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Smith v. Russom

United States District Court, D. Colorado

November 4, 2014

NICKY SMITH, Plaintiff,
v.
MICHELL RUSSOM, SGT. NELSON, and JOSEPH HALLIGAN (UNNAMED STAFF COMMANDER ON DUTY 10:00 PM 10/26/12), Defendants.

RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS

CRAIG B. SHAFFER, Magistrate Judge.

This matter comes before the court on Defendants Michelle Russom, Aaron Nelson, and Joseph Halligan's[1] (collectively "Defendants") Motion to Dismiss (doc. #28), filed on May 5, 2014. This motion was referred to the Magistrate Judge pursuant to the Order of Reference dated January 23, 2014 (doc. #11) and Memorandum dated May 6, 2014 (doc. #29). This court has carefully considered the motion and related briefing, the entire case file, the comments offered by the parties during the June 3, 2014 Status Conference and September 23, 2014 Motion Hearing, and applicable case law. For the following reasons, I recommend that the Motion to Dismiss be granted in part and denied in part.

BACKGROUND

Mr. Smith, a pro se prisoner incarcerated at the Arkansas Valley Correctional Facility ("AVCF") in Ordway, Colorado, filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming violations of his Eighth Amendment right against cruel and unusual punishment, Fourteenth Amendment right to privacy and due process, and First Amendment right to access the courts and against retaliatory conduct. Plaintiff seeks $7.5 million in compensatory and punitive damages.

On August 10, 2012, while in the custody of Buena Vista Correctional Complex, Plaintiff voluntarily attended a mental health session with Defendant Russom, a state-sponsored interviewer. Plaintiff and Russom signed a confidentiality agreement pertaining to the session. Plaintiff alleges Russom falsely accused him of sexually harassing her during that session, and in the context of her accusation disclosed personal information to a hearings officer regarding Plaintiff's sexual habits and fantasies. Plaintiff was convicted of sexual harassment. He claims that as a result he was classified as a sex offender, thus compromising his health and safety, and his sentence was extended.

Plaintiff submitted a Step 2 grievance to his case manager on October 26, 2012 regarding Defendant Russom's accusation and disclosure. The grievance stated in relevant part: "That's why police get killed at AVCF, if an inmate can't address his mental health issues in a professional clinical setting without being subject to punishments for his thoughts you are building many potential powder kegs." (Doc. #28-1).[2] Plaintiff alleges that Defendant Nelson retrieved the grievance from the mail system and read it, restrained Plaintiff in handcuffs, and presented him to Defendant Halligan, the shift commander, at 10:45 p.m. on the night of October 26. Plaintiff claims Nelson and Halligan accused him of a Code of Penal Discipline ("COPD") violation for "advocating a facility disruption by submitting a grievance, " placed him in punitive segregation for eighteen days[3], and that he lost twenty earned days of "Good Time." (Doc. #8 at p. 7, doc. #31 at p. 2). The COPD charge and disciplinary report were later expunged. (Doc. #8 at p. 11).

Plaintiff filed his Complaint on October 30, 2013 (doc. #1) along with a Statement of Account Activity (doc. #3). On October 31, 2014, Magistrate Judge Boland ordered Plaintiff to cure the deficiencies in the Statement of Account Activity by filing the court-approved Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (doc. #4). Plaintiff filed a § 1915 motion and corresponding affidavit on November 20, 2013 (doc. #5). On November 21, 2013, Judge Boland granted Plaintiff's § 1915 motion and denied his Statement of Account Activity (doc. #6). On December 2, 2013, the court ordered Plaintiff to file an amended complaint that complied with Fed.R.Civ.P. 8. (Doc. #7). Plaintiff filed an Amended Complaint on December 30, 2013 (doc. #8) stating three claims for relief. On September 6, 2013, the court dismissed Plaintiff's first claim as legally frivolous, and dismissed Defendants Werth and Miashiaria (doc. #9).

Defendants Russom and Nelson waived service on February 3, 2014 (doc. #13). Joseph Halligan, who is no longer a DOC employee, was identified as the Unnamed Shift Commander; he was personally served on February 5, 2014 (doc. #19). On March 10, 2014, Defendant Halligan requested an extension of time to respond to the Amended Complaint (doc. #20), which this court granted on March 11, 2014 (doc. #22). Defendants moved for an extension of time to answer or otherwise respond to the Amended Complaint on April 1, 2014 (doc. #23), which this court granted on April 2, 2014 (doc. #25). On May 2, 2014, Defendants filed a Motion for Leave to File Excess Pages regarding their Motion to Dismiss (doc. #26), which District Judge Babcock denied on May 5, 2014 (doc. #27). Defendants filed their Motion to Dismiss the Amended Complaint the same day (doc. #28). Plaintiff filed his Response to Defendants' Motion to Dismiss on May 28, 2014 (doc. #31).

On June 3, 2014, Defendants moved to stay discovery pending the resolution of their Motion to Dismiss (doc. #32). This court held a Status Conference on June 3, 2014, at which the undersigned granted Defendants' Motion to Stay (doc. #33). Defendants filed a Reply in support of their Motion to Dismiss on June 16, 2014 (doc. #35), and this court subsequently scheduled a Motion Hearing to be held August 25, 2014 (doc. #36). On June 26, 2014, Plaintiff moved for appointment of counsel (doc. #40), which this court denied on July 11, 2014 (doc. #42). The Motion Hearing was ultimately held on September 23, 2014, at which the undersigned gave the parties leave to submit by October 3, 2014 supplemental information addressing the protection of privacy afforded by the Fourteenth Amendment and continued the stay on discovery pending the outcome of Defendants' Motion to Dismiss (doc. #45). Defendants filed a supplemental brief on October 2, 2014 (doc. #46), and Plaintiff filed a supplemental brief on October 7, 2014 (doc. #47).

STANDARD OF REVIEW

Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

Under Rule 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The burden is on the plaintiff to frame a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

Because Mr. Smith is appearing pro se, the court "review[s] [his] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) ("[Court's] role is not to act as [ pro se litigant's] advocate"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues") (internal citation omitted). Furthermore, the court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed.R.Civ.P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1108-10 (10th Cir. 1991).

ANALYSIS

Title 42 U.S.C. § 1983 allows an injured person to seek damages for the violation of his or her federal rights against a person acting under color of state law. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48 (1988). Mr. Smith claims that Defendant Russom violated his Fourteenth Amendment right to privacy and his Eighth Amendment right against cruel and unusual punishment by disclosing confidential information. Plaintiff claims that Defendants Nelson and Halligan likewise violated his Eighth Amendment right against cruel and unusual punishment, and restricted his access to the courts and retaliated against him in violation of the First Amendment.

A. Eleventh Amendment Immunity and Qualified Immunity

Plaintiff is suing Defendants in their individual and official capacities. ( See Doc. #31). In their official capacity, Defendants are immune from claims for monetary damages and retroactive equitable relief. "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing Brandon v. Holt, 469 U.S. 464, 471-72, (1985)). The Eleventh Amendment bars suits against a state by its own citizens, and immunizes state defendants sued in their official capacities from liability for damages or equitable relief. See Johns v. Stuart, 57 F.3d 1544, 1552 (10th Cir. 1995). Furthermore, state employees acting in their official capacities are not "persons" subject to suit under § 1983. Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994). Accordingly, Plaintiff cannot pursue a § 1983 claim for monetary damages against Defendants sued in their official capacity.

Defendants argue they are entitled to qualified immunity in their individual capacity. The doctrine of qualified immunity "shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (quoting Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (internal quotation marks omitted). Qualified immunity is an affirmative defense to section 1983 liability ( see Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995)); once a defendant asserts the defense, the plaintiff must demonstrate that qualified immunity is not proper by showing that "(1) the defendant's conduct violated a constitutional right and (2) the law governing the conduct was clearly established at the time of the alleged violation." DeSpain, 264 F.3d at 971 (quoting Baptiste, 147 F.3d at 1255). Defendants argue that Plaintiff has not satisfied even the first prong of the inquiry. For reasons addressed below, this court agrees as to Defendant Russom and reserves a finding on qualified immunity as to Defendants Nelson and Halligan.

B. Constitutional Claims

1. Eighth Amendment Claims

"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). "The Eighth Amendment's prohibition of cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from bodily harm." Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (citation omitted). The Eighth Amendment also prohibits "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials may be liable for an Eighth Amendment violation for "indifference... manifested... in their response to the prisoner's needs or by... intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed." Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014).

"The test for constitutional liability of prison officials involves both an objective and a subjective component." Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal quotations and citation omitted). First, the prisoner must "produce objective evidence that the deprivation at issue was in fact sufficiently serious.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Second, under the subjective component, the prisoner must establish deliberate indifference to his serious needs by "present[ing] evidence of the prison official's culpable state of mind." Mata, 427 F.3d at 751. The subjective standard requires a state of mind "akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm." Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837) (internal quotations and further citation omitted). The plaintiff must also allege that defendants personally participated in the Eighth Amendment violation. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)).

Mr. Smith claims he suffered a serious depravation when he was falsely accused and convicted of sexual harassment and subsequently labeled a sex offender because the conviction resulted in a lengthier prison sentence and the classification put his safety at risk. Plaintiff's allegations do not support an Eighth Amendment depravation claim for a multitude of reasons. First, Plaintiff's conviction has not been overturned. To recover damages for harm caused by actions "whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See also Edwards v. Balisok, 520 U.S. 641 (1997). Plaintiff cannot use this action to collaterally attack the COPD conviction.

