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Dunlap v. Raemisch

United States District Court, D. Colorado

February 9, 2015

NATHAN JERARD DUNLAP, Plaintiff,
v.
RICK RAEMISCH, in his individual and official capacities as Executive Director of the Colorado Department of Corrections, MARK FLOWERS, in his individual and official capacities as Director of Prisons of the Colorado Department of Corrections, TONY CAROCHI, in his individual and official capacities as Director of Prisons of the Colorado Department of Corrections, LOU ARCHULETA, in his individual and official capacities as Director of Prisons of the Colorado Department of Corrections, KEVIN MILYARD, in his individual and official capacities as Deputy Director of Prisons of the Colorado Department of Corrections, JAMES FALK, in his individual and official capacities as Warden of the Sterling Correctional Facility, LARRY REID, in his individual and official capacities as Deputy Director of Prisons of the Colorado Department of Corrections, DONNA SIMS, in her individual and official capacities as Review Committee Member for the Colorado Department of Corrections, J[EREMIAH] CONE, in his individual and official capacities as Approving Housing Supervisor of the Sterling Correctional Facility, JOHN CRUSSELL, in his individual and official capacities as Review Committee Member for the Colorado Department of Corrections, MICHELLE NYCZ-HALLIGAN, in her individual and official capacities as Review Committee member for the Colorado Department of Corrections, DAVE SCHERBARTH, in his individual and official capacities as Appointing Authority for the Colorado Department of Corrections, JEFF PE[T]ERSON, in his individual and official capacities as Review Committee Member for the Colorado Department of Corrections, [MICHELE] WINGERT, in her individual and official capacities as Review Committee Member for the Colorado Department of Corrections, [SCOTT] STURGEON, in his individual and official capacities as Review Committee Member of the Colorado Department of Corrections, and RYAN LONG, in his individual and official capacities as Review Committee Member for the Colorado Department of Corrections, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, Magistrate Judge.

This civil action comes before the court on: (1) the Motion to Dismiss filed by Defendants Raemisch, Carochi, Archuleta, Falk, Reid, Sims, Cone, Crussell, Nycz-Halligan, Scherbarth, Petersen, Wingert, Sturgeon, and Long on March 13, 2014 (Doc. # 37), (2) the Motion to Dismiss filed by Defendant Flowers on March 17, 2014 (Doc. # 40), and (3) the Motion to Dismiss filed by Defendant Milyard on April 16, 2014 (Doc. # 47). Pursuant to the Order Referring Case dated January 15, 2014 (Doc. # 14) and the memoranda dated March 14, 2014 (Doc. # 38), March 18, 2014 (Doc. # 41), and April 17, 2014 (Doc. # 48), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Mr. Dunlap's Responses (filed April 11, 2014 (Doc. # 46) and April 29, 2014 (Doc. # 50)), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Plaintiff, Nathan Dunlap, was convicted and sentenced to death in 1996 for committing four murders in 1993 in Aurora, Colorado. For additional crimes, he was also sentenced to confinement in the Colorado Department of Corrections ("CDOC") for consecutive terms totaling 113 years. See People v. Dunlap, 975 P.2d 723, 734-35 (Colo. 1999) (ruling on direct appeal of death sentence) ( en banc ). Mr. Dunlap filed his initial Prisoner Complaint on or about November 14, 2013. ( See Doc. # 3). At the court's direction, he filed his Amended Prisoner Complaint ("AC") on December 24, 2013. ( See Docs. # 5, # 8, # 9).

Mr. Dunlap brings his AC pursuant to Title 42 U.S.C. §1983, which creates a cause of action where a "person... under color of any statute, ordinance, regulation, custom or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person... to the deprivation of any rights, privileges or immunities secured by the Constitution." ( See Doc. # 9 at 8 of 30). He alleges one claim for relief for violation of his Fourteenth Amendment right to due process. ( See id. at 19 of 30).

Mr. Dunlap alleges that because the CDOC does not have a "death row, " he is confined in administrative segregation ("AdSeg"). (See Doc. # 9 at 8 of 30). The Privilege Level Program ("PLP"), is "[a]n incentive based program based on behavior and program participation consisting of levels I through IV while in Administrative Segregation." (See CDOC Administrative Regulation ("AR") No. 650-03 III. T.). Level I has the most restrictive conditions, and each successive level offers the inmate more privileges. "Offenders with a death penalty sentence will be assigned Administrative Segregation status and will enter administrative segregation status at Level II." (See AR 650-03 IV. A.1. b.).[1] Mr. Dunlap attained Level III of the QLLP, later the PLP, on December 4, 2002.[2] (See Doc. # 9 at 18 of 30). He alleges that he "has never been allowed to progress through the PLP past level 3" or receive most of the privileges available on the PLP levels that are higher than 3...." ( See id. ). He alleges that every review he has received since May 2012 has been "perfunctory, repetitive, and nothing more than a sham or pretext" that fails "to provide any meaningful review process that helps [him] progress through the PLP." ( See Doc. # 9 at 18-19 of 30). Mr. Dunlap seeks declaratory and injunctive relief in the nature of "a meaningful review of his continued placement in extreme conditions that result in an atypical and significant hardship." ( See Doc. # 9 at 23 of 30). He also seeks nominal damages, attorney fees, and costs. ( See id. ).

II. Standard of Review

Defendants move to dismiss the AC pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted and Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.[3] To withstand a motion to dismiss under Rule 12(b)(6), a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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. Twombly, 550 U.S. at 556.

Because Mr. Dunlap appears 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). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").

III. Analysis

A. Statute of Limitations

Before June 13, 2011, Mr. Dunlap he was confined in AdSeg at the Colorado State Penitentiary ("CSP") of the CDOC. On June 13, 2011, he was transferred to AdSeg at the Sterling Correctional Facility ("SCF"). Defendants argue that Mr. Dunlap's claim as it relates to his confinement in AdSeg at CSP prior to June 13, 2011 is barred by the statute of limitations. The statute of limitations applicable to claims brought pursuant to § 1983 is two years. See Colo. Rev. Stat. § 13-80-102(g) (establishing a two-year limitation period for "all actions upon liability created by a federal statute where no period of limitation is provided in said federal statute" and for "all other actions of every kind for which no other period of limitation is provided"); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993) (applying Colo. Rev. Stat. § 13-80-102 to § 1983 claim). "Section 1983 claims accrue, for the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action." Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). See also Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994) ("The statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of injury which is the basis of his action.") The portion of Mr. Dunlap's claim that arises from events that he alleges occurred prior to June 13, 2011 appears to be barred by the two-year statute of limitations. Since the filing of the Motions, Mr. Dunlap has clarified that he is not asserting "any claim relating to his confinement while at" the CSP, thus rendering moot Defendants' statute of limitations argument.

B. Due Process Claim

Mr. Dunlap alleges deprivation of his liberty interest without due process in violation of the Fourteenth Amendment based on his continued placement in AdSeg without "meaningful review." ( See Doc. # 9 at 19 of 30). He does not challenge his placement in AdSeg or the conditions of confinement in AdSeg. ( See Doc. # 9 at 9 of 30, ¶¶ 8, 9). Mr. Dunlap challenges "the denial of his right to meaningful reviews that would enable him to progress... to incrementally better conditions within adseg." (See Doc. # 9 at 9, 17-10 of 30).

The necessary predicate to a due process claim is a deprivation of a protected interest. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) ("The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property' or liberty.'") (citing U.S. Const., amend. XIV ("nor shall any State deprive any person of life, liberty, or property, without due process of law")). Prisoners do not have a constitutionally recognized liberty interest in their security classification or placement. See Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration"); Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) ("classification of a plaintiff into segregation does not involve deprivation of a liberty interest independently protected by the Due Process Clause") (quotation and alterations omitted).

However, in Sandin v. Conner, the Supreme Court held that administrative segregation may implicate a liberty interest protected by the Due Process Clause if it "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " 515 U.S. at 484, or if it "will inevitably affect the duration of his sentence." Id. at 487. See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) ("the Supreme Court held that a deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'") (quoting Sandin, 515 U.S. at 484). "[T]he touchstone of the inquiry... is not the language of regulations regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life." Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (internal quotation marks and citation omitted). Whether confinement "conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination...." Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S. at 485-87).

The Tenth Circuit has identified relevant factors to consider when determining whether placement in administrative segregation creates a liberty interest: (1) whether "the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) [whether] the conditions of placement are extreme; (3) [whether] the placement increases the duration of confinement...; and (4) [whether] the placement is indeterminate." Estate of DiMarco v. Wyoming Dept. of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007). These factors are not necessarily dispositive. "[T]he proper approach is a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012). "[A]ny assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." DiMarco, 473 F.3d at 1342 (citation omitted).

First, the court may assume that Mr. Dunlap's confinement in AdSeg at the SCF relates to and furthers a legitimate penological interest. See Rezaq v. Nalley, 677 F.3d 1001, 1014 (10th Cir. 2012) ("This court has upheld an inmate's placement in segregation, even for an extended period of time, for safety reasons.") (citing Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007) (deferring to Wyoming prison's determination that "DiMarco might be a risk if introduced to the general population of the prison")); Scheanette v. Riggins, No. Civ.A. 9:05CV34, 2006 WL 722212, at * 10 (March 15, 2006) ("inmates convicted of capital murder represent a significant risk to the security of the institution, and the segregation of such individuals, for the protection of staff, other inmates, and themselves, is reasonably related to a legitimate penological purpose").[4]

Second, the court considers whether the conditions of Mr. Dunlap's confinement are extreme. The PLP has five "Privilege Levels, " denominated I, II, IlI, IV A, and IV B. ( See AR 650-03 IV.H. (Doc. # 37-1 at 8 of 25)). Level II is the "initial entry level placement for all offenders into administrative segregation." ( See AR 650-03 IV.H.2. (Doc. # 37-1 at 9-10 of 25)). Level III, at which Mr. Dunlap has been classified since 2002, "is for offenders who have demonstrated appropriate behavioral and level compliance, demonstrated proper interaction with staff and other offenders and maintained suitable cell compliance." ( See AR 650-03 IV.H.3. (Doc. # 37-1 at 10-11 of 25)). Level IV A, also called "Cognitive Programming, " is designed as a transition level between administrative segregation and general population. ( See AR 650-03 IV.H.4. (Doc. # 37-1 at 11-12 of 25). Level IV B is for offenders who have completed the first three levels but who continue to pose a substantial security risk if they were returned to general population. ( See AR 650-03 IV.H.5. (Doc. # 37-1 at 12-13 of 25)). Progress through the Privilege Levels is estimated "typically" to take a minimum of nine months. ( See AR 650-03 IV.G.1. (Doc. # 37-1 at 7 of 25)).

