so. His motion is
    therefore denied.
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    III. Conclusion
    For the foregoing reasons, we AFFIRM the dismissal of Suarez’s amended
    complaint. We DISMISS Suarez’s appeal as frivolous under 
    28 U.S.C. § 1915
    (e)(2)(B)(i) and assess two strikes against him. Finally, we DENY
    Suarez’s motion to proceed in forma pauperis on appeal. We remind Suarez of
    his obligation to pay the full appellate filing fee.
    Entered for the Court,
    Timothy M. Tymkovich
    Circuit Judge
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