Even if the conviction had been reversed, Plaintiff has not alleged personal participation on the part of Russom. A cognizable § 1983 claim requires "a plaintiff [to] plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). See also Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Russom did not personally convict Plaintiff, classify him as a sex offender, or extend his sentence. Moreover, the individuals responsible for convicting Plaintiff are not identified in the Amended Complaint, and Plaintiff does not allege that they acted with deliberate indifference in seeking to classify Plaintiff and extend his sentence. Finally, Plaintiff is precluded from seeking relief under § 1983 to the extent he has an available remedy in state tort law. Cf. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992) ("Because the Due Process Clause does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society, we have previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law") (internal quotation marks and citation omitted). See also Graves v. Thomas, 450 F.3d 1215, 1220-21 (10th Cir. 2006) (noting the concern that § 1983 not replace state tort law).

Plaintiff further claims that Defendants Nelson and Halligan violated his Eighth Amendment right against cruel and unusual punishment when they intercepted his Step 2 grievance and reported Plaintiff for advocating a facility disruption, which resulted in Plaintiff spending eighteen days in punitive segregation and losing earned time credits. The charge disciplinary report were later expunged. These allegations do not establish a constitutional violation because disciplinary segregation does not constitute a significant deprivation. See Sandin v. Connor, 515 U.S. 472, 484-85 (1995) ("Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.") See also Abbott v. McOtter, 13 F.3d 1439, 1441 (10th Cir. 1994) ("The warden can impose restrictive conditions of confinement upon plaintiff without violating the Eighth Amendment, as long as those conditions do not involve the wanton and unnecessary infliction of pain or are not grossly disproportionate to the severity of the crime warranting imprisonment.") (internal quotation marks and citations omitted). Accordingly, Plaintiff has not stated an Eighth Amendment claim.

2. Fourteenth Amendment Claims

The due process clause of the Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law. U.S. Const. amend. XIC, § 1. Substantive due process protects against the arbitrary deprivation of these rights, regardless of the procedures applied; procedural due process guarantees that deprivation will not occur unless fair procedures are followed in making the decision. See Archuleta v. Colorado Dep't of Insts., Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir. 1991). In considering a procedural due process claim, the court must determine whether the plaintiff has a protected interest and then whether he or she was afforded an appropriate level of process. Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998) (citing Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996)).

a. Right to Privacy

Plaintiff claims Defendant Russom violated his Fourteenth Amendment right to privacy when she disclosed personal information about him.[4] "The constitutional right to privacy includes an individual interest in avoiding disclosure of personal matters....'" Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)). The Tenth Circuit relied on Whalen in holding that "[d]ue process thus implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state." Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). The right to privacy rests on whether a person has "a legitimate expectation... that [the information] will remain confidential while in the state's possession." Id. Whether the expectation is legitimate depends in part "upon the intimate or otherwise personal nature of the material the state possesses." Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir. 1995) (quoting Mangels, 789 F.2d at 839). Protection afforded by the right of privacy is not absolute. A legitimate disclosure must "advance a compelling state interest which, in addition, must be accomplished in the least intrusive manner." Anderson, 469 F.3d at 914 (quoting Mangels, 789 F.2d at 839) (internal citation omitted). The court must first determine whether the information at issue is protected by the right to privacy; and then whether the state can establish a compelling interest for disclosure and that disclosure was accomplished using the least intrusive means available. Sheets, 45 F.3d at 1387.

Plaintiff arguably possesses a constitutionally protected privacy interest in the sexual predilections that Defendant Russom attributed to him.[5] See Eastwood v. Department of Corrections, 846 F.2d 627, 631 (10th Cir. 1988) (privacy interest triggered when "an individual is forced to disclose information regarding personal sexual matters."); Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998) ("Our sexuality and choices about sex... are interests of an intimate nature which define significant portions of our personhood. Publically revealing information regarding these interests exposes an aspect of our lives that we regard as highly personal and private."). See also United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980) ("Information about one's body and state of health is a matter which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life."); but see Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010) ("Loss of privacy is an inherent incident of confinement... prisoners do not have a constitutionally protected expectation of privacy in prison treatment records when the state has a legitimate penological interest in access to them."). However, Russom disclosed the personal information in the context of reporting Plaintiff for sexual harassment. This divulgence suffices as a "compelling state interest." To find otherwise would suggest that state employees run the risk of violating prisoners' constitutional rights when they report what they perceive as offensive or harassing behavior. Indeed, some conduct does not enjoy the right to privacy protection. Cf. Mangels, 789 F.2d at 839 ("[t]he possession of contraband drugs does not implicate any aspect of personal identity which, under prevailing precedent is entitled to constitutional protection."). It stands to reason that an individual compromises his right to privacy if when divulging intimate and personal information he also subjects the listener to lewd and obscene gestures. Russom also limited her disclosure to one person, whom Plaintiff identified in oral argument as the CDOC hearing officer. This demonstrates that the disclosure was limited to the specific purpose of Russom substantiating her accusation.

b. Liberty Interest

Plaintiff also claims he has a liberty interest in not being labeled a sex offender and that Russom's accusations subjected him to an atypical hardship in the form of a longer prison sentence. "To invoke the protections of procedural due process, a plaintiff must establish the existence of a recognized property or liberty interest." Setliff v. Mem'l Hosp. of Sheridan Cnty., 850 F.2d 1384, 1394 (10th Cir. 1988). The Supreme Court has held that "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) (quoting Sandin, 515 U.S. at 484). "Changing an inmate's prison classification ordinarily does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison." Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). However, an inmate may have a liberty interest in his initial classification as a sex offender because of the stigma attached to the label. See Hubler v. Lander, 413 Fed.Appx. 81, 82 (10th Cir. 2011) (citing Chambers v. Colo. Dep't of Corr., 205 F.3d 1237, 1242-43 (10th Cir. 2000). See also Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (stating that that "[t]he classification of an inmate as a sex offender is precisely the type of atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life that the Supreme Court held created a protected liberty interest.") (internal quotation marks and citation omitted). The Neal court concluded that the stigmatizing label of "sex offender" combined with requiring completion of specialized treatment as a condition to parole eligibility creates the type of liberty deprivations that necessitate procedural due process. Neal, 131 F.3d at 830. An inmate whose classification as a sex offender implicates a liberty interest is entitled to the following protections: "notice of the charges, an opportunity to present witnesses and evidence in defense of those charges, and a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action." Gwinn v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004).

Mr. Smith claims that his sexual harassment conviction resulted in a sex offender designation and a longer sentence. He does not allege whether he was provided the procedural safeguards listed in Gwinn. However, this court need not wrestle to conclusion the question of whether Plaintiff has identified a property interest or alleged violations of procedural due process because Heck is clearly applicable. Plaintiff's conviction has not been overturned. A claim for damages for a constitutional violation that would "necessarily imply the invalidity of [the prisoner's] conviction or sentence" is not cognizable under § 1983 if the conviction or sentence stands. See Heck, 512 U.S. at 487. As with his Eighth Amendment claim for cruel and unusual punishment resulting from the sex offender classification, Plaintiff cannot seek damages for the violation of a liberty interest where that claim would invalidate a conviction.

3. First Amendment Claims

a. Access to Courts

Mr. Smith claims that Defendants Nelson and Halligan restricted his access to court in violation of the First Amendment when they intercepted his Step 2 grievance. The First Amendment guarantees any person the right "to petition the Government for a redress of grievances." U.S. Const. amend. I. See also Hudson v. Palmer, 468 U.S. 517, 523 (1984) (the right of access to courts is grounded in the First Amendment). To state a violation of this right, Plaintiff must demonstrate an actual injury that "hindered his efforts to pursue a legal claim." Davis v. Arkansas Valley Corr. Facility, 99 Fed.Appx. 838, 842-43 (10th Cir. 2004) (internal citation omitted). "The injury requirement is not satisfied by just any type of frustrated legal claim." Lewis v. Casey, 518 U.S. 343, 354-56 (1996) (the touchstone of the right to access the court is a prisoner's "reasonably adequate opportunity to file nonfrivolous legal claims challenging [] convictions or conditions of confinement.").

Plaintiff's grievance pertained to the incident with Defendant Russom. Confiscation of the grievance prevented Plaintiff from pursuing his dispute because the Prison Litigation Reform Act mandates a strict sequential order. See 42 U.S.C. § 1997e(a). His Step 3 grievance was denied without a Step 2 grievance on record and he was thereafter unable to exhaust the available administrative remedies. (Doc. #31 at p. 12). However, Plaintiff concedes that while Nelson and Halligan "stymied, hindered, and interfered" with his ability to file a claim, they did not "stop [him]" from proceeding with this lawsuit. (Doc. #31 at p. 13). Moreover, this court finds that Plaintiff cannot state an Eighth or Fourteenth Amendment claim as to Russom because his harassment conviction has not been overturned and Russom's disclosure qualifies as a compelling state interest that utilized the least intrusive means. Accordingly, Plaintiff has not stated a claim that his access to the courts has been restricted.

b. Retaliation

Plaintiff also claims that Nelson and Halligan accused Plaintiff of advocating a facility disruption in retaliation of him filing the grievance. "[Prison] officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights... even where the action taken in retaliation would be otherwise permissible." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). A retaliation claim requires a plaintiff to show that "(1) he was engaged in constitutionally protected activity, (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct." Nielander v. Bd. of Cnty. Comm'rs of Cnty. of Republic, 582 F.3d 1155, 1165 (10th Cir. 2009). "[P]laintiff must prove that but for the retaliatory motive, the incidents to which he refers... would not have taken place." Peterson, 149 F.3d at 1144.