At Level III, Mr. Dunlap is allowed certain privileges. ( See AR 650-03 IV.H.3.d. (Doc. # 37-1 at 10-11 of 25)). He alleges that "death sentenced prisoners can have the same canteen privileges as those that are available to prisoners" at Level IV.B. ( See Doc. # 9 at 15, 29 of 30). Mr. Dunlap alleges that his cell "is approximately 80 square feet of floor space, " that he "is confined there for about 23 to 24 hours per day, " and that he eats all meals alone in the cell. ( See Doc. # 9 at 10-11 of 30). His cell has "two windows exposed to the outside that are approximately 38 inches wide and six inches tall." ( See Doc. # 9 at 10 of 30). The lights are dimmed between 10:00 p.m. and 6:00 a.m.. ( See Doc. # 9 at 10 of 30). He "is allowed one hour a day five days a week, out of the cell he resides in to be used to spend time in a recreation area by himself" and "[h]e is allowed to shower on the same days he is allowed to use the recreation area." ( See Doc. # 9 at 11 of 30).

The AC does not state facts equating to the sort of extreme conditions where courts have found the test of Sandin met. In Rezaq, the Tenth Circuit panel concluded that conditions at the federal supermax facility in Florence, Colorado (ADX) were not so extreme as to create a liberty interest. 677 F.3d at 1014-15. While the conditions there were harsh, including 23 hours a day in a small cell and all meals alone in the cell, inmates had "the opportunity for outdoor recreation... alone in fenced-in areas slightly larger than their cells, " "television that aired black-and-white educational and religious programming, " and "were permitted five no contact' social visits and two fifteen-minute phone calls per month." Id. at 1014-15. The court concluded that the "conditions at ADX are comparable to those routinely imposed in the administrative segregation setting" and "are not extreme as a matter of law." Rezaq, 677 F.3d at 1015 ("The conditions at ADX, like those at the Ohio supermax prison in Wilkinson, do not, in and of themselves, give rise to a liberty interest because they are substantially similar to conditions experienced in any solitary confinement setting.") (citing Wilkinson v. Austin, 545 U.S. 209, 224 (2005) ("Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities....").

Shortly after Rezaq, the Tenth Circuit determined that a prisoner's due process rights were not violated by his placement in administrative segregation in the Kansas Department of Corrections. Stallings v. Werholtz, 492 F.Appx. 841, 845-46 (10th Cir. July 6, 2012). The court decided that conditions were not extreme where the inmate was confined in a seventy square foot cell twenty-three hours a day, had limited time outside his cell each week and social visits were conducted via videoconferencing. Id. More recently, the Tenth Circuit determined that conditions in long-term administrative segregation in the Wyoming Department of Corrections are not sufficiently extreme to create a liberty interest. McAdams v. Wyoming Department of Corrections, 561 F.Appx. 718, 721-22 (10th Cir. April 9, 2014). "The conditions of LSAT are not pleasant." Id. "McAdams is confined to his cell for twenty-three hours a day; he is limited to one hour of recreation five days a week and three showers a week; the property he is allowed to keep in his cell is restricted; his visits are non-contact; and the lights are on twenty-four hours a day." McAdams, 561 F.Appx. at 721-22. "But these conditions are not extreme." Id. (citing Rezaq, 677 F.3d at 1014-15). See also Denson v. Maifeld, No. 09-cv-02087-WYD-KLM, 2012 WL 4356216, at **3, 8 (D. Colo. Sept. 24, 2012) (conditions did not support a finding of a protected liberty interest where plaintiff was placed in a cell approximately eight feet by ten feet, to which he was confined for twenty-three hours per day, with only one hour allotted for exercise five days a week, the lights in his cell remained on for twenty-four hours per day, he was afforded limited contact with other inmates and prison personnel, and administrative segregation had no definite timeline for release). The court concludes that, as a matter of law, the conditions alleged by Mr. Dunlap are not sufficiently extreme to implicate a liberty interest.

As for the third DiMarco factor, there is no allegation that serving time in AdSeg will lengthen Mr. Dunlap's period of confinement. The first, second, and third DiMarco factors thus weigh against the finding of a liberty interest.

The fourth DiMarco factor addresses whether placement in administrative segregation was indefinite. Mr. Dunlap alleges that he is being denied his right to a meaningful periodic review of his status. He alleges that he has been at Level III for over twelve years and "has never been allowed to progress...." (See Doc. # 9 at 18 of 30). He alleges that the review process is a "sham or pretext" that allows prison officials to keep him confined without progression indefinitely. ( See id. ).

"[A]dministrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates." Toevs v. Reid, 685 F.3d 903, 912 (10th Cir. 2012) (internal quotation marks and citation omitted). "[T]he review must be meaningful; it cannot be a sham or pretext." Id. "[A] meaningful' review for a prisoner in a behavior-modification program is one that evaluates the prisoner's current circumstances and future prospects, and, considering the reason(s) for his confinement to the program, determines whether that placement remains warranted." Toevs, 685 F.3d 903, 912. "In the context of a stratified incentive program such as the [PLP], the review would consider whether the prisoner is eligible to move to the next level." Id. "[T]he review should provide a statement of reasons, which will often serve as a guide for future behavior ( i.e., by giving the prisoner some idea of how he might progress toward a more favorable placement)." Id. In Toevs, the court held that the inmate had not received meaningful reviews. 685 F.3d at 914-15. For example, he was not given meaningful information as to why he was being held at a certain level. Id.

The CDOC's Administrative Regulations provide that "Administrative Segregation Status is designed to be a progressive management process that includes distinct levels (I, II, III, IV A and I V B)...." ( See AR 650-03 IV.G.1. (Doc. # 37-1 at 7 of 25)). "Offenders are afforded the opportunity to progress through privilege levels...." Id. "Some offenders may continue placement on administrative segregation status if indicated by behavior or risk. Progression to general population is dependent on Appointing Authority/Deputy Director/Director Reviews." Id. "Offenders with a death penalty sentence may progress through the privilege level system but will continue to be housed in a manner that is consistent with their continued risk and threat to the department." ( See AR 650-03 IV.G.3. (Doc. # 37-1 at 7-8 of 25)). "The Director of Prisons will approve the management plan for these offenders." Id.

The duration of Mr. Dunlap's placement at Level III AdSeg without any indication of a possibility to progress might be equivalent to indefinite placement. Mr. Dunlap alleges that he did not receive meaningful reviews and the record at this stage does not indicate that he received meaningful reviews. Considering the totality of the circumstances, as Rezaq instructs, the court concludes that based upon the indefiniteness of Mr. Dunlap's confinement in AdSeg, he may state a liberty interest worthy of constitutional protection in progressing to a less restrictive level.

The court acknowledges Defendants' argument that the Toevs opinion does not apply to Mr. Dunlap because the "opinion does not address situations such as placing an inmate in administrative segregation because his conviction is for raping a child, because he is a former law enforcement officer, or because he has raped or murdered other inmates and therefore presents a risk to the safety of the institution." 685 F.3d at 912 n. 8. See also Payne v. Friel, 919 F.Supp.2d 1185, 1200 n. 7 (D. Utah 2013) ("Because Plaintiff is not in any type of behavior-modification program, but is being kept in ad-seg exclusively for security reasons, the Toevs standard is not applicable here."); Prieto v. Clarke, No. 1:12cv1199 (LMB/IDD), 2013 WL 6019215, at * 11 (E.D. Va. Nov. 12, 2013) ("defendants could provide plaintiff with an individualized classification determination using procedures that are the same or substantially similar to the procedures used for all non-capital offenders" in order to comport with minimal due process requirements or could vary the basic conditions of confinement on death row, if only slightly, such that confinement there would no longer impose an atypical and significant hardship on plaintiff."). The present record before the court does not indicate whether security reasons prevent Mr. Dunlap from progressing to a less restrictive level in AdSeg.

Defendants' arguments would be better raised on the sort of factual record that is prepared for summary judgment motions. The court cannot find on the basis of the allegations in the AC and this record that Mr. Dunlap will inevitably fail to show he has a liberty interest or to state a plausible claim.

Accordingly, IT IS RECOMMENDED that the Motion to Dismiss filed by Defendants Raemisch, Carochi, Archuleta, Falk, Reid, Sims, Cone, Crussell, Nycz-Halligan, Scherbarth, Petersen, Wingert, Sturgeon, and Long on March 13, 2014 (Doc. # 37), the Motion to Dismiss filed by Defendant Flowers on March 17, 2014 (Doc. # 40), and the Motion to Dismiss filed by Defendant Milyard on April 16, 2014 (Doc. # 47) be denied.

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"); One Parcel of Real Property, 73 F.3d at 1059-60 (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); 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, plaintiff's 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).

Attorneys and Law Firms

Dale Devon Scheanette, Livingston, TX, pro se.

Julia Hamill Murray, Texas Attorney General, Austin, TX, for Office of the Attorney General.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

CLARK, J.

*1 The Plaintiff Dale Scheanette, proceeding pro se, filed this lawsuit complaining of alleged violations of his constitutional rights. This Court ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

Scheanette, a Death Row inmate, complained primarily about the taking of a DNA sample on October 24, 2004. He also raised complaints about the grievance procedures, alleged violations of the Americans with Disabilities Act, an assertion that the Texas prison administration was violating the Racketeer Influenced and Corrupt Organizations Act, and discrimination in various forms against inmates on Death Row.

The Magistrate Judge ordered the prison to furnish relevant records pursuant to Cay v. Estelle, 789 F.2d 318, 321 (5th Cir.1986) and Parker v. Carpenter, 978 F.2d 190, 191-192 and n. 2 (5th Cir.1992). Scheanette was provided with a copy of these records and allowed to file a response, which he did.

After review of the records, the Magistrate Judge issued a Report on December 22, 2005, recommending that Scheanette's claims be dismissed with prejudice as frivolous. Scheanette filed objections to this Report on January 3, 2006.

These objections relate primarily to Scheanette's complaints about the taking of the DNA sample. He complains that the Step Two grievance response is "false, " the physician's affidavit is false and should form the basis for prosecution, Texas law requires blood samples to be taken in a sanitary place, he had already given a DNA sample, the physician's theories have not been subjected to scientific scrutiny, he has made a "strong prima facie case" of discrimination, he has been denied the benefits of services and programs under the ADA, the Takings Clause requires compensation for the taking of property, he has a federal claim for assault as well as excessive use of force in the taking of the blood sample, and the sanitation procedures used were improper and violated his right to human dignity. None of these objections have any merit.