A prisoner's right to file a grievance is protected by the First Amendment. See, e.g., Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir. 1996). Plaintiff alleges that Nelson and Halligan reported him for advocating a facility disruption for no reason other than he wrote the grievance, and that as a result he was removed from general population and lost earned time and good time. See Doc. #31 at p. 10. The Associate Warden at Buena Vista Correctional Complex later expunged the charge and disciplinary report from Plaintiff's record and restored his credits for good behavior. ( See Doc. #31 at p. 2).

Defendants argue that Plaintiff was not engaged in protected activity because his grievance contained threatening language. ( See Doc. #28 at p. 13) (citing Cowens v. Warren, 150 F.3d 910 (8th Cir. 1998)). Defendants further argue that they acted with the legitimate penological interest of "preserv[ing] institutional order and discipline." Id. at p. 14.

Retaliation is often difficult to establish by direct evidence because it implicates defendants' state of mind. See Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (citing McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979), where the First Circuit accepted allegations that a plaintiff was transferred to a different prison after filing a lawsuit as circumstantial evidence of retaliation). "While it may be possible in some cases to support such an ultimate fact [of retaliation] with clear evidence which can be averred in the complaint, we cannot presume this will often be the case." Maschner, 899 F.2d at 949 (internal quotation marks and citations omitted). Here, Plaintiff alleges that Nelson retrieved and read his grievance and immediately handcuffed Plaintiff and, along with Halligan, removed him to punitive segregation. I find that Plaintiff's allegations suffice to survive a Rule 12(b)(6) challenge. The question of whether the language in Plaintiff's grievance constitutes a threat or abuse so as to remove it from First Amendment protection is better addressed on a motion for summary judgment, as is whether Nelson and Halligan's actions were justified as pursuing a constitutional objective.

C. Monetary Damages

To the extent Plaintiff seeks $7.5 million against Defendants in compensatory and punitive damages he has not alleged that he sustained a physical injury resulting from constitutional violations. The Prison Litigation Reform Act bars a prisoner from recovering compensatory damages "for mental or emotional injury suffered while in custody without a prior showing of physical injury." See 42 U.S.C. § 1997e(a) and (e). See also Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (citing Robinson v. Page, 170 F.3d 747, 748 (7th Cir. 1999)). The Amended Complaint contains no allegations that demonstrate or suggest that Plaintiff suffered physical injuries attributable to Defendants' conduct.

Though this omission precludes Plaintiff from recovering compensatory damages, he may nevertheless pursue nominal or punitive damages should he prevail on the merits. See Lewis v. Clark, 577 Fed.Appx. 786, 802 (10th Cir. 2014). See also Searles, 251 F.3d at 879 (10th Cir. 2001) (holding § 1997e(e) does not bar nominal or punitive damages in the absence of injury). In light of this court's recommendation that Plaintiff's First Amendment claim for retaliation is better addressed on motion for summary judgment, I reserve a finding on Plaintiff's request for punitive damages for a later time.

CONCLUSION

For the foregoing reasons, this court RECOMMENDS that Defendants' Motion to Dismiss (doc. #28) be GRANTED in part and DENIED in part, thereby dismissing Plaintiff's Second Claim and Defendant Russom, and Plaintiff's Third Claim as it pertains to his First Amendment right to access the courts.

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

United States Court of Appeals, Tenth Circuit.

Gregory Stewart Hubler, Las Animas, CO, pro se.

Jennifer Susan Huss, Esq., Attorney General for the State of Colorado, Denver, CO, for Defendant-Appellee.

Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.

ORDER AND JUDGMENTFN*

FN* 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.

MONROE G. McKAY, Circuit Judge.

**1 After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without oral argument.

In this § 1983 action, Appellant, a state prisoner proceeding pro se, argues that prison officials violated his due-process rights by changing his sex offender sub-classification in a way that lowered the amount of earned-time credits he was eligible to receive. The district court held that Appellant was not entitled to due process in the change of his sub-classification and therefore dismissed the action. This appeal followed.

"To invoke the protections of procedural due process, a plaintiff must establish the existence of a recognized property or liberty interest." Setliff v. Mem'l Hosp. of Sheridan Cnty., 850 F.2d 1384, 1394 (10th Cir.1988). "Changing an inmate's prison classification ordinarily does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison." Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). An inmate may have a liberty interest in his initial classification as a sex offender due to the stigma attached to the label. See Chambers v. Colo. Dep't of Corr., 205 F.3d 1237, 1242-43 (10th Cir.2000). However, sub-classifications within the sex offender code do not carry with them the same type of stigma since they merely indicate the inmate's readiness for participation in the treatment program.

Appellant argues he had a liberty interest in his sex offender sub-classification because an adverse adjustment to the sub-classification can result in repercussions such as reduced eligibility for earned-time credits, a higher custody level, and a reduced likelihood of parole. He cites to Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), arguing that this case mandates due process protections whenever an action is taken that may reduce an inmate's earned-time credits. However, Wolff dealt with good-time credits *83 that were provided as a statutory right and could only be lost if prisoners were guilty of serious misconduct. Wolff's due-process procedures do not apply to discretionary awards of earned-time credits like those involved in the Colorado scheme. See Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir.2006); Templeman, 16 F.3d at 370; see also Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) ("We have also articulated a requirement, implicit in our earlier decisions, that the regulations contain explicitly mandatory language'... in order to create a liberty interest."). Nor does a potentially higher custody level create a liberty interest. See Templeman, 16 F.3d at 369. As for parole, Appellant has not shown that a change to his sub-classification would necessarily make him ineligible for parole, even if it might be a factor considered by the parole board. Cf. Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that no protected liberty interest arose from a misconduct hearing where a finding of misconduct could be considered in a parole decision but would not inevitably affect the result).

**2 Appellant relies heavily on the district court's decision in Beebe v. Heil, 333 F.Supp.2d 1011 (D.Colo.2004), in which the district court held that an inmate sentenced to an indeterminate sentence of three years to life had a liberty interest in participating in a statutorily mandated sex offender treatment program, without which he would not be eligible for parole. Whatever the merits of that decision, we are not persuaded it has relevance to the circumstances of this case, where, as explained above, Appellant has not shown that a change in his sub-classification or his non-participation in the treatment program will deprive him of any protected liberty interest.

For substantially the same reasons stated by the magistrate judge and the district court, we AFFIRM the dismissal of Appellant's complaint. We GRANT Appellant's motion to proceed in forma pauperis on appeal and remind him of his obligation to continue making partial payments until his entire filing fee has been paid in full.

United States Court of Appeals, Tenth Circuit.

Sylvester Davis, #96327, Crowley County Correctional Facility, Olney Springs, CO, pro se.

Edward T. Farry, Farry and Rector, L.L.P., Colorado Springs, CO, Josh Adam Marks, Melanie Bailey Lewis, Hall & Evans, Denver, CO, for Defendants-Appellees.

Before SEYMOUR, LUCERO, and O'BRIEN, Circuit Judges.

ORDER AND JUDGMENT*

FN* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

O'BRIEN, Circuit Judge.

**1. 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. 34.1.9(G). The case is therefore ordered submitted without oral argument.

Sylvester Davis, a state prisoner, appeals the district court's dismissal of his 42 U.S.C. § 1983 complaintFN1 for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we agree Davis fails to state a claim and DISMISS his appeal as frivolous.

FN1. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. The operative pleading is Davis' "Final Amended Prisoner's Civil Rights Complaint." (R., Docket Entry 17.)

Davis was incarcerated at the Colorado Department of Corrections' Arkansas Valley Correctional Facility (AVCF) and later at its Crowley County Correctional Facility (Crowley). While incarcerated at AVCF, he ran into disciplinary problems. He alleges as follows. On August 16, 2000, he was typing a paper in the General Library. Officer J. Halpin requested to see the paper. Davis did not comply. Instead, he removed the paper from the typewriter and placed it in a pocket folder with other papers. Halpin confiscated the pocket folder and also a manila envelope.FN2 In the pocket folder, he found the sheet of paper on which Davis had been typing. It was legal work. The law librarian examined the pocket folder and manila envelope and found a handwritten sheet of paper with another inmate's name on it. At a hearing conducted on September 7, 2000, Davis was charged with disciplinary violations for disobeying a lawful order (found guilty) and possession of unauthorized legal documents (found not guilty).FN3 The *841 following day, Davis sought return of the confiscated legal materials on the basis he was found not guilty of possession of unauthorized legal documents. On September 13, Halpin informed Davis the seized papers were in the evidence locker in the Receiving/Discharge Department and he could contact that department concerning their retrieval. On October 5, in response to a Step I grievance Davis filed, Officer Steve Hartley informed him legal materials were not permitted in the General Library, and as a result his confiscated paperwork was considered contraband and would be treated as such. He further warned Davis that he had ten days to "mail the items out or have them destroyed." (R. Docket Entry 75, Ex. B.) On October 30, Officer Garcia, responding to a Step II grievance Davis filed, communicated essentially the same information: Davis' confiscated papers were subject to disposition as contraband because legal work was to be done in the Law Library and not in the General Library. Furthermore, the papers contained material concerning another inmate's case, which regulation prohibited. Davis did not elect to mail the items out of the facility or authorize their destruction. He claims Officers Hartley and Garcia authorized their destruction on October 30.FN4 In response to a Step III grievance, again seeking return of his materials, Davis was informed on December 29 that he was required to pursue his claim through an appeal of the disciplinary action that led to the confiscation of his materials, not through the grievance process.

FN2. Davis claims the confiscated papers were legal materials in aid of seeking post-conviction relief from his criminal conviction. Although the record is unclear as to the particulars of the materials, Davis complains specifically about two items: (1) a statement from one Tina King, and (2) an IOU from him to his co-defendant.

FN3. Davis was found not guilty of the possession charge because the paper with the other inmate's name on it was legal notes rather than legal documentation. Davis was warned not to possess paperwork with another inmate's name on it.

FN4. The record is unclear whether the papers were intentionally destroyed, negligently destroyed or merely misplaced. We will assume, without finding, that the papers were intentionally destroyed as contraband pursuant to prison regulation.

In February 2000, Davis was transferred to Crowley. According to his complaint, the medical staff at Crowley discontinued pain medication previously prescribed for him free of charge at AVCF.FN5 He claims he was required to purchase the medication over-the-counter at the Crowley canteen at a cost he could not afford. He also complains that his $3.00 co-pay for medical visits should cover the cost of his pain medication.

FN5. The pain medication prescribed by AVCF was for treatment of an allergy-related sinus condition. The medical staff at Crowley prescribed Chlor-Trimeton and directed Davis to obtain pain medication from the canteen.

In his complaint, Davis alleges Hartley and Garcia violated his Fourteenth Amendment right to due process by confiscating and destroying his legal materials and by transferring him to Crowley in retaliation for challenging the confiscation. He also claims they violated the First Amendment by interfering with his right of access to the courts.FN6 Additionally he alleges Steve Hargett, Warden of Crowley, *842 violated his Eighth Amendment right to reasonable medical care. He seeks $100, 000.00 in damages.

FN6. Although Davis variously characterizes his claims against Hartley and Garcia as violations of the Fifth Amendment (destruction of legal property, deprivation of access to court, retaliatory transfer), Fourteenth Amendment (confiscation and destruction of legal materials), and First and Sixth Amendments (deprivation of access to court), we construe his deprivation of access to court claim to be an alleged violation of the First and Fourteenth Amendments, and all of his remaining allegations to be subsumed in his Fourteenth Amendment claim. See Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (right of access to courts grounded in First Amendment); Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-30, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (due process clause protects right of access to courts).

We review de novo the district court's dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).

"[A]ll well-pleaded factual allegations in the... complaint are accepted as true and viewed in the light most favorable to the nonmoving party.FN7 A 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

FN7. Exhibits attached to a pleading are considered a part thereof. Fed.R.Civ.P. 10(c).

Id. (quotations and citation omitted). Although we construe pro se pleadings liberally, Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.2003), "[we] will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997). Nor are we "bound by conclusory allegations, unwarranted inferences, or legal conclusions." Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994).

As to Davis' claims against Hartley and Garcia, Davis has failed altogether to allege either of them was involved in the confiscation of his legal materials. Therefore, the confiscation portion of his claim fails. As to the destruction portion of his claim, he only alleges in conclusory fashion that either Hartley or Garcia was involved in the destruction of his materials. This is insufficient. The mere fact each may have signed a grievance response indicating the confiscated materials were subject to disposal as contraband hardly suffices to establish that either participated in or authorized the destruction of the materials. For this reason, the destruction portion of his claim fails. Even if Davis adequately alleged that Hartley and Garcia intentionally destroyed or authorized the destruction of his legal materials pursuant to prison regulation (see n. 4), an act which concededly requires a pre-deprivation hearing in order to comply with due process, Gillihan v. Shillinger, 872 F.2d 935, 939-40 (10th Cir.1989), we conclude the pre-deprivation due process accorded to Davis was sufficient. He was informed through the grievance process he could preserve the confiscated materials by sending them out of the facility; otherwise, they would be destroyed. In failing to arrange to send the materials out of the facility, he acceded to their destruction. Furthermore, he was informed he must appeal the underlying disciplinary action in order to contest the confiscation. The record is devoid of any evidence he pursued an appeal.FN8 Under these circumstances, due process is satisfied.

FN8. See Logan, 455 U.S. at 434 n. 7, 102 S.Ct. 1148 (due process not violated where claimant does not avail himself of hearing procedure).

**3 Davis' claim that Hartley and Garcia retaliated against him by transferring him to Crowley is, like the confiscation claim, devoid of specific factual allegations connecting either of them to his transfer. Consequently, Davis' retaliation claim fails as well. Finally, while Davis enjoys the fundamental right of access to the courts, Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), to state a claim for deprivation of this right he must demonstrate an actual injury that "hindered his efforts to pursue a legal claim." Id. at 351. He failed to *843 demonstrate to the district court how the destruction of his legal materials hindered him in the petitioning for post-conviction relief.

Turning to Davis' claim against Hargett, while it is true that "[a] prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment[, ]" Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation omitted), it is also true that "a supervisor is not liable under § 1983 for the actions of a subordinate unless an affirmative link exists between the constitutional deprivation and either the supervisor's personal participation or his failure to supervise...." Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.1996) (quotation omitted). Davis has failed to demonstrate this link. Copying Hargett with correspondence outlining his complaints about medical care, without more, does not sufficiently implicate the warden under § 1983.

We conclude Davis' appeal is frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and DISMISS it.FN9 We also deny leave to appeal in forma pauperis and remind Davis of his obligation to pay in full the filing and docketing fees.

FN9. Dismissal of Davis' appeal as frivolous counts as a strike against him. 28 U.S.C. § 1915(g). Dismissal by the district court for failure to state a claim also counts as a strike. Id . Therefore, he accumulates two strikes as a result of this litigation. See Jennings v. Natrona County 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.").

United States Court of Appeals, Tenth Circuit.

*788 Raymond Anthony Lewis, Adelanto, CA, pro se.

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

ORDER AND JUDGMENTFN*

FN* 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. This order 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.

SCOTT M. MATHESON, JR., Circuit Judge.

Raymond Anthony Lewis, a federal pre-trial detainee housed in a Wyoming detention facility, filed a pro seFN1 civil rights action against the facility's head administrator and several other individuals alleging various constitutional violations on behalf of himself and a class of inmates. After dismissing Mr. Lewis's first complaint and granting leave to amend, the district court concluded Mr. Lewis's second complaint failed to state a claim upon which relief may be granted because he could not represent a class of inmates pro se and his individual claims did not plausibly*789 allege any constitutional violations. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

FN1. Because Mr. Lewis is proceeding pro se, we construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir.2009) ("[W]e must construe [a pro se litigant's] arguments liberally; this rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.").

I. BACKGROUND

A. Factual Background FN2

FN2. "We recite the facts as alleged in Mr. [Lewis's] complaint and in the light most favorable to him." Cressman v. Thompson, 719 F.3d 1139, 1141 (10th Cir.2013).

Between May 30 and September 20, 2013, Mr. Lewis was housed in Natrona County Detention Center ("NCDC") in Wyoming while awaiting resolution of a pending federal criminal case. ROA at 418; Aplt. Br. at 3. In late July and early August 2013, Mr. Lewis filed several administrative complaints with NCDC officials regarding the law library's lack of certain materials, NCDC's mail policy for legal materials, and NCDC's bar on inmate-to-inmate correspondence. See ROA at 28, 30, 58-63, 86-90, 334, 338-39.FN3 He complained the first two deficiencies prevented him from researching his pending federal case and an unrelated pending state case in Colorado. He complained the bar on inmate-to-inmate correspondence prevented him from communicating with his son, who is incarcerated elsewhere.

FN3. Mr. Lewis also sent a letter to the Natrona County Attorney's Office complaining about the quality of NCDC's law library. See ROA at 69.

Around 10:00 p.m. on August 7, 2013, Mr. Lewis was denied access to the law library despite being next on the list. Speaking through an intercom system, the control tower deputy told Mr. Lewis he did not need to use the library because he had an attorney. ROA at 52, 236. On September 17, 2013, Mr. Lewis pled guilty to the federal charges against him in his pending case and waived his right to a suppression hearing. Two days later, Mr. Lewis filed the instant suit (discussed below), and on September 20, he was transferred to a new facility in Platte County, Wyoming, with better library resources.

B. Procedural Background

1. Dismissal of first complaint

On September 19, 2013, Mr. Lewis filed a pro se civil rights complaint under 42 U.S.C. §§ 1983, 1985 & 1986 naming Jerry Clark, the Deputy Sheriff of Natrona County Sheriff's Department, Detentions Division ("Lieutenant Clark"), and several other "unknown named" defendants, including deputies working at the detention center and lawyers from the Natrona County Attorney's Office ("NCAO"). Mr. Lewis alleged several constitutional claims, sought to certify a class of inmate detainees, and submitted a list of interrogatories for Lieutenant Clark. Mr. Lewis also sought to proceed in forma pauperis ("ifp").

On October 16, 2013, the district court denied Mr. Lewis's motion to proceed ifp and sua sponte dismissed his first complaint for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) (providing that a court "shall dismiss the case" if it determines that the action "fails to state a claim on which relief may be granted"). The court read Mr. Lewis's "rather lengthy complaint" (124 pages) to attempt to assert unconstitutional deprivation of access to the courts regarding his federal criminal trial due to "lack of legal resources at the Natrona County Jail." ROA at 177. Because Mr. Lewis was represented by counsel in his federal criminal case and had recently entered a plea agreement, the court concluded his complaint failed to show prejudice, which is required to state a claim based on deprivation of access to *790 the courts. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (requiring that a prisoner demonstrate "the alleged shortcomings in the library" actually hindered his or her "efforts to pursue a legal claim"); ROA at 178 ("[I]t is not clear to the Court, given the status of Plaintiff's pending criminal case, how Plaintiff has been prejudiced in pursuing litigation."). Additionally, the court rejected Mr. Lewis's attempt to bring a class action because he filed "pro se and cannot represent other individuals, since he is not a properly licensed attorney." ROA at 178. It therefore dismissed his complaint without prejudice and granted leave to amend.