The Court has conducted a careful de novo review of the pleadings, papers on file in this cause, including the Report provided by the prison officials and Scheanette's response thereto, as well as the Report of the Magistrate Judge and the objections thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff's objections are without merit. It is accordingly

ORDERED that the Plaintiff's objections are overruled and the Report of the Magistrate Judge Is ADOPTED as the opinion of the District Court. It is further

ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice as frivolous. It is further

ORDERED that the Court hereby declines to exercise supplemental jurisdiction on any state law claims which Scheanette may have, and that the statute of limitations on any such claims is hereby TOLLED from the date the lawsuit was originally filed until thirty days after the final judgment dismissing the action is entered on the docket. 28 U.S.C. § 1367(d). Finally, it is

*2 ORDERED that any and all motions which may be pending in this action are hereby DENIED.

So ORDERED.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

McKEE, Magistrate J.

The Plaintiff Dale Scheanette, a Death Row inmate of the Texas Department of Criminal Justice, Institutional Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged denials of his constitutional rights. The lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

In his complaint, Scheanette says that on October 24, 2004, he was awakened and removed from his cell by two officers. Scheanette asked where they were going and was told that they were going to the "DNA lab." Scheanette asked if this was for the Texas Department of Public Safety and was told yes.

Scheanette states that he was taken to a section of the pod A recreation room were he was greeted by Nurse Riggins. He asked her who the test was for and she said Austin. Scheanette informed her that he already had given a sample for the "CODIS" database and so he did not have to give another one. Nurse Riggins said that he had to give another one or he would receive a disciplinary case, so he complied with the order.

Scheanette states that Nurse Riggins cleaned his arm, but did not clean the needle before she put it in his arm. She then told him to sign and thumb-print the chain of custody form, and he asked why. She replied that it was to prove that it was him and that he gave the sample. Scheanette asked what would happen if he refused and was again told that he would receive a major case. Scheanette then complied with this instruction. When he left, Nurse Riggins only gave him one small piece of tape and gauze for his arm. He then asked for her name, and she wrote it down for him, smiled, and said "I'm Nurse Riggins, everyone knows me."

When he got back to his cell, he saw that the guards took his neighbor out. He asked his neighbor where they had taken his blood sample, and the neighbor said that it was "the same place you went, " the recreation room. Another inmate told him that everyone's sample had been taken in the same place, commenting that "they treat us like animals."

As a result, Scheanette says, he began to worry about his blood sample having been taken in the open air. He says that he has a degree in "animal science" so he knew that he could get sick, and he could not go back to sleep. The next day, Scheanette says that he saw a rash on his arm where the sample had been taken, and he began to worry that he had contracted a staph infection. Scheanette filed a grievance against Nurse Riggins, but the warden delayed in responding, and Scheanette filed another one. The response to his grievance was that the nurse's actions were proper and that no further action was warranted. He then filed a step two, but says that "his concerns were not addressed."

*3 Scheanette then detours into a complaint about the grievance procedures, saying that he filed his Step Two grievance with the Step One attached, according to the rules, but it came back with the same response he had received on the Step One, and a notice that his Step One grievance had never been received. However, the Step One he had submitted was still attached to the Step Two form. Scheanette then reiterates that he wanted to refuse, because the taking of his blood under those conditions was a violation of the health code as well as his constitutional rights, but he could not.

Scheanette acknowledges that TDCJ-CID Director Douglas Dretke was not personally involved in his claims, but says that Attorney General Greg Abbott and his staff are committing mail fraud and wire fraud by arguing that there is no retaliation against inmates when in fact there is. He says that the failure to implement a "valid grievance procedure" has caused him harm because it causes the prison to "not take the courts seriously."

Scheanette provides a litany of rights which he says were violated by Nurse Riggins, including the right to be free from unreasonable search and seizure and violations of due process, freedom of speech, the right not to speak, the right to be free from cruel and unusual punishment, the right to be free from self-incrimination, conspiracy, and the state law claims of intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, violation of federal wiretap statutes, and false imprisonment (in the recreation room). Scheanette also claims that as a Death Row inmate, he falls under the purview of the Americans with Disabilities Act because he is socially dysfunctional and non-rehabilitatable.

Scheanette asserts that he has been the victim of discrimination under the ADA because the prison does not provide adequate health precautions, as shown by the procedures for taking DNA samples. He also says that there is no policy to prevent the taking of samples more than once from the same inmates and that inmates on Death Row are denied access to an impartial grievance adjudicator.

Next, Scheanette claims that the Director of TDCJ-CID and all of the members of his staff are involved in a criminal enterprise under the Racketeer Influenced and Corrupt Organizations (RICO) Act. He says that there is a "policy of discrimination" against inmates on Death Row, including the denial of access to television, the taking of blood samples in the dayroom, no spoons or cups are given to Death Row inmates, other inmates have been gassed while hanging themselves, inmates are not provided with any kind of educational programs, inmates are strip searched regardless of the weather, inmates are housed in segregation for 22½ hours per day, strip searches are conducted every time inmates leave their cells, the medicine of an inmate Dione Summerlin was confiscated even though Summerlin had previously attempted suicide, Death Row inmates are locked down twice a year for shakedowns, Death Row inmates are moved from cell to cell yearly while inmates in general population stay in the same cell throughout their incarceration, Death Row inmates are not permitted to go to the law library, information about Death Row inmates is placed on the Internet, the Death Row inmates get clothes that say "D.R." on them, they are not allowed to practice their religion with other inmates of the same faith but must do it by themselves or with a minister at the cell, they are not allowed any inmate to inmate contact, and they receive different I.D. numbers beginning with 999.

The Martinez Report

*4 The prison officials have been ordered to provide copies of prison records relevant to Scheanette's claims, pursuant to Cay v. Estelle, 789 F.2d 318 (5th Cir.1986) and Parker v. Carpenter, 978 F.2d 190, 191-92 n. 2 (5th Cir.1992).1 Scheanette was provided with a copy of the Report and was allowed to file a response, which he did.

1 This is known as a Martinez Report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) ( cited with approval in Cay and Parker ).

The Martinez Report observes that all 50 states and the federal government have enacted laws providing for the collection of DNA samples upon a showing that the inmate has been convicted of a predicate offense. Because Scheanette was convicted of capital murder, he falls within the Texas statute requiring DNA samples. The prison officials state that Scheanette had not previously given such a sample and was therefore properly required to do so.

The procedures for taking samples specify that the medical staff should collect the sample, a thumb-print obtained from the inmate, and a form completed, including the inmate's signature. This is done to ensure that the sample is from the correct inmate. TDCJ-CID regulations provide that inmates who refuse to give the sample may be subjected to disciplinary action.

In taking the sample, the prison records show, a needle is used only once and is contained in a sterile sealed wrapper until ready to be used. Consequently, it is not necessary to cleanse the needle with alcohol. Scheanette's medical records give no indication that he ever complained about a rash around the time of the taking of the sample, and an affidavit from Dr. Clarence Thomas, M.D., says that it is "highly unlikely" that Scheanette received a rash from the DNA blood draw because the injection is done with a sterilized needle, the skin is cleansed, and the injection site is a small contained area.

Dr. Thomas says that although Scheanette complains that his blood was drawn in the day room, which is unsanitary, in fact there is no added risk for airborne pathogens as opposed to any other common area where blood might be drawn. He noted that recreation areas are cleaned daily and that if the medical staff believes that the area is not clean enough, the area will be sanitized to an acceptable level or the procedure moved elsewhere.2

2 Scheanette's contention that he has "a degree in animal science, " which is how he says he knew that the procedure was not sanitary, is not borne out by the prison records.

The prison officials assert in the Martinez Report that inmates are provide with adequate health care, that food is not withheld from them, and that prison policy requires that Death Row inmates be strip searched and placed in restraints before exiting their cells. They note that these searches are done to ensure that no contraband has been brought into the facility which might present a threat to security, facilitate an escape, or be used in an assault on staff or inmates. The prison officials acknowledge that strip searches may take place when the weather is chilly, but say that these are performed as quickly as possible to minimize discomfort.

The prison officials also acknowledge that Death Row inmates do not get the same spoons as regular inmates, but get small disposable spoons rather than reusable plastic ones. This is done because the more rigid reusable spoons can be used as stabbing devices, but the small disposable ones can be used to eat with but cannot be made into weapons. They state that inmates who do not have cups receive a plastic or Styrofoam cups for use during meals, which are returned to the food service department afterwards; inmates may purchase such cups if the inmates are of the proper custody level. They agree that inmates on Death Row are not allowed access to television.

*5 Next, the prison officials say that Death Row inmates are kept in their cells for 22½ hours per day due to security concerns surrounding inmates convicted of capital murder. They state that there is a security risk with inmate-to-inmate contact and that the "work-capable" program for Death Row inmates is currently suspended. They state that Death Row inmates do get different identification numbers and distinctive clothing, so that they can be more easily identified.

With regard to the lockdowns, the officials state that the Polunsky Unit, including Death Row, is locked down twice a year, which allows all cells to be searched for contraband. Death Row inmates are considered high security risks and so they are moved around yearly. The Death Row inmates are not allowed physical access to the law library for security considerations. Finally, the prison officials state that Death Row inmates are not allowed contact with one another for religious services and that they receive cell-side ministerial visits and weekly spiritual visits.

The Response to the Martinez Report

In his response, Scheanette says that the prison officials presented no evidence that the needle was cleaned before use. He again says that he has "a degree in animal science" and states that he worked for Johnson & Johnson at the time of his arrest, doing U.P.S processing, and that he saw "human error all the time" in packaging.

Scheanette states that he gave a DNA sample in saliva when he was arrested by the Arlington police. He conceded that he had never given a blood sample.

Next, Scheanette states that he was not complaining about the conditions on Death Row per se, but that he was subjected to discrimination under the Americans with Disabilities Act and that he was being denied the benefits of services and programs to which he is entitled. He says that the prison officials clearly say that Death Row inmates "have problems interacting with others" and therefore are covered by the Americans with Disabilities Act. He reiterates his claim that the taking of his blood was done under unsanitary conditions and says that Dr. Thomas "is a liar and should be prosecuted." Scheanette again argues that the taking of his blood was a Fourth Amendment violation and says that Nurse Riggins did not clean the latex tie used on his arm.