2. Denial of motion for class certification and dismissal of amended complaint

On October 25, 2013, Mr. Lewis filed an "ex Parte motion to Grant Plaintiff to file under" Federal Rule of Civil Procedure 23. ROA at 185. On November 20, 2013, Mr. Lewis filed a 164-page amended complaint, which alleged numerous facts, advanced eight claims under various constitutional provisions, and included twenty-eight exhibits documenting his administrative grievances. See ROA at 198-361 (amended complaint), 205 (arguments), 298-350 (exhibits). The amended complaint alleged several constitutional violations against the following defendants: (1) Lieutenant Clark; (2) an unknown deputy working Control Tower Two at the Natrona County Detention Center on August 7, 2013 at 10:00 p.m.; (3) 45 other unknown deputies working at the NCDC mail room between July and August 2013; and (4) 15 unknown lawyers working at the NCAO. See ROA at 198-02, 217, 227, 235, 248, 261, 276, 284, 288. In his prayer for relief, Mr. Lewis sought declaratory relief, various forms of injunctive relief, and monetary damages, including nominal, compensatory, and punitive damages. See id. at 354-58.

On January 8, 2014, the district court denied Mr. Lewis's ex parte motion to certify a class under Rule 23 and dismissed his amended complaint. See ROA at 402. The court first rejected Mr. Lewis's motion for Rule 23 certification for the same reasons it rejected his class-based arguments in its original order-he could not represent a class pro se. Id. at 403.

The district court then considered the allegations in his amended complaint. The court read his amended complaint to allege several claims: (1) an equal protection violation stemming from the allegation that state prisoners at NCDC have access to state legal materials but federal detainees like Mr. Lewis do not have access to federal legal materials; (2) denial of access to the courts based on his inability to access the law library and the law library's lack of federal materials; (3) denial of access to the law library in retaliation for filing grievances; (4) improper advice given by NCAO lawyers to NCDC officials regarding the legality of NCDC policies; (5) denial of written correspondence with his incarcerated son; (6) "general allegations about prisoner safety" relating to "snitch' paperwork"; and (7) an unspecified claim that "Defendants returned federal legal materials [Mr. Lewis's] wife sent him for exceeding the 10-page limit." ROA at 404-07.FN4

FN4. The court found the "remaining claims in [Mr. Lewis's] Amended Complaint... either duplicative of the claims previously discussed, or [] lack[ing] sufficient facts for the Court to decipher a claim." Id. at 408.

For various reasons discussed below, the district court dismissed Mr. Lewis's amended complaint under *791 28 U.S.C. § 1915(e)(2)(B)(ii) for failing to state a plausible claim upon which relief could be granted. Although the court dismissed his amended complaint without prejudice, it did not grant Mr. Lewis leave to amend his complaint a second time. The court also denied his motions for appointment of counsel and preliminary injunction or temporary restraining order as moot because he had been transferred to a different facility. See id. at 408-09. The court did not enter a separate judgment.

3. Motion to amend or alter the judgment

On February 10, 2014, Mr. Lewis filed a motion to amend or alter the judgment with a re-amended complaint. ROA at 410. On February 13, the district court denied Mr. Lewis's motion, reasoning that it dismissed Mr. Lewis's amended complaint "without prejudice, for failure to state a claim, " and "[t]herefore, this case is closed." Id. at 525. The court also explained that "since the matter was dismissed without prejudice, there was no final judgment entered in this case." Id . Accordingly, Mr. Lewis's requested remedies were "not available." Id . The court nevertheless reviewed Mr. Lewis's re-amended complaint and concluded he raised the same arguments that the court had already rejected from his first amended complaint. Id.

Mr. Lewis filed a notice of appeal on February 24, 2014. On April 5, 2014, Mr. Lewis filed a 35-page brief in this court.FN5

FN5. No response brief has been filed. The district court docket does not indicate the defendants have been served any complaint in this case.

II. DISCUSSION

On appeal, Mr. Lewis contends the district court erred in refusing to certify his requested class of inmate detainees and dismissing his individual claims. We first discuss (A) our jurisdiction. We then consider Mr. Lewis's arguments regarding (B) his motion to certify a class and (C) his individual claims.

A. Jurisdiction

Before we may consider Mr. Lewis's appeal, we must determine whether we have appellate jurisdiction, FN6 which is present only if: (1) the district court's second dismissal without prejudice was a "final" and appealable order under 28 U.S.C. § 1291; and (2) Mr. Lewis's notice of appeal was timely. See 28 U.S.C. § 1291 (providing appellate jurisdiction over "appeals from all final decisions of the district courts"); Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ("Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement."). We address these issues in turn.

FN6. "We have routinely recognized our ability to raise the question of appellate jurisdiction sua sponte." Kennedy v. Lubar, 273 F.3d 1293, 1301 (10th Cir.2001).

1. Finality

In Moya v. Schollenbarger, 465 F.3d 444 (10th Cir.2006), we laid out "the following principles" for "reviewing dismissal orders for finality":

First, if a district court order expressly and unambiguously dismisses a plaintiff's entire action, that order is final and appealable. Second, where a district court dismissal expressly denies the plaintiff leave to amend, or the district court's grounds for dismissal are such that the defect cannot be cured through an amendment to the complaint, that dismissal (even if it is ambiguous or nominally of the complaint) is for practical purposes of *792 the entire action and therefore final. Third, when the dismissal order expressly grants the plaintiff leave to amend, that conclusively shows that the district court intended only to dismiss the complaint; the dismissal is thus not a final decision. Finally, in all other cases, we look to the language of the district court's order, the legal basis of the district court's decision, and the circumstances attending dismissal to determine the district court's intent in issuing its order-dismissal of the complaint alone or actual dismissal of plaintiff's entire action. If the effect of the district court order is that the plaintiff is effectively excluded from federal court, then the district court must have intended to dismiss the entire action and our appellate jurisdiction is proper.

Id. at 450-51 (citations, quotations, and footnotes omitted).

In making this inquiry, we have said that "a dismissal with prejudice' is final and appealable because it means either that the entire action is dismissed or that the complaint is dismissed without leave to amend." Id. at 451 n. 8. "In contrast, a dismissal without prejudice' may or may not be final, depending on if it is intended to dispose of the cause of action." Id . (quotations omitted). Importantly, "bare terminology in a district court order is not determinative." Id. at 451 n. 7.

The district court in this case did not expressly dismiss Mr. Lewis's entire action (it dismissed his complaint without prejudice), its grounds for dismissal (failure to state a claim) were largely curable, and it did not expressly grant leave to amend. Accordingly, only the final category from Moya-determining the court's intent by looking at the language of its order, the legal basis for its decision, and the circumstances attending dismissal-applies here.

These factors indicate the district court intended to dismiss Mr. Lewis's entire action. Although the court dismissed Mr. Lewis's complaint "without prejudice, " it did not expressly grant him leave to re-amend his complaint (which it had done in its previous dismissal order). Compare ROA at 179 with id. at 402, 408-09. Moreover, in denying Mr. Lewis's motion to amend the judgment, the court observed "this case is closed, " id. at 525, again showing it had intended to dismiss his entire action in its previous order. In light of the foregoing, we conclude the district court intended to dismiss Mr. Lewis's entire action, and its order denying Mr. Lewis's motion for certification and dismissing his amended complaint without prejudice is therefore final and appealable under 28 U.S.C. § 1291.

2. Timeliness

Mr. Lewis filed his notice of appeal on February 24, 2014, which was 47 days after the district court dismissed his amended complaint. Normally such a delay would be untimely. See Fed. R.App. P. 4(a)(1) (notice of appeal "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from"). But the district court failed to enter the required separate document along with its dismissal order. See Fed.R.Civ.P. 58(a) (requiring that "[e]very judgment" "be set out in a separate document" in all but five exceptions not relevant here). As a result, judgment was not entered in Mr. Lewis's case until 150 days after the dismissal order's entry in the docket. See Fed. R.App. P. 4(a)(7)(A) (defining entry of judgment for purposes of Rule 4(a)-if a separate document is required by Federal Rule of Civil Procedure 58(a)-as the "earlier of" when "the judgment or order is set forth on a separate document" or "150 *793 days have run from the entry in the civil docket").

Because the district court never set forth the judgment on a separate document and Mr. Lewis filed his notice of appeal before 150 days had run from the entry of the order on the civil docket, his appeal is timely. See Fed. R.App. P. 4(a)(2) ("A notice of appeal filed after the court announces a decision or order-but before the entry of the judgment or order-is treated as filed on the date of and after the entry."); id. 4(a)(7)(B) ("A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order."); Constien v. United States, 628 F.3d 1207, 1212 (10th Cir.2010) ("[U]nder Appellate Rule 4(a)(7)([B]), the appellant can always decide to waive the separate document requirement and choose to appeal prior to the running of the 150-day cap." (quotations omitted)). We therefore may consider Mr. Lewis's appeal.

B. Class Certification

The district court concluded Mr. Lewis could not represent a class under Federal Rule of Civil Procedure 23 because he was "pro se and cannot represent other individuals, since he is not a properly licensed attorney." ROA at 178; see also id. at 403 (incorporating explanation from its earlier order to deny Mr. Lewis's motion for Rule 23 Certification). Mr. Lewis asks us to reverse this decision.

"Whether the district court applied the correct legal standard in its decision to grant or deny class certification is reviewed de novo." Trevizo v. Adams, 455 F.3d 1155, 1160-61 (10th Cir.2006) (quotations omitted). "[W]hen the district court has applied the proper standard in deciding whether to certify a class, " however, "we may reverse that decision only for an abuse of discretion." Id. at 1161 (quotations omitted).