Legal Standards and Analysis

Scheanette's primary complaint concerns the taking of his blood for a DNA sample, in conformity with Tex. Gov.Code Ann. At 411.148. The Fifth Circuit has held that the compelled collection of a DNA sample from a convicted felon does not violate the Fourth Amendment. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). Similarly, the Northern District of Texas has held that the collection of a DNA sample pursuant to the statute does not violate due process and does not amount to cruel and unusual punishment. Holliman v. Texas Department of Criminal Justice, slip op. no. 2:00-cv-0291 (N.D.Tex., Jan. 22, 2001) (unpublished). Scheanette's claims on these grounds are without merit.

*6 Scheanette's contentions that the taking of his sample violated his right of free speech and his "right not to speak" are without merit. Neither the giving of the sample, nor Scheanette's desire to protest the taking of the sample, are constitutionally protected speech, nor has Scheanette shown that he exercised his right of free speech in a manner consistent with his status as a prisoner. Freeman v. Texas Department of Criminal Justice, 369 F.3d 854, 864 (5th Cir.2004). This claim is without merit.

Similarly, Scheanette has not shown that his rights were violated through the manner of the taking of the sample, because he has not shown that he has suffered any harm thereby. See Memphis Community School District v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (for a Section 1983 claim to be viable, the plaintiff must allege an injury); accord, Jackson v. Culbertson, 984 F.2d 699 (5th Cir.1993) (some injury needed in use of force claim).

The giving of a DNA sample does not violate Scheanette's right to be free from self-incrimination because this privilege only applies when an accused is compelled to make a testimonial communication which is incriminating. United States v. Bengivenga, 845 F.2d 593, 600 (5th Cir.1988). The privilege does not apply to non-testimonial evidence such as blood samples. Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This claim is without merit.

Scheanette also alleges that he is the victim of a conspiracy. He says that this conspiracy is based on the fact that he is a Death Row inmate and that he is black.

The Fifth Circuit has stated that specific facts must be pled when a conspiracy is alleged; mere conclusory allegations will not suffice. Hale v. Harney, 786 F.2d 688, 690 (5th Cir.1986). In pleading these specific facts, the Plaintiff must allege the operative facts of the alleged conspiracy. Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir.1987). Scheanette has wholly failed to set out any specific facts showing that he has ben the victim of a conspiracy, but merely asserts that it is so.

To recover on a claim of a conspiracy, there must be an actual deprivation of a constitutional right; a mere conspiracy to deprive is insufficient. Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir.1984). In this case, Scheanette has not shown that he was actually deprived of any constitutional right. Furthermore, in order to prove a conspiracy in violation of the first clause of 42 U.S.C. 1985(3), a plaintiff must show that a conspiracy, based upon racial animus, existed between two or more persons for purpose of depriving a person or class of persons of the equal protection of the laws or of equal privileges and immunities under the law, and that an act was committed in furtherance of the conspiracy which injured a person or otherwise deprived a person of a right or privilege of a citizen of the United States. Deubert v. Gulf Fed. Savings Bank, 820 F.2d 754, 757 (5th Cir.1987); see also Kimble v. D.J. McDuff Inc., 648 F.2d 340 (5th Cir.1981). Scheanette has not shown that a racially-based conspiracy existed, much less that he suffered any injury as a result. His conspiracy claim is without merit.

*7 Scheanette raises a number of state law claims, apparently under the supplemental jurisdiction of the Court. These claims include intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, violation of federal wiretap statutes, and false imprisonment (in the recreation room).

The doctrine of supplemental jurisdiction (now known as supplemental jurisdiction) is codified in 28 U.S.C. § 1367, for all civil actions filed on or after December 1, 1990. See Public Law 101-650, Section 310(c); Whalen v. Carter, 954 F.2d 1087, 1097 n.10 (5th Cir.1992).

28 U.S.C. § 1367(a) reads as follows:

Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Subsection (b) refers to actions filed under diversity jurisdiction and thus is not applicable in this case. Subsection (c) reads as follows:

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-
(1) The claim raises a novel or complex issue of State law;
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original jurisdiction; or
(4) in exceptional circumstances, there are compelling reasons for declining jurisdiction.

Here, the Court acquired original jurisdiction based on the plaintiff's claim of a violation of federal law under 42 U.S.C. § 1983 and the Eighth Amendment to the U.S. Constitution. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). However, the plaintiff failed to show a constitutional violation. Thus, the claims over which this Court possessed original jurisdiction are without merit. This Court therefore declines supplemental jurisdiction over the plaintiff's state law claims, deferring instead to the laws and judicial processes of the State of Texas. 28 U.S.C. § 1367(c)(3). Because the Court declines supplemental jurisdiction over the state law claims, the statute of limitations on such claims is tolled from the date the lawsuit was originally filed until thirty days after the final judgment dismissing the action is entered on the docket. 28 U.S.C. § 1367(d). See Slaughter v. Allstate Insurance Co., 803 F.2d 857 (5th Cir.1986) (supplemental jurisdiction should not ordinarily be exercised where there is no federal claim).

Scheanette then turns to the Americans with Disabilities Act. He says in his response to the Martinez Report that he is not complaining about the conditions on Death Row, but only of the TDCJ policy of discrimination, which he says is a violation of the ADA. He says that the prison officials "clearly admit" that he is regarded as having a problem in interacting with others, which Scheanette says is proof that Death Row inmates fall under the ADA. He cites cases saying that "interacting with others" is a major life activity, indicating that his apparent inability to do so is a disability under the terms of the statute.

*8 To establish a claim under the ADA, the plaintiff must show (1) that he is a qualified individual under the Act; (2) that he is being excluded from participation in or being denied benefits of services, programs, or activities for which the defendants are responsible, or that he is otherwise being discriminated against by the defendants; and (3) that this exclusion, denial of benefits, or discrimination is by reason of the disability. Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 428 (5th Cir.1997); see Davidson v. Texas Department of Criminal Justice, 91 Fed.Appx. 963 (5th Cir., March 19, 2004) (not selected for publication in the Federal Reporter) (rejecting inmate's ADA claim because the inmate failed to show that he was adversely treated solely because of his handicap).

In this case, Scheanette has failed to make the requisite showings. No court has held that being on Death Row automatically qualifies one as "disabled, " as Scheanette expressly or implicitly maintains. More pertinently, Scheanette has not shown that he is suffering discrimination because of this alleged "handicap."

The Supreme Court has held that when prison regulations infringe upon inmates' constitutional rights, the regulations are valid when they are reasonably related to legitimate penological interests. Turner v. Salley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). While the Fifth Circuit has not spoken on this matter, some courts, though not all, have held that this test applies to statutory rights created by the ADA. Gates v. Rowland, 39 F.3d 1439, 1447 (9th Cir.1994); compare Onishea v. Hopper, 171 F.3d 1289, 1299-1300 (questioning the propriety of applying the Turner factors to prisoners' claims under the ADA and the Rehabilitation Act, but finding no harm because the requirements for participation in prison programs are determined by the same "legitimate penological interests" as form the basis of the decision in Turner, including the maintenance of security).

In this case, the plaintiff Dale Scheanette was convicted of capital murder and sentenced to death. There can be no dispute that inmates on Death Row are among the most significant security risks within the prison. See, e.g., Jeffries v. Reed, 631 F.Supp. 1212, 1217 (E.D.Wash.1986). Scheanette raises allegations of discrimination including claims that Death Row inmates are denied access to television, blood samples are taken in the dayroom, no spoons or cups are given to Death Row inmates, other inmates have been gassed while hanging themselves, inmates are not provided with any kind of educational programs, inmates are strip searched regardless of the weather, inmates are housed in segregation for 22½ hours per day, strip searches are conducted every time inmates leave their cells, Death Row inmates are locked down twice a year for shakedowns, Death Row inmates are moved from cell to cell yearly while inmates in general population stay in the same cell throughout their incarceration, Death Row inmates are not permitted to go to the law library, information about Death Row inmates is placed on the Internet, the Death Row inmates get clothes that say "D.R." on them, they are not allowed to practice their religion with other inmates of the same faith but must do it by themselves or with a minister at the cell, they are not allowed any inmate to inmate contact, and they receive different LD. numbers beginning with 999.

*9 However, Scheanette has not shown that any of these actions were taken in order to discriminate against Death Row inmates because they have the alleged disability of "being unable to interact with others, " as opposed to being reasonable security precautions taken in response to the threat posed by such inmates. See Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir.1999) (inmates' rights are diminished by the needs of the institution, and so they lose those rights necessarily sacrificed to legitimate penological needs). His claims regarding the Americans with Disabilities Act are without merit.

Although Scheanette disclaims any intent to complain about the conditions on Death Row, the Court has reviewed these claims in the interest of justice. His claim that he is being denied access to television patently fails to state a claim under the ADA. See Brown v. Craven, 106 Fed.Appx. 257, 258 (5th Cir., July 26, 2004) (not selected for publication in the Federal Reporter) (no constitutional right to watch television); Clark v. Woods, slip op. no. 7:99-CV-173-R (N.D.Tex., Jan. 16, 2001) (unpublished) (available on WESTLAW at 2001 WL 123668 (denial of television privileges not an ADA violation).

The fact that blood samples are taken in the dayroom does not implicate any constitutional right, particularly in light of the fact that Scheanette has shown no harm resulting thereby. The fact that they do get disposable spoons and cups likewise does not implicate any constitutional right; Scheanette does not assert that these are inadequate for his needs. Although he complains that other inmates have been gassed and that the medication of another inmate was taken, Scheanette lacks standing to invoke the constitutional rights of other persons. Coon v. Ledbetter, 780 F.2d 1158, 1159 (5th Cir.1986); see also Cramer v. Skinner, 931 F.2d 1020, 1024 (5th Cir.1991). Similarly, Scheanette has failed to show any harm in his conclusory assertion that "food was taken from Death Row inmates."

The fact that Death Row inmates are not provided with educational programs is not a constitutional violation. Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977). Although Scheanette complains of strip searches being carried out in cold weather, he does not allege that he suffered any harm beyond transitory discomfort. The Fifth Circuit has held that indicia of confinement constituting cruel and unusual punishment include wanton and unnecessary infliction of pain, conditions grossly disproportionate to the severity of the crime warranting imprisonment, and the deprivation of the minimal civilized measures of life's necessities. Wilson v. Lynaugh, 878 F.2d 846, 848 (5th Cir.), cert. denied 493 U.S. 969, 110 S.Ct. 417, 107 L.Ed.2d 382 (1989). The Supreme Court has held, however, that to the extent that prison conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society. Rhodes v. Chapman, 452 U.S. 337, 346-7, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). In compliance with the Supreme Court's opinion, the Fifth Circuit has stated that the Eighth Amendment does not afford protection against mere discomfort or inconvenience. Wilson, 878 F.2d at 849.

*10 In this case, as the Martinez Report says, strip searches are a necessary part of prison security, particularly in light of the dangers posed by Death Row inmates. Jeffries, 631 F.Supp. at 11216-17. The prison officials acknowledge the need for such searches but state that they are conducted in such a way as to minimize any discomfort. The Court notes that Scheanette only complains of one such search, on January 6, 2004, and then does not indicate that he suffered any harm from it. As noted above, the Supreme Court has stated that for a Section 1983 claim to be viable, the plaintiff must allege an injury. Memphis Community School District v. Stachura, 477 U.S. at 308; Jackson v. Culbertson, 984 F.2d at 699-700. This claim is without merit.

Scheanette next complains that inmates on Death Row are housed in segregation for 221/2 hours per day, and are not permitted physical access to the law library. As noted above, inmates convicted of capital murder represent a significant risk to the security of the institution, and the segregation of such individuals, for the protection of staff, other inmates, and themselves, is reasonably related to a legitimate penological purpose. Scheanette does not assert that he is being denied access to court, only that he cannot physically go to the law library. The Constitution does not require physical access to the law library, but only that inmates be afforded adequate access to court. A showing of harm is required in a claim of denial of such access. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2179-81, 135 L.Ed.2d 606 (1996). Here, Scheanette has not shown any harm; in fact, court records show that he has filed over a dozen civil actions in the federal district courts within the Fifth Circuit. He plainly is not being denied access to court. Scheanette's claim on this point is without merit.

The fact that Death Row inmates are locked down twice a year for shakedowns and that they are routinely moved from cell do cell do not implicate any constitutional concerns. The Martinez Report notes that the entire Polunsky Unit, not merely Death Row, receives twice-yearly shakedowns, and Scheanette does not have any liberty interest in remaining in one cell on Death Row as opposed to another. These claims are without merit.

The fact that inmates on Death Row receive prison clothes with the letters "D.R." on them and the fact their prison identification numbers begin with 999 do not implicate any constitutional concern. The prison has a legitimate interest in identifying inmates housed on Death Row. This claim is without merit.

The information available about inmates on the TDCJ website includes their names, birthdates, gender, race, date received, county of conviction, date of offense, age when received, age at time of offense, education level, hair color, eye color, height, weight, county and state of birth, prior occupation, and prior prison record. A summary of the offense, names of co-defendants, and the race and gender of the victim is also included, as well as a photo of the inmate.

*11 Scheanette does not have a constitutionally protected privacy interest in any of this information; rather, most if not all of it is available through public information sources. The details about his offense, for example, can be found in the published report of the appeal of his case.

In addition, the Court notes that Scheanette has apparently made much of this information public voluntarily; he has posted on various Internet sites, including a site run by the Canadian Coalition Against the Death Penalty, a request for pen pals, which request includes his age, city and state of birth, and personal information about his likes and interests, as well as his photograph. See http://www.ccadp.org/dalescheanette.htm. His claim concerning invasion of privacy is without merit.

Finally, Scheanette asserts claims under RICO, the Racketeer Influenced and Corrupt Organizations Act. In order to maintain a civil cause of action under RICO, the plaintiff must show a pattern of racketeering activity connected to the acquisition, establishment, conduct, or control of an enterprise. In re Burzynski, 989 F.2d 733, 741 (5th Cir.1993). A pattern of racketeering activity requires two or more predicate acts and a demonstration that the racketeering predicates are related and amount to or pose a threat of continuing criminal activity. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 441 (5th Cir.2000). Scheanette's vague and conclusory allegations are wholly insufficient to show a pattern of racketeering activity connected to the acquisition, establishment, conduct, or control of an enterprise. His RICO claim is without merit.

Conclusion

28 U.S.C. § 1915A requires that as soon as practicable, district courts must review complaints wherein prisoners seek redress from governmental entities or their employees. Section 1915A(b) requires that upon review, the court shall identify cognizable claims or dismiss the complaint or any portion thereof if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

The term "frivolous" means that a complaint lacks an arguable basis in law or fact; a complaint is legally frivolous when it is based upon an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 325-7, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted if as a matter of law, it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338, (1989), citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995).

In this case, Scheanette's complaint lacks any arguable basis in law and fails to state a claim upon which relief may be granted. Consequently, his lawsuit may be dismissed as frivolous under 28 U.S.C. § 1915A(b). See generally Thompson v. Patteson, 985 F.2d 202 (5th Cir.1993).

RECOMMENDATION

*12 It is accordingly recommended that the above-styled civil rights lawsuit be dismissed with prejudice as frivolous. 28 U.S.C. § 1915A. It is further recommended that the Court decline to exercise supplemental jurisdiction on any state law claims which Scheanette may have and that the statute of limitations on any such claims be tolled from the date the lawsuit was originally filed until thirty days after the final judgment dismissing the action is entered on the docket. 28 U.S.C. § 1367(d).

A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) ( en banc ).

Attorneys and Law Firms

*842 Darrell Lamont Stallings, Hutchinson, KS, pro se.

Mary Diane Minear, John Wesley Smith, Office of the Attorney General for the State of Kansas, Topeka, KS, for Defendant-Appellees.

Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.

ORDER AND JUDGMENT*

* 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.

MARY BECK BRISCOE, Chief Judge.

After examining the briefs and 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). The case is, therefore, submitted without oral argument.

Plaintiff Darrell L. Stallings, proceeding pro se, appeals from the district court's grant of summary judgment in favor of defendants on his claim brought under 42 U.S.C. § 1983. Stallings contends there were disputes of material fact precluding summary judgment on his claim that corrections officials violated his Fourteenth Amendment right to due process by detaining him in administrative segregation without meaningful reviews. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Stallings is currently serving a life sentence in the custody of the Kansas Department of Corrections (KDOC). Prison officials placed him in administrative segregation at Lansing Correctional Facility (LCF) in February 2008 pending an investigation into suspicious injuries on his body. The injuries on his face and head were consistent with having been in a fight, and officials found Stallings's torn, bloody sweatshirt on a nearby cell block. In an initial review of the situation, the Administrative Segregation Review Board (ASRB) decided Stallings should be placed in segregation "pending investigation of his housing needs." ROA at 217. When prison investigator Tim Robinson followed up, he determined that Stallings was in "serious danger" based on "numerous letters [sent to the warden] stating that [Stallings] will be killed if returned to population." Id. at 227. Robinson found that these threats were likely due to Stallings's involvement in drug trafficking and debts he owed to other inmates at LCF. Robinson concluded that Stallings should remain in segregation "[p]ending a meeting... to determine [his] housing needs." Id. at 228.

Stallings received reviews of his segregation status in March, April, May, and June 2008. On June 26, 2008, an administrative segregation report changed Stallings's status from "pending investigation" to "Other Security Risk." Id. at 224. The report concluded that Stallings would likely "become [a] victim[ ] of additional violence or [he] will take retaliatory actions that will lead to violence." Id. The report concluded by recommending that Stallings be moved to "lockdown" at the El Dorado Correctional Facility (EDCF). Id. Stallings *843 was moved to EDCF on August 7, 2008.

Once at EDCF, Stallings received monthly segregation reviews; officials prepared a report after each meeting. See id. at 248-300. Stallings was allowed to attend the reviews and comment on the record, although he did not always do so. On June 28, 2011, he began the Behavior Management Program at EDCF. In February 2012, he was transferred to the Hutchinson Correctional Facility.

In May 2010, Stallings filed this pro se action under 42 U.S.C. § 1983 against defendant-appellee Roger Werholtz, the state secretary of corrections, and other named KDOC officials. In a verified complaint, he claimed to have a protected liberty interest in avoiding the conditions of confinement in administrative segregation. He claimed that KDOC officials violated his Fourteenth Amendment right to due process by retaining him in these conditions without providing meaningful reviews. In describing the conditions, Stallings alleged that he was housed in a seven-by-ten-foot cell for at least twenty-three hours a day. He explained he was allowed out of his cell for a total of five hours' recreation each week. He was only permitted video conference visits with family and friends, and his interaction with other inmates was "obscured by thick rubber attached around the metal doors to each cell." Id. at 189.

Prison officials filed a report in district court that included documents relating to the investigation and Stallings's ongoing placement in administrative segregation. See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.1978) (authorizing the filing of an administrative record by prison officials in pro se prisoner litigation). This " Martinez report" contained copies of all monthly reviews from the time Stallings was placed in segregated confinement to the time he was released. See ROA at 248-300. Stallings filed objections to the Martinez report. Id. at 397.

Both parties moved for summary judgment. In a written order, the district court granted the defendants' motion.1 The district court entered judgment on January 9, 2012. Stallings brought this timely appeal.

1 In addition to the due process/liberty interest claim that is the subject of this appeal, the district court granted summary judgment for defendants on two other issues: (1) Stallings's claim that he had "a protected right to have a grievance investigated, " see ROA at 558; and (2) Stallings's claim for damages against prison officials acting in their official capacity, see id. at 553-54. Stallings did not appeal these portions of the court's summary judgment order.

II

Stallings argues on appeal that there are disputes of material fact on his due process/liberty interest claim that preclude summary judgment for defendants. We review the district court's grant of summary judgment de novo, applying the same standard the district court applies under Federal Rule of Civil Procedure 56. Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir.2007). Because Stallings proceeds pro se, we construe his submissions liberally; however, we do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

A

"In the penological context, not every deprivation of liberty at the hands of prison officials has constitutional dimension. This is so because incarcerated persons retain only a narrow range of protected liberty interests.'" Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir.2012) (quoting Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994)). For example, a liberty *844 interest may arise when an inmate faces conditions of confinement that impose an "atypical and significant hardship... in relation to the ordinary incidents of prison life.'" Id. (quoting Wilkinson v. Austin, 545 U.S. 209, 223, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005)). When conditions do not rise to that level, we will not review the procedural steps taken by prison officials in determining the appropriate placement of inmates. See id. at 1016 ("Because no liberty interest is implicated, we do not reach the question of whether the inmates received adequate process to justify their transfers to ADX."). While a liberty interest "may arise from an expectation or interest created by state laws or policies, " we may not parse the language of prison regulations as part of this inquiry; rather, we look to the nature of the conditions themselves in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 222-23, 125 S.Ct. 2384.

In a recent decision, we analyzed "four potentially relevant, nondispositive factors" to determine whether certain conditions of confinement impose an "atypical and significant hardship... in relation to the ordinary incidents of prison life." Rezaq, 677 F.3d at 1011-12. In particular, we noted that

relevant factors might include whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement, ...; and (4) the placement is indeterminate....