A court may not certify a class unless it determines "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). "When the court reviews the quality of the representation under Rule 23(a)(4), it will inquire not only into the character and quality of the named representative party, but also it will consider the quality and experience of the attorneys for the class." 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1769.1 (3d ed.2005) (footnote omitted). In Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320 (10th Cir.2000), we concluded that a "litigant may bring his own claims to federal court without counsel, but not the claims of others" because "the competence of a layman is clearly too limited to allow him to risk the rights of others.'" Id. at 1321 (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975)); see also 7A Wright & Miller, Federal Practice and Procedure: Civil § 1769.1 (citing cases for rule that "class representatives cannot appear pro se").

Here, because Mr. Lewis is proceeding pro se, we conclude the district court applied the proper legal standard and did not abuse its discretion in ruling he cannot adequately represent a class. We therefore affirm the district court's denial of Mr. Lewis's motion to certify.

C. Individual Claims

We now consider Mr. Lewis's individual claims. Because Mr. Lewis appeals from a dismissal of his complaint under ifp statute § 1915(e)(2)(B)(ii), we review his dismissal as we would a dismissal under Fed.R.Civ.P. 12(b)(6). See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.2007) ("We apply *794 the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.").

Our review is de novo. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.2012). To avoid dismissal, the "complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face, '" not merely possible or conceivable. Id . (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A plaintiff's use of "mere labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not suffice, " and the complaint's "factual allegations [must] plausibly suggest the defendant is liable." Id. at 1190-91 (quotations omitted).

Mr. Lewis advances several arguments on appeal regarding his individual claims. Like the district court, we read his complaint to allege (1) an equal protection violation; (2) denial of access to the courts; (3) unlawful retaliation; (4) unconstitutional policymaking by the attorneys at the NCAO; and (5) an unlawful NCDC policy barring inmate-to-inmate family correspondence. We also read Mr. Lewis's complaint to allege (6) several claims under the First and Fourteenth Amendments concerning his access to the law library and NCDC's 10-page limit on incoming mailed printed materials. FN7 We address these claims in turn.FN8

FN7. Unlike the district court, see supra at 790, we do not perceive Mr. Lewis's "general allegations about prisoner safety" and "snitch' paperwork, " ROA at 405, to form a freestanding claim. We instead read these allegations regarding NCDC's internal 20-page copy policy and its resulting "snitch" paperwork to support his argument that the "logical connection between [the NCDC's policy barring inmate-to-inmate correspondence] and the asserted goal [of safety] is so remote as to render the policy arbitrary and irrational.'" ROA at 283 (quoting Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); see also id. at 212, 233-34, 272 (making same argument with respect to NCDC's 10-page limit on incoming mailed printed materials).

FN8. Mr. Lewis alleges he filed multiple grievances regarding each of these claims and attached copies to his complaints. See ROA at 219, 232, 236, 263-64, 282. We do not discuss whether Mr. Lewis exhausted his administrative remedies, as required under the Prison Litigation and Reform Act, 42 U.S.C. § 1997e et seq., because exhaustion is an affirmative defense, not a pleading requirement. See Jones v. Bock, 549 U.S. 199, 212-17, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

1. Equal protection

Mr. Lewis's amended complaint alleges he has been denied equal protection because, as a federal inmate detainee housed at NCDC, he lacked access to federal legal materials whereas NCDC's state inmates had access to state legal materials. See ROA at 217, 222. The district court rejected this claim because Mr. Lewis is "not being treated differently; he is just not being provided additional legal materials that the state prisoners are also not receiving." Id. at 404. We affirm because even if Mr. Lewis was similarly situated to state prisoners and can show disparate impact, he has not alleged discriminatory purpose.

The Equal Protection Clause of the Fourteenth Amendment forbids states from "deny[ing] to any person within [their] jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In assessing an equal protection claim, we usually ask *795 two questions. "First, we ask whether the challenged state action intentionally discriminates between groups of persons." SECSYS, LLC v. Vigil, 666 F.3d 678, 685 (10th Cir.2012) (citing Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). This "requires that the decisionmaker selected or reaffirmed a particular course of action at least in part because of, ' not merely in spite of' the law's differential treatment of a particular class of persons." Id . (quotations and alterations omitted). "Second, and after an act of intentional discrimination against a particular group is identified either by presumption or evidence and inference, courts ask whether the state's intentional decision to discriminate can be justified by reference to some upright government purpose." Id. at 686.

Mr. Lewis's claim fails at the first step. His complaint does not allege that a distinction between state and federal inmates "appears on the face of" any NCDC policy or action regarding its law library materials. See id. at 685 ("When a distinction between groups of persons appears on the face of a state law or action, an intent to discriminate is presumed and no further examination of legislative purpose is required."). Because "the [policy] under review is generally applicable to all persons, no presumption of intentional discrimination arises; proof is required." Id . Mr. Lewis's complaint, however, fails to allege NCDC officials curated the law library's collection with discriminatory purpose towards federal detainees. Because "purposeful discrimination is an essential element of an equal protection claim, " Lewis v. City of Ft. Collins, 903 F.2d 752, 755 n. 1 (10th Cir.1990), Mr. Lewis's equal protection claim must fail. We therefore affirm the district court's dismissal of this claim.

2. Access to the courts

Mr. Lewis's amended complaint alleges he was deprived of access to the courts based on deficient legal materials or lack of assistance available at NCDC's law library. We read his complaint as alleging that these shortcomings made it so (1) he was unable to determine whether to plead guilty to a pending federal charge even though he was represented by counsel and was unable to assist his appointed counsel in preparing his defense on this charge; (2) he was unable to contest a pending, unrepresented, out-of-state case in Arapahoe, Colorado; and (3) he was unable to challenge the conditions of his confinement. See ROA at 227, 229-30, 251.

The district court rejected Mr. Lewis's argument that he was denied access to the courts as to both his pending federal case and his Colorado case, and did not address his remaining contentions. The court rejected Mr. Lewis's claim that NCDC's lack of federal legal materials denied him access to the courts because Mr. Lewis had "an appointed attorney in his federal criminal proceeding" and "cannot show that he has been prejudiced in pursuing his litigation" because he "pled guilty" and "was recently sentenced." ROA at 405, 407. As for Mr. Lewis's assertion that he lacked access to materials for a "traffic related matter in Arapahoe County, Colorado, " the district court concluded Mr. Lewis did in fact have access to that court because "he states that he filed a writ of habeas corpus with the court in Arapahoe County." Id. at 406. Moreover, the district court reasoned, Mr. Lewis's complaint failed to "provide any information on how a lack of federal legal materials denied him access to a state court in Colorado." Id.FN9

FN9. The district court did not consider Mr. Lewis's claim that he was unable to challenge his conditions of confinement.

*796 a. Legal background

Prisoners and pretrial detainees have a clearly established "constitutional right of access to the courts." Trujillo v. Williams, 465 F.3d 1210, 1226 (10th Cir.2006) (quotations omitted); see also Love v. Summit Cnty., 776 F.2d 908, 912-13 (10th Cir.1985) ("This plaintiff, a pretrial detainee, also has a constitutional right to adequate, effective and meaningful access to the courts to vindicate his fundamental constitutional rights.").

Although providing access to a law library is one means of effectuating the right of access to the courts, the Constitution does not guarantee prisoners "an abstract, freestanding right to a law library or legal assistance." Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). "[P]rison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id . (quotations omitted); see also Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.1996) ("[T]he constitutional obligation to provide inmates access to courts does not require states to give inmates unlimited access to a law library, and inmates do not have the right to select the method by which access will be provided." (citation omitted)). "It is well established that providing legal counsel is a constitutionally acceptable alternative to a prisoner's demand to access a law library." United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir.1999) (citing Casey, 518 U.S. at 350-51, 116 S.Ct. 2174).

"To state a claim for denial of such a right, [Mr. Lewis] must show that any denial or delay of access to the court prejudiced him in pursuing litigation." Trujillo, 465 F.3d at 1226 (quotations omitted); see also Casey, 518 U.S. at 351, 116 S.Ct. 2174 (requiring that a prisoner demonstrate "the alleged shortcomings in the library" actually hindered his or her "efforts to pursue a legal claim"). That is, Mr. Lewis must show that, by denying him access to the law library or materials, NCDC officials frustrated or impeded his ability to file a non-frivolous direct appeal from his conviction, a habeas corpus petition, or a civil rights claim pursuant to § 1983 "to vindicate basic constitutional rights." Casey, 518 U.S. at 351, 354-55, 116 S.Ct. 2174 (quotations omitted). "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355, 116 S.Ct. 2174.

b. Analysis

Mr. Lewis argues the district court erred in concluding he failed to state a claim based on lack of access to the courts. We disagree.

i. Mr. Lewis's federal criminal case

Mr. Lewis contends the lack of federal materials at NCDC hindered his ability to decide whether to accept the federal government's time-sensitive plea agreement and prevented him from assisting his counsel in his pending federal criminal case. See ROA at 253, 256, 260.