Id. at 1012 (quoting Estate of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1334, 1342 (10th Cir.2007)) (brackets omitted). While these factors do not "serve as a constitutional touchstone, " they do facilitate "a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Id.

B

On the due process/liberty interest claim, the district court applied the four factors from DiMarco. First, in determining whether the placement "related to and furthered a legitimate penological interest, " the court found that Stallings failed to controvert defendants' evidence that prison officials acted based on "legitimate security interests to protect plaintiff and to reduce the risk to staff and other inmates." ROA at 555. Second, in considering the extremity of the conditions of confinement, the court observed that the defendants did not controvert Stallings's facts "which reflect the severe nature of his confinement." Id. at 556. Rather, "defendants merely state [d] that the conditions, while not comfortable, were not extreme.'"2 Id. Third, the court found no evidence that placement in administrative segregation "led to loss of good time credit or otherwise increased the length of his confinement." Id. at 556-57. Finally, in determining whether the placement was indeterminate, the court found "uncontroverted evidence that prison officials reviewed plaintiff's placement on a monthly basis." Id. at 557. "Based on all of the DiMarco factors, " the district court found that Stallings's "conditions of confinement, though certainly harsh, did not impose a significant hardship." Id.

2 The district court considered the parties' conflicting accounts on this prong, but it did not make an explicit finding as regards the extremity of the conditions.

After reviewing the record de novo, we discern no error in the district court's grant of summary judgment for defendants.

First, there is no material factual dispute as regards KDOC's legitimate penological interest in segregating Stallings from the general population. Even after *845 the investigation into his injuries was closed, prison officials continued to suspect Stallings would retaliate if returned to general population. There is also ample evidence indicating Stallings would have been attacked, and possibly killed, upon returning to general population.

In light of our rule requiring liberal construction of pro se submissions, we have closely reviewed Stallings's allegations that his placement was the product of a prison official's "personal vendetta against him." See Aplt. Br. at 13. We construe this as an argument that Stallings was not held in segregation in furtherance of legitimate penological interests. With this in mind, we have conducted a searching review of the record. We find no evidence that defendant Marcelle Cappel-Schmidling placed Stallings in administrative segregation "to reap revenge." Id. Likewise, defendant Duane Muckenthaler's response to Stallings's grievance does not reasonably suggest he "worked in cooperation with Defendant [Cappel-]Schmidling to make sure Plaintiff was placed in indeterminate segregation status." Id. The response contains nothing more than factual statements about Stallings's status. See ROA at 100-01. There is thus no dispute of material fact regarding KDOC's legitimate penological interest in segregating Stallings as a risk to institutional security based upon prison officials' concern for Stallings's safety and the safety of those he may harm.

Second, the conditions of confinement in administrative segregation at EDCF are not extreme. "In cases involving placement in nondisciplinary administrative segregation, it is appropriate to compare the conditions at issue with those ordinarily experienced by inmates with similar records and sentences." Rezaq, 677 F.3d at 1012. Stallings alleges he was kept in a seventy-square-foot cell for at least twenty-three hours a day. He also explains that he is limited to five hours outside his cell each week, and any visits with family are conducted via video-conferencing. We do not find these conditions to be extreme. Because the conditions Stallings describes are "substantially similar to conditions experienced in any solitary confinement setting, " id. at 1015, this factor weighs against finding a liberty interest.

Under the third factor, we agree with the district court that there is no evidence this placement increased the length of Stallings's confinement. Compare Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384 (holding that liberty interest exists where, among other things, placement in segregated confinement disqualifies an otherwise eligible inmate for parole consideration), with Rezaq, 677 F.3d at 1015-16 ("There is no evidence that confinement at ADX lengthened plaintiffs' sentences."). This factor also weighs against the creation of a liberty interest.

Finally, we consider whether prison officials indefinitely retained Stallings in administrative segregation without periodic placement reviews. Throughout his placement, Stallings received monthly reviews in which he was permitted to participate.3 *846 In contrast, the inmates in Wilkinson were given annual reviews after an initial thirty-day review. Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384. And in Rezaq, this factor weighed against finding a liberty interest because the inmates were given twice-yearly reviews. That said, "it is not necessary for us to closely review the process at this stage. The availability of periodic reviews merely suggests that the confinement was not indefinite." Rezaq, 677 F.3d at 1016. We conclude that no rational factfinder could find Stallings's placement in administrative segregation was of indefinite duration.

3 Stallings contends these proceedings were a sham, but there is no support in the record to support that allegation. It is true that many of the reports from his monthly reviews rely on the initial placement facts as grounds for continued segregation. But this is not evidence that the reviews were meaningless. It is only logical that the baseline rationale for placing Stallings in segregation and keeping him there would not change with each review. That the prison officials did not revise their reasoning at each review does not make the reviews any less "meaningful." Circumstances justifying an inmate's continuation in administrative segregation are often slow to change. This is especially so when the placement is based on documented threats to the inmate's life and the inmate's history of retaliatory violence.

Considering each of these factors, we conclude that Stallings's confinement in administrative segregation did not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. Summary judgment for defendants was appropriate because "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Hollingsworth v. Hill, 110 F.3d 733, 737 (10th Cir.1997) (quotation omitted).

III

The judgment of the district court is AFFIRMED. Appellant is reminded of his obligation to continue making partial payments of the appellate filing fee until it is paid in full.

Attorneys and Law Firms

*719 Mark McAdams, Rawlins, WY, pro se.

Peter Kenneth Michael, John Rossetti, Melissa E. Westby, Office of the Attorney General for the State of Wyoming, Cheyenne, WY, for Defendants-Appellees.

Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.

ORDER AND JUDGMENT*

* The parties have waived oral argument. See Fed. R.App. P. 34(1); 10th Cir. R. 34.1(G). This case is submitted for decision on the briefs.
This order and judgment is an unpublished decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R.App. 32.1. It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation-(unpublished). Id.

TERRENCE L. O'BRIEN, Circuit Judge.

Mark McAdams, a prisoner in the Wyoming Department of Corrections (DOC), was placed on long-term administrative segregation (LTAS) in January 2011. He was initially placed on LTAS pending an assault investigation but has remained on LTAS, he claims, due to (1) false statements from a confidential informant (CI) indicating his safety is at risk in general population, and (2) past conduct for which he has already been punished or exonerated. He filed a pro se1 civil rights complaint against the DOC and several of its officials alleging violations of procedural due process and double jeopardy.

1 We liberally construe McAdams' pro se filings. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.2003).

The district judge directed the DOC to prepare and file a Martinez report.2 It did so and accompanied the report with a motion to dismiss under Fed.R.Civ.P. 12(b)(6). The judge granted the motion. She concluded McAdams has no protected liberty interest in avoiding confinement in LTAS and thus the due process clause is not implicated. She also rejected the double jeopardy claim because prison disciplinary sanctions-such as administrative segregation-do not implicate double jeopardy protections.

2 The report takes its name from the opinion in which we approved a district court's order to prison officials to investigate and report on the allegations in an inmate's complaint: Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir.1978).

We review the dismissal of a complaint de novo. Doe v. City of Albuquerque, 667 F.3d 1111, 1118 (10th Cir.2012). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. *720 Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In what turns out to be only a prelude to the ultimate resolution of this appeal, McAdams tells us the district judge improperly accepted the DOC's version of the facts stated in the Martinez report. Had the judge accepted his factual allegations, he says, his claims would have survived dismissal.

McAdams has a point, albeit an ultimately insignificant one. He specifically contested a number of facts in the Martinez report.

Nevertheless, the judge accepted as true the facts as outlined in the report. But Martinez reports may not be used at the motion to dismiss stage to resolve factual disputes. See Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir.1993) ("In determining whether a plaintiff has stated a claim, the district court may not look to the Martinez report, or any other pleading outside the complaint itself, to refute facts specifically pled by a plaintiff, or to resolve factual disputes."); Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992) ( Martinez "process is designed to aid the court in fleshing out possible legal bases of relief from unartfully drawn pro se prisoner complaints, not to resolve material factual issues."); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991) (stating a district court may sometimes consider a Martinez report in deciding a motion to dismiss a complaint under Rule 12(b)(6) but can do so only "[w]hen the plaintiff challenges a prison's policies or established procedures and the Martinez report's description of the policies or procedures remains undisputed after plaintiff has an opportunity to respond"; otherwise the motion to dismiss must be converted to a motion for summary judgment). The district judge should have accepted "as true all well-pleaded factual allegations in [the] complaint" and viewed them in the light most favorable to McAdams. Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir.2013)(quotation marks omitted).

McAdams has won a pyrrhic victory. He ultimately loses because his version of the facts, accepted as true, fails to state a claim.

A. Due Process Claim

According to McAdams, the DOC placed him in LTAS without due process of law in that he was not provided reasons for his placement until fifteen months after his placement and has never been given a hearing to dispute those reasons. But before he can cry foul as to inadequate process, he must identify a liberty interest in avoiding transfer to LTAS. See Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) ("The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake."); Rezaq v. Nalley, 677 F.3d 1001, 1016 (10th Cir.2012) ("Because no liberty interest is implicated, we do no reach the question of whether the inmates received adequate process to justify their transfers to ADX.").

"[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson, 545 U.S. at 221, 125 S.Ct. 2384. State policies or regulations, however, may create a liberty interest in avoiding particular conditions of confinement when they "impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Id. at 221-23, 125 S.Ct. 2384 (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).

*721 We consider several non-dispositive factors in determining whether a certain confinement imposes "atypical and significant hardship" (and thus a liberty interest in avoiding such confinement). Estate of DiMarco v. Wyo. Dep't of Corrs., Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir.2007); see also Rezaq, 677 F.3d at 1012 n. 5. The factors include "whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement...; and (4) the placement is indeterminate." Estate of DiMarco, 473 F.3d at 1342. "[A]ny assessment [of these factors] must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." Id.

[1] In the Martinez report, the DOC cited McAdams' safety and disciplinary record as reasons for placing him in LTAS and keeping him there since January 2011. McAdams disputes several key facts in the Martinez report, namely, information received from a CI indicating his safety is at risk in general population and the charge of his involvement in gang activities and threatening to harm other inmates. However, while he alleges the CI's information is false, 3 he does not dispute that such information was provided to the DOC. The DOC had reason to question his safety in the general population. Moreover, while he may dispute the accuracy of his reported threats to other inmates and his claimed participation in gang activity, the undisputed facts show a history of serious infractions.4 The DOC has a legitimate penological interest in confining McAdams in LTAS.

3 McAdams' challenges to the credibility of the CI essentially put "the cart before the horse" because they concern the process he was due. Again, he is not entitled to any process under the Constitution absent a liberty interest.
4 McAdams selectively disputes the accuracy of his disciplinary history: (1) the reported stabbing of two inmates is inaccurate (because the second stabbing charge was dismissed by a state judge), and (2) he was not involved in inciting a prison riot (because his conviction was only for criminal mischief). These disputes are specious. That a state court judge dismissed a charge based on the State's motion, see infra Section B, does not equate to innocence or establish insufficient proof of his guilt for prison disciplinary purposes. Furthermore, inciting a riot can support a criminal mischief conviction.

The conditions of LSAT are not pleasant. McAdams is confined to his cell for twenty-three hours a day; he is limited to one hour of recreation five days a week and three showers a week; the property he is allowed to keep in his cell is restricted; his visits are noncontact; and the lights are on twenty-four hours a day. But these conditions are not extreme.5 See Rezaq, 677 F.3d at 1014-15 (concluding conditions were not extreme where inmates had control over their cell lights, the opportunity for outdoor recreation, regular contact with staff, the ability to occasionally communicate with other inmates and their cells contained a television airing religious and educational programming even though cells were small and stark, inmates spent twenty-three hours a day in their *722 cells, their outdoor recreation was limited to a small fenced-in area and they were only allowed five non-contact social visits and two fifteen-minute phone calls per month); Stallings v. Werholtz, 492 Fed.Appx. 841, 845 (10th Cir.2012) (unpublished)6 (deciding conditions not extreme where inmate was confined in seventy square foot cell twenty-three hours a day, had limited time outside his cell each week and social visits were conducted via videoconferencing).

5 Relying on the Martinez report, the district judge concluded the conditions of McAdams' confinement in LTAS are not extreme because they mirror those he would experience in general population due to "the heightened custody level his record warrants." (R. Vol. 1 at 294.) But the author of the Martinez report admitted McAdams' custody classification would be medium in general population (due to the time which has elapsed since his last serious disciplinary violation) and would only be bumped up to maximum if prison staff exercised their authority to override the custody determination.
6 Unpublished opinions are not binding precedent. 10th Cir. R.App. P. 32.1(A). We mention Stallings because of its persuasive and reasoned analysis.

LTAS placement does not increase the duration of McAdams' confinement. Placement in administrative segregation may lengthen an inmate's incarceration if the placement "disqualifies an otherwise eligible inmate for parole consideration." Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384; see also Rezaq, 677 F.3d at 1015-16. McAdams asserts he has "limited programming/rehabilitative opportunities [in LTAS] making it impossible to conform to his case plan which may negatively affect any parole board[']s decision." (R. Vol. 1 at 155 (emphasis added).) Even if LTAS placement may influence a parole board's decision it is a far cry from rendering one ineligible for parole.7

7 While not necessarily a factor in whether LTAS placement increases the duration of confinement, McAdams has not alleged LTAS results in any loss of good time credit.

Finally, the Supreme Court in Wilkinson and our own cases suggest two significant indicators of an indeterminate placement: the length of the placement and the lack of meaningful periodic review. See Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384; Rezaq, 677 F.3d at 1016; Estate of DiMarco, 473 F.3d at 1343-44. McAdams has now been in LTAS for over three years, but that pales in comparison to the duration of confinement in Rezaq, 677 F.3d at 1005-08 (over ten years for one plaintiff; over five years for three plaintiff's). Moreover, his status is regularly reviewed. According to the Martinez report, the DOC's policy is to review LTAS status every ninety days. McAdams does not dispute the fact of regular review and admits he has been present at two of the reviews. Thus, his confinement in LTAS is not indefinite. See Rezaq, 677 F.3d at 1016 (even though inmates had been housed in ADX for many years, confinement was not indefinite where they were given twice a year reviews); Estate of DiMarco, 473 F.3d at 1343-44 (inmate's confinement in administrative segregation for fourteen months was not indefinite where her status was reviewed every ninety days and she was allowed to present her views); Stallings, 492 Fed.Appx. at 845-46 (inmate's placement in administrative segregation for over three years was not indefinite where he received monthly reviews in which he was allowed to participate).8

8 McAdams claims the reviews are pro forma. Admittedly, the review team does not materially revise the reasons for keeping McAdams on LTAS at each review. But "[c]ircumstances justifying an inmate's continuation in administrative segregation are often slow to change. This is especially so when the placement is based on documented threats to the inmate's life and the inmate's history of retaliatory violence." See Stallings, 492 Fed.Appx. at 845 n. 3. He also claims the reviews are a "sham" because the results are predetermined by two defendants (the deputy warden and housing manager) who have directed their staff not to recommend returning him to general population. (R. Vol. 1 at 158.) But McAdams has not alleged what role, if any, these staff members and their recommendations have in the review process.

Taken together, the factors do not indicate McAdams has a protected liberty interest *723 in avoiding LTAS confinement. His due process claim was properly dismissed.

B. Double Jeopardy Claim

[2] We can easily dispose of McAdams' double jeopardy claim. His only complaint on appeal concerns the DOC's use of a stabbing/assault charge to justify, in part, his LTAS confinement even though a Nevada state court judge dismissed the charge. The record shows criminal charges were dismissed against McAdams by a Nevada state court judge upon motion by the State. It is unclear what those charges entailed but even assuming they included conduct used by the DOC to justify McAdams' confinement in LTAS, no double jeopardy violation occurred. Because he was not punished by the State for the conduct, nothing in the double jeopardy clause prevents the DOC from "punishing" McAdams for the conduct. See United States v. Rentz, 735 F.3d 1245, 1252 (10th Cir.2013) (stating the double jeopardy clause "protects criminal defendants against multiple punishments for the same offense imposed in a single proceeding") (emphasis added) (quotation marks omitted). In any event, "[b]ecause the Double Jeopardy clause only applies to proceedings that are essentially criminal in nature, it is well established that prison disciplinary sanctions -such as administrative segregation-do not implicate double jeopardy protections." Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir.2006) (quotation marks omitted).

AFFIRMED.

Attorneys and Law Firms

Christopher J. Brady, Husch Blackwell LLP, Denver, CO, for Plaintiff.

Christopher Wayne Alber, Colorado Attorney General's Office, Denver, CO, for Defendants.

ORDER

WILEY Y. DANIEL, Chief Judge.

*1 THIS MATTER comes before the Court on Defendant Major Linda Maifeld's Motion for Summary Judgment [ECF No. 97], filed September 15, 2011. Plaintiff Sammie Lee Denson, Jr. responded to the Motion on October 11, 2011 [ECF No. 101], and Defendant submitted a reply on October 15, 2011 [ECF No. 103]. Having considered the Motion, response, and reply, I enter the following written Order.

RELEVANT FACTS

I note that the parties tendered voluminous facts and evidence in this case. I have not discussed every fact tendered by the parties, only those that are most material to my findings. I have, however, reviewed and considered all the facts and evidence. Where the facts are unsupported by evidence, are argumentative, and/or are conclusory, I have disregarded those facts. Also, where the facts are undisputed, I have not cited to the record. I have, however, construed all of the facts in the light most favorable to Plaintiff as I must for purposes of this summary judgment motion. See Carolina Cas. Ins. Co. v. Yeates, 533 F.3d 1202, 1204 (10th Cir.2008).

Plaintiff Sammie Lee Denson was at all relevant times an inmate in the Colorado Department of Corrections ("CDOC"). Defendant Major Linda Maifeld was at all relevant times the Custody and Control Manager at the Colorado Territorial Correctional Facility ("CTCF"). Plaintiff was transferred to CTCF in November 2007.

On December 1, 2007, Plaintiff's cell was shaken down. In it was found a letter, in his handwriting, to a female acquaintance, requesting her to bring narcotics to the facility through the visiting program, so that he could sell them for profit. On December 3, 2007, Defendant ordered Plaintiff's removal from the general population and placement into segregation pending an investigation into whether his actions warranted disciplinary action under the Code of Penal Discipline ("COPD"). On December 17, 2007, a hearing was held in which Plaintiff had an opportunity to be heard and present testimony and documentary evidence. Plaintiff waived a three-member panel, and Lieutenant Ken Topliss served as the sole member of the COPD hearing board. Plaintiff was found guilty of attempting to deal in dangerous drugs, a Class I, Rule 13 violation of the COPD, and sanctioned with punitive segregation for the sixteen days he had already served, from December 1, 2007 until December 17, 2007. Defendant did not have any involvement in the investigation or in the COPD disciplinary hearing.

Defendant then made the decision to continue Plaintiff's placement in segregation, even though Plaintiff was eligible to return to general population on December 17, 2007. Defendant contends that this was so that a determination could be made as to whether Plaintiff should be recommended for placement in administrative segregation, and if so, so that the formal hearing process could be completed. (Maifeld Aff. [Ex. A] ¶ 13.) Defendant further contends that she recommended to Lieutenant Tom Beneze, the facility's intelligence officer, that he begin the investigation as to Plaintiff's classification. (Ex. A ¶ 15.) Plaintiff, however, contends that Defendant did no such thing, as the investigation was already underway. ( See Beneze Dep. [Ex. G] 22:5-15.)1 Plaintiff further contends that there is no informal investigative process for an administrative segregation hearing. (Ex. G 9:7-9.)

1 I cannot consider Plaintiff's contention that as he was gathering his belongings to return to general population, Sergeant Cocharon of CTCF informed him that he would not be allowed back to general population and that Defendant continued his removal indefinitely, because it constitutes inadmissible hearsay. See Bryant v. Farmer's Ins. Exch., 432 F.3d 1114, 1122 (10th Cir.2005).

*2 Administrative Regulation (AR) 600-01, the controlling document for removing a prisoner from population, provides: "The offender shall be returned to the general population within ten working days after removal, unless reclassification, disciplinary, or administrative segregation procedures have been initiated. In the event that any one of these procedures has been initiated, the time limits of the applicable policy shall be followed." (Administrative Regulation (AR) 600-01(IV)(M)(1)(d) [Ex. A, Attachment 2]). The introduction of narcotics, or attempt thereof, into a facility is treated very seriously in the prison system because such actions can jeopardize the safety and security of other offenders and staff within the facility. Administrative segregation is used, in part, to manage offenders who pose a threat to the security of the facility. There is no language in AR 600-01 that grants Defendant the authority to continue a removal from population order, but Defendant claims it is inherent in her job duties and responsibilities.