As noted above, "providing legal counsel is a constitutionally acceptable alternative to a prisoner's demand to access a law library." Taylor, 183 F.3d at 1204. That principle applies to Mr. Lewis's demand to obtain federal materials within a law library because he had appointed counsel in his federal criminal case. In his criminal case, Mr. Lewis's counsel assessed the *797 Fourth Amendment exclusionary rule's good-faith exception's applicability to Mr. Lewis's case. See Aplt. Br. at 15; ROA at 252-53. He advised Mr. Lewis to take a plea deal under which he would receive a 10-year sentence instead of a 20-year sentence in exchange for waiving his right to a suppression hearing. See id. Mr. Lewis followed this advice. See id. Moreover, although the Sixth Amendment provides a right to counsel or a right to proceed pro se, it does not provide a right to assist appointed counsel with legal research. Mr. Lewis therefore cannot state a claim related to his federal criminal case based on the lack of federal materials in the law library.FN10

FN10. To the extent Mr. Lewis argues counsel was ineffective, see Aplt. Br. at 15, we reject this claim for two reasons. First, a traditional claim of ineffective assistance is not cognizable under 42 U.S.C. § 1983 because his attorney is not a state actor. See Polk Cnty. v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ("[A] public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding."). Second, prevailing on such a claim would call into question the validity of his conviction, which is generally not permissible to do through a § 1983 action. See Edwards v. Balisok, 520 U.S. 641, 643, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) ("[A] state prisoner's claim for damages is not cognizable under 42 U.S.C. § 1983 if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, ' unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated." (quoting Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994))).

ii. Mr. Lewis's Colorado case

Mr. Lewis argues the lack of Colorado state law materials in the NCDC law library hindered his ability to contest a pending (and unrepresented) traffic charge in Arapahoe County, Colorado. ROA at 227, 229.

Mr. Lewis's amended complaint fails to plausibly allege an access to the courts claim on this score because it fails to demonstrate a lack of access or resulting prejudice. His amended complaint alleges that appointed counsel in his federal case was not obligated to help him with this unrelated matter and "never entertained" his request to do so. Id. at 229. Mr. Lewis nevertheless filed a writ of habeas corpus with the Arapahoe County courts on June 18, 2013, in what he terms a "feeble attempt to access the courts." ROA at 233. He did not receive a response. Id . Mr. Lewis's amended complaint further alleges his $10, 000 bond related to that pending charge increased to $20, 000 when he missed his June 25, 2013 court date and the bail bond agent did not receive proof of his incarceration in NCDC. Id . Mr. Lewis fails to allege, however, precisely how these consequences can be attributed to deficiencies in NCDC's legal facilities. He acknowledges he filed a writ of habeas corpus with the Arapahoe County courts regarding the Colorado charge before he was due to appear in court, and he fails to articulate how alleged deficiencies in NCDC's law library contributed either to the lack of response from the Colorado court or the increase in his bail bond.

As a result, his amended complaint fails to state an access to courts claim upon which relief may be granted.

iii. Mr. Lewis's civil rights case

Finally, Mr. Lewis asserts the deficiencies in the law library and the legal assistance program at NCDC hindered his ability to bring a civil rights challenge in this case to his conditions of confinement. ROA at 230, 259.

*798 His allegations are unclear, but in any event, he cannot show that he was prejudiced in pursuing his civil legal claims. Although the district court dismissed his first complaint, it did so without prejudice and expressly granted leave to amend. From his new detention facility in Platte County, Wyoming, Mr. Lewis filed a lengthy amended complaint that cites and discusses numerous federal legal authorities. See generally id. at 198-361. Whereas Mr. Lewis alleged he "could not litigate effectively" in NCDC because he "had no federal materials while he was in Natrona's facility, " he expressly alleged his new facility in Platte County provided "[t]he bare bone essentials" to "[l]itigate with meaning and effect." ROA at 258-59 (brackets omitted); see also id. at 259 ("This facility provides that (Platte County).").

Given that Mr. Lewis has failed to allege that any deficiency in federal materials or the legal assistance program at NCDC "prejudiced" his civil rights action, Trujillo, 465 F.3d at 1226 (quotations omitted), we conclude he fails to state a claim on this front.

* * *

Accordingly, Mr. Lewis's allegations in his amended complaint regarding his right of access to the courts fail to state a claim upon which relief may be granted. We affirm the district court's ruling on this claim.

3. Retaliation

In his amended complaint, Mr. Lewis alleges that an unknown deputy operating control tower number two at 10:00 p.m. on August 7, 2013, refused him entry to the law library (even though he was next on the list) in retaliation for Mr. Lewis's use of the administrative grievance process. See ROA at 235-36. The district court rejected this claim in only two sentences: "[Mr. Lewis] attempts to couch these claims as retaliation claims, but he fails to assert the injury from the alleged retaliation. [Mr. Lewis] also fails to state sufficient facts for a claim of retaliation." Id. at 406-07. On appeal, Mr. Lewis argues the district court erred in dismissing this claim. We agree.

a. Legal background

"[P]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998) (quotations omitted). To establish a First Amendment retaliation claim, a plaintiff must demonstrate three elements: "(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct." Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir.2007).

"[I]t is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role." Peterson, 149 F.3d at 1144; see also Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). "[A]n inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity." Peterson, 149 F.3d at 1144. Thus, we have determined that a prisoner claiming retaliation "must prove that but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." Id . "An inmate claiming retaliation*799 must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Id . (quoting and emphasizing Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.1990)).

b. Analysis

Here, Mr. Lewis's complaint alleges he was denied access to the law library in retaliation for exercising his First Amendment right to file administrative grievances with NCDC officials. See ROA at 240-41. Because Mr. Lewis alleges he filed numerous administrative grievances, he has adequately alleged the first element-that he was engaged in protected activity. See Williams v. Meese, 926 F.2d 994, 998 (10th Cir.1991) (reversing district court's dismissal of prisoner's claim that he was "denied particular job assignments or was transferred from one job to another in retaliation for filing administrative grievances").

Mr. Lewis also adequately alleges an adverse action-denial of access to the law library-that is sufficiently serious to "chill a person of ordinary firmness from continuing to engage in that activity." Shero, 510 F.3d at 1203. Although we have not decided this exact issue, we have concluded that confiscating an inmate's legal papers in retaliation for engaging in protected conduct could deter a person of "ordinary firmness" from engaging in that conduct. See Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir.1996) (reversing grant of summary judgment to defendants on inmate's claim that guards conducted harassing cell searches, seized legal materials, refused to provide inmate with hygiene items, and transferred inmate to segregation in retaliation for suit against prison officials); Green v. Johnson, 977 F.2d 1383, 1389-91 (10th Cir.1992) (holding that inmate's allegation that guards destroyed his legal materials in retaliation for his filing of suits and grievances stated a cognizable First Amendment claim); see also Zimmerman v. Tribble, 226 F.3d 568, 573-74 (7th Cir.2000) (reversing dismissal of claim that prison law librarian repeatedly denied prisoner access to the prison law library in retaliation for protected conduct).

Finally, Mr. Lewis satisfies the third element because the facts alleged in his amended complaint give rise to a reasonable inference that he would have been able to use the law library "but for" the deputy's alleged retaliatory motive. Mr. Lewis alleges he filed numerous administrative grievances during late July 2013 and early August 2013, including one on August 6, 2013. See ROA at 28, 30, 58-63, 86-90. According to Mr. Lewis, these grievances are completed on carbon paper so as to produce several copies. The white copy goes in the inmate's file, the yellow copy goes to the security lieutenant, the pink copy goes to the inmate along with officials' responses, and the gold copy is kept by the inmate. Id. at 240. "Upon lodging a request or grievance, " Mr. Lewis alleges, "it must be handed to the floor deputy, '" who gives the inmate the "gold copy" and retains the rest. Id. at 241. The forms (along with officials' responses) "are then taken to the [control] Tower and sit [there] until they are distributed accordingly." Id . Mr. Lewis alleges these forms "are usually read" by employees working in the tower, and "because these forms are read it caused retaliation" by the "Unknown Named deputy" working in the tower around 10 p.m. on August 7, 2013. Id.

To enter the law library, Mr. Lewis alleges inmates must "[b]uzz" one of two control towers from "intercom systems located in each individual cell []" and be "placed on the list" on a "first come first *800 serve basis." ROA at 238-39.FN11 Mr. Lewis alleges he successfully used this process on August 2, 2013, to enter the law library on August 4, 2013. Id. at 239. On August 5th and 6th, Mr. Lewis used this process again to try to enter the law library and was "confirmed next on the List." Id. at 240. Despite Mr. Lewis's status as next on the list to gain access to the library, the control tower deputy refused to grant him entry when he buzzed the tower on August 7, 2013. The deputy informed Mr. Lewis that he had an attorney and did not "need to go to the Law Library." Id. at 242. Shortly thereafter, the deputy called over the loud speaker in a portion of the jail asking another inmate if he wished to use the law library. See id. After that inmate replied "yes, " he "buzzed the Tower" and told the deputy to "let [Mr.] Lewis" and his cellmate go instead "because I am tired." Id . The deputy in the control tower refused, stating "there were others ahead of them on the list." Id.

FN11. As a result, inmates do not interact face-to-face with the deputies working in the towers and do not know their names.

Although the deputy's proffered reason for denying Mr. Lewis access was that Mr. Lewis had a lawyer and therefore did not need to use the library, the chronology of events alleged in the complaint-the timing of Mr. Lewis's grievances, the way grievance forms are processed through the tower, and that Mr. Lewis had been confirmed next on the list-plausibly support Mr. Lewis's contention that the deputy would not have refused him access "but for" his protected activity. See Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir.2010) (reversing district court's dismissal of prisoner's retaliatory transfer claim where the complaint alleged "that Defendants were aware of his protected activity, that his protected activity complained of Defendants' actions, and that the transfer was in close temporal proximity to the protected activity"). "The[se] allegations may be improbable, but they are not implausible." Id.

Accordingly, Mr. Lewis's amended complaint states a claim of retaliation upon which relief may be granted. The district court erred in concluding otherwise, and we therefore reverse on this claim.

4. Claim against unknown NCAO attorneys

In his amended complaint, Mr. Lewis alleges 15 unknown NCAO attorneys conspired with Lieutenant Clark to create and maintain constitutionally inadequate policies. See ROA at 261-63, 265. He alleges these attorneys "knew what they were doing" when they "deemed NCDC Law Library adequate" in the face of established laws to the contrary. Id . The district court rejected this claim because it was "not a proper claim." ROA at 407. We agree.

Mr. Lewis's basis to recover against these attorneys is not clear. Because the attorneys did not directly participate in any violations alleged by Mr. Lewis and merely advised NCDC about the constitutionality of its policies, we read this claim to be one of supervisory liability. See Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir.2010) ("[Section] 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy" that deprives the plaintiff "of any rights secured by the Constitution." (quotations omitted)).

"Section 1983, however, does not authorize liability under a theory of respondeat *801 superior." Estate of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir.2014) (quotations omitted). "Rather, a plaintiff must satisfy three elements to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities: (1) personal involvement; (2) causation; and (3) state of mind, " which "can be no less than the mens rea required of the subordinates to commit the underlying constitutional violation." Id . (quotations omitted).

Mr. Lewis's allegations are nearly incomprehensible, much less plausible. Even assuming Mr. Lewis has plausibly alleged the attorneys' personal involvement by advising Lieutenant Clark about the constitutionality of the policies, he fails to satisfy the causation and state of mind elements.

To satisfy causation, Mr. Lewis must allege the defendants' actions "caused the constitutional violation by setting in motion a series of events that the defendant[s] knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights." Id . (quotations omitted). He has failed to raise allegations to that effect.

As to state of mind, he does not advance any factual allegations to support his conclusory statements that the unknown attorneys possessed a culpable state of mind. See Ashcroft v. Iqbal, 556 U.S. 662, 683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("[R]espondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8.").

Mr. Lewis's complaint therefore fails to state a claim for supervisory liability upon which relief may be granted. We affirm the district court's ruling on this claim.

5. Inmate-to-inmate correspondence restriction

Mr. Lewis's amended complaint alleges NCDC's absolute bar on inmate-to-inmate correspondence is unconstitutional because it does not allow an exception for incarcerated family members to communicate and is not rationally related to a legitimate penological interest. See ROA at 280, 283. He alleges that 45 unknown deputies working in the NCDC mailroom violated his First Amendment rights to freedom of speech and association, as well as his Fourteenth Amendment equal protection rights, when they refused to deliver (pursuant to this policy) correspondence from his son, who is incarcerated elsewhere. ROA at 271-73, 276, 278.FN12

FN12. Mr. Lewis acknowledges that "additional facts" adduced through discovery will "remov[e] a substantial amount of Defendants" from this claim and "plac[e] the rightful responsible name on face." ROA at 273-74.

The district court rejected this claim after concluding Mr. Lewis's requested remedies were unavailable under the PLRA and due to his recent transfer to a new facility with a different correspondence policy. See ROA at 407-08. As to Mr. Lewis's request for "monetary damages, including punitive damages, " the district court concluded, "those damages are not available, " id. at 408, under the PLRA, which requires "a prior showing of physical injury, " id. (quoting 42 U.S.C. § 1997e(e)). As to Mr. Lewis's request for declaratory and injunctive relief, Mr. Lewis "is no longer housed at NCDC" and those claims were therefore "moot." Id .; see also Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.1997) (collecting cases finding prisoner's claims for declaratory and injunctive relief moot in light of release from confinement).

*802 On appeal, Mr. Lewis argues the district court erred. We agree in part. Although the district court correctly observed that Mr. Lewis may not obtain compensatory damages or prospective relief on this claim, it did not consider his claim for nominal damages and failed to recognize that punitive damages may be available in cases without physical injury.

Unlike Mr. Lewis's request for prospective relief, FN13 his request for damages was not mooted by his transfer to a new facility. See O'Connor v. City & Cnty. of Denver, 894 F.2d 1210, 1216 (10th Cir.1990) ("[B]y definition claims for past damages cannot be deemed moot. There is no question that the nominal damages sought in this case were past damages not affected by any changes in the Code." (quotations omitted)); see also Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir.1986) (observing that although the fact that the prisoner plaintiff was no longer incarcerated at prison with the allegedly unconstitutional practice "may well moot [his] claims for declaratory and injunctive relief, " his request for punitive damages "were not mooted" by the transfer).

FN13. Mr. Lewis contends his transfer should not moot his claims for prospective relief because otherwise the "continual violations" at NCDC will "perpetually evade and escape Judicial review." Aplt. Br. at 33. We disagree.

"[O]utside the class-action context, " we have said this "narrow" exception to the mootness doctrine requires a showing of two elements: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.'" Jordan v. Sosa, 654 F.3d 1012, 1034-35 (10th Cir.2011) (quoting and altering Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam)).

Because Mr. Lewis fails to demonstrate a reasonable expectation that he will be housed in NCDC again now that he is in federal custody, we cannot exempt his claims for prospective relief from a mootness determination. Nor does Mr. Lewis plausibly allege that NCDC "officials' transfer decisions were in any way a subterfuge" deserving of the "voluntary cessation" exception to the mootness doctrine. Id. at 1037.

And although § 1997e(e) bars compensatory damages in the absence of physical injury, it does not bar nominal or punitive damages in such cases. See Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir.2001) ("[W]e now hold that section 1997e(e) does not bar recovery of nominal damages for violations of prisoners' rights."); id. at 881 ("We believe that the salient fact is that Congress simply did not choose to provide a restriction [in § 1997e(e)] on punitive damages."). In Mr. Lewis's prayer for relief, he expressly requested both nominal and punitive damages. ROA at 353, 357-58.

Mr. Lewis makes several arguments for why this policy is not rationally related to a legitimate penological interest. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."). We express no view on this question, FN14 and we remand to the district*803 court to resolve this claim on the merits in the first instance. See Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir.1990) (remanding retaliatory transfer claim because the district court "did not engage in the analysis set forth in Turner, " prison officials had "articulated no reasons for the transfer" of the plaintiff, and it was "by no means apparent that [the plaintiff's] claim [was] frivolous").

FN14. In Turner, after engaging in a four-part balancing test, the Supreme Court concluded Missouri's general prohibition on inmate-to-inmate correspondence "does not unconstitutionally abridge the First Amendment rights of prison inmates." 482 U.S. at 93, 107 S.Ct. 2254. The Turner Court did not, however, consider how the rights of related prisoners might alter that calculus because the regulation at issue "permit[ted] such correspondence with immediate family members who are inmates in other correctional institutions.'" Id. at 81, 107 S.Ct. 2254 (quoting regulation); see also Gee, 627 F.3d at 1188 ("[A]ccess is essential to families and friends of prisoners who seek to sustain relationships with them." (quoting and altering Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989))).

6. Additional claims

Mr. Lewis's amended complaint alleges First and Fourteenth Amendment claims concerning his access to the law library and the jail's 10-page limit on incoming mailed printed materials. See ROA at 218, 288-93. He argues these restrictions violated his right to free speech and free expression and that NCDC's failure to abide by its own regulations deprived him of both a property and liberty interest without adequate process. See Aplt. Br. at 17-19. The district court recognized some of Mr. Lewis's allegations regarding the 10-page limit but concluded he "does not assert what fundamental right is violated by this prohibition." ROA at 405-06. We disagree.

Mr. Lewis's amended complaint alleges the lack of "written or posted" notice about the jail's 10-page limit deprived him of a "property interest" without "[d]ue process." Id. at 218; see also id. at 212, 288. The complaint further alleges the jail violated his rights to "free speech/free association" when it returned a letter and "federal legal research materials" sent from his wife because of this policy. Id. at 211-12, 288. Finally, his complaint asserts he had a "[p]rotected liberty interest" in the law library because of the "mandatory language" in the inmate handbook. Id. at 218.

Because the district court did not address these claims, we leave them for the court on remand. See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir.2005) ("Where an issue has been raised, but not ruled on, proper judicial administration generally favors remand for the district court to examine the issue initially.").

III. CONCLUSION

In sum, we affirm the district court's denial of Mr. Lewis's ex parte motion to certify a class under Federal Rule of Civil Procedure 23.

As to Mr. Lewis's individual claims, we affirm the district court's dismissal of his equal protection, access to courts, and supervisory liability claims as to Lieutenant Clark and the NCAO attorneys. We reverse the district court's dismissal of his retaliation claim as to the "Unknown Named Deputy" working in the control tower on August 7, 2013. We affirm in part and reverse in part the district court's dismissal of his inmate-to-inmate correspondence claims as to Lieutenant Clark and the "45 Unknown Named Deputies" working in the mail room. We remand Mr. Lewis's remaining claims under the First and Fourteenth Amendments regarding his access to the law library and NCDC's 10-page limit on incoming mailed printed materials.FN15

FN15. Mr. Lewis sued the defendants in their official and individual capacities. We leave to the district court on remand whether the official capacity claims survive municipal liability concerns or, to the extent the remaining defendants are state employees, Eleventh Amendment concerns. In dismissing Mr. Lewis's complaint, the district court ruled that his motion for appointment of counsel was moot. Mr. Lewis challenges that decision on appeal. We decline to address this issue, although Mr. Lewis may renew the motion in the district court on remand.

*804 Finally, we grant Mr. Lewis's motion to proceed in forma pauperis and remind him that he must continue making partial payments until the filing fees he owes are paid in full.


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