Plaintiff wrote Defendant at least one letter. Defendant claims she received only one letter (Ex. A ¶ 16; Ex. O ¶ 2), written while Plaintiff was in segregation pending the administrative segregation process. Plaintiff, on the other hand, asserts that he wrote four letters while in punitive segregation pending the result of the investigation into his COPD violation, and that the letter to which Defendant refers was dated December 15, 2007 (Ex. F ¶ 3).2 The letter or letters intended to appeal Plaintiff's removal from population and placement in segregation, and contained allegations that Plaintiff was being unfairly targeted due to his race. Plaintiff also claims he said he had been targeted based on religion. ( See Ex. F ¶ 8.) In the December 15 letter (or, according to Defendant, the only letter), Plaintiff referred to Defendant as the "great one" and "superior one."

2 The evidence presented by Plaintiff is not entirely clear that the December 15 letter came last in time, but there is that implication in the presentation of evidence and in Plaintiff's response to the Motion. Because of the deference I must give to Plaintiff in construing the facts in this Motion for Summary Judgment, I will view the facts liberally as if this letter was the last in time.

After receiving the letter or letters, Defendant spoke with Plaintiff on December 18, 2007. Defendant claims she visited Plaintiff in segregation to explain to him that his time in segregation was extended pending a classification review. (Ex. A ¶ 21.) Plaintiff claims that Defendant, together with Lieutenant Beneze, brought Plaintiff to the hearing room on December 18, 2007, and confronted him about the letters. (Ex. F ¶ 19.) No member of the hearing board was present during this conversation. During this conversation Plaintiff apologized for writing the letter in question, but again suggested that he was a victim of unfair treatment and discrimination by Defendant. Plaintiff contends that Defendant responded that CTCF "is her prison, " "that she will treat any prisoner how ever [sic] she sees fit, " that Plaintiff was calling her a racist, and that she would send him to the Colorado State Penitentiary, CDOC's maximum administrative segregation facility, and have him locked in administrative segregation for several years. (Denson Aff. [Ex. F] ¶¶ 14, 16.) The parties dispute whether Plaintiff referred to self-injurious behavior during this conversation and whether Defendant placed him on suicide watch. ( See Ex. A ¶¶ 22-24; Ex. F. ¶¶ 18-20.)

*3 Plaintiff received a Notice of Administrative Segregation Hearing on January 8, 2011, which changed his official status from removed from population, to segregated prior to an administrative segregation hearing. The hearing was conducted on January 11, 2008. A three-member panel, consisting of Lieutenant J. Evans, Lieutenant D. Brightwell, and committee chairperson Dave Allen, determined that there was substantial evidence justifying Plaintiff's placement in administrative segregation. Specifically, the panel found that Defendant was attempting to have drugs introduced into CTCF by a female visitor, and that his conduct posed a serious threat to the security of the facility.

The parties have submitted the audio recording of the hearing. (Attachment to Ex. B.) I have listened to the recording to the best of my ability, though I note that it is not clearly audible in places. During the hearing, Plaintiff made a six-minute statement through which he stated his defenses against placement in administrative segregation, and was given an opportunity to present further evidence. Before the panel deliberated, Nona O'Malley, the initiating employee for the hearing, stated that she "would like the board to consider that [Plaintiff] had been report-free for... almost five years...." She also stated something with respect to the fact that the letter that led to his punitive segregation was merely found in his room, and she suggested an appropriate placement (which is unfortunately inaudible). Plaintiff contends that these statements suggest that she did not agree with the panel's decision to place him in administrative segregation.

On January 8, 2008, Plaintiff wrote the administrative segregation committee to request that the letters he wrote to Defendant be presented as evidence at the hearing. (Ex. B, Attachment G; Ex. F ¶ 22.) Plaintiff contends that this letter was written before the hearing, and that he never received copies of the letters or was allowed to present them at the hearing. (Ex. F ¶¶ 22-23.) In the audio recording of the hearing, it is evident that when asked about evidence to present, Plaintiff mentioned letters he had written to various individuals, including the four letters to Defendant. (Attachment to Ex. B.)

On January 23, 2008, Plaintiff appealed the decision to the facility's Administrative Head, who upheld the decision on February 12, 2008. Plaintiff was housed in administrative segregation after the hearing until March 28, 2008, when he was transferred to CSP. Plaintiff was housed in administrative segregation at CSP until October 28, 2008. It is undisputed that Defendant initiated the reclassification process that led to Plaintiff's placement in administrative segregation, and that he would have returned to population had Defendant not initiated this process.

The conditions of Plaintiff's segregation while he was in administrative segregation were the same as when he remained removed from population prior thereto. CDOC states that there is a dramatic difference between the conditions of confinement in administrative segregation as compared to general population. Plaintiff was placed in a cell approximately eight feet by ten feet, to which he was confined for twenty-three hours per day, with only one hour allotted for exercise five days a week. The lights in his cell remained on for twenty-four hours per day. He was afforded limited contact with other inmates and prison personnel. Furthermore, administrative segregation in the CDOC system has no definite timeline for release. Prisoners may spend their entire period of incarceration in administrative segregation, and on average, they spend a minimum of eighteen months in administrative segregation. After his time in administrative segregation Plaintiff suffered blood clots and blood flow problems in his legs, has been diagnosed with mental illness, and suffers from anxiety, fearfulness, and depression.

ANALYSIS

*4 Plaintiff contends that Defendant violated his First Amendment right against relation and Fourteenth Amendment3 right to procedural due process. Plaintiff alleges that Defendant violated these rights through two separate acts: (1) the decision to continue his removal from population on December 17, 2007, until January 8, 2008, and (2) the "orchestration" of Plaintiff's "indefinite placement in administrative segregation, " which lasted until October 28, 2008. (Resp.13.) Defendant has moved for summary judgment on all of Plaintiff's claims. Defendant denies having violated any of Plaintiff's constitutional rights, and additionally raises the defense of qualified immunity.

3 Plaintiff actually says "First and Eighth Amendment Rights" (Resp. 13-14), but there are no allegations of cruel and unusual punishment in violation of the Eighth Amendment. Rather the allegation is violation of procedural due process, which is provided by the Fourteenth Amendment.

A. Summary Judgment Standard

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the... moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "When applying this standard, [the court must] view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000) (quotation omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. (quotation omitted).

"A fact is material' if, under the governing law, it could have an effect on the outcome of the lawsuit." E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000). "A dispute over a material fact is genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented." Id.

The burden of showing that no genuine issue of material fact exists is borne by the moving party. Id. All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Sw. Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991).

In order to rebut a motion for summary judgment, an opposing party must present evidence permitted by Rule 56 setting forth specific facts that would be admissible at trial. Fed.R.Civ.P. 56(e)(2); Adams v. Am. Guarantee and Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000). Accordingly, speculation, opinion, or hearsay testimony is "not suitable grist for the summary judgment mill." Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.1995) (quotation omitted); see also Bryant, 432 F.3d at 1122 ("it is clear that (1) the content of summary judgment evidence must be generally admissible and (2) if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge."). In addition, "the court may not rely on the assertions of legal counsel for the existence of factual allegations." Dean v. Allstate Ins. Co., 878 F.Supp. 1397, 1401 (D.Colo.1993).

B. Qualified Immunity Standard

*5 "The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Toevs v. Reid, 685 F.3d 903, 910 (10th Cir.2012) (quotations omitted). "Thus, to avoid judgment for the defendant based on qualified immunity, the plaintiff must show that the defendant's actions violated a specific statutory or constitutional right, and that the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue." Id. (quotation omitted).

The court has discretion to address the two prongs of this analysis in whatever order is appropriate under the circumstances. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). I will exercise my discretion to address Plaintiff's two claims differently. With respect to the procedural due process claim, I find it appropriate to proceed straight to the prong of deciding whether Defendant committed a violation of Plaintiff's constitutional right that was clearly established. And with respect to the retaliation claim, I will address the alleged violation first and then turn to whether that violation was of a clearly established right.

The Tenth Circuit recently reviewed the standard for determining whether a violation is "clearly established":

Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains. It is not necessary, however, to find cases that are fundamentally similar or even materially similar, because officials can still be on notice that their conduct violates established law even in novel factual circumstances. The salient question is whether the state of the law at the time of the actions gave respondents fair warning that their conduct was unconstitutional.

Id. at 916 (internal quotations, alterations, and citations omitted).

C. Defendant's Involvement

As a preliminary matter, I must clarify the extent of Defendant's involvement in the pertinent events at issue here. Plaintiff contends that Defendant committed two separate violations of his constitutional rights: 1) the decision on December 17, 2007, to continue his removal from population, which lasted until January 8, 2008, and 2) the "orchestration" of Plaintiff's "indefinite placement in administrative segregation, " which lasted from January 8, 2008, until October 28, 2008. (Resp.13.)

It is undisputed that Defendant made the decision to keep Plaintiff in segregation after the December 17, 2007 hearing on punitive segregation. It is also undisputed that Defendant initiated the reclassification process and that Plaintiff would have returned to population had this not occurred. However, Plaintiff simply has not produced evidence to support his allegations that Defendant "orchestrated [his] indefinite placement in administrative segregation, " prevented Plaintiff from having a meaningful opportunity to present evidence against his placement during the January 11, 2008 hearing, and had already determined the decision as to his placement prior to the hearing. ( See, e.g., Resp. 13.) The uncontroverted evidence with respect to Plaintiff's period of administrative segregation after January 11, 2008 is the following:

*6 • On January 11, 2008, a three-member panel determined that there was substantial evidence justifying Plaintiff's placement in administrative segregation. Specifically, the panel found that Defendant was attempting to have drugs introduced into CTCF by a female visitor, and that his conduct posed a serious threat to the security of the facility. At the hearing, Plaintiff made a six-minute statement and was given an opportunity to present further evidence.

• On January 23, 2008, Plaintiff appealed this decision to the facility's Administrative Head, who upheld the decision on February 12, 2008.
• Plaintiff was housed in administrative segregation, first at CTCF, and then at the Colorado State Penitentiary (CSP), until October 28, 2008.

Plaintiff has presented no evidence that Defendant exerted any influence over the hearing and appeal process. The only pertinent factual contentions for which Plaintiff provides evidentiary support are: 1) Plaintiff's inability to present as evidence various letters, including letters to Defendant; 2) the statements of Nona O'Malley, the initiating employee for the hearing; and 3) the December 18, 2008 confrontation during which Defendant told Plaintiff she would sent him to CSP and have him held in administrative segregation for several years. Even accepting Plaintiff's contention that O'Malley's statements suggest disagreement with the panel's placement of Plaintiff in administrative segregation, the suggestion of one person's disagreement with the decision, along with an inability to present a specific form of evidence, is simply insufficient to support any reasonable inference that Defendant "orchestrated" the hearing and appeal process. And with respect to Defendant's alleged underlying threat, Plaintiff has presented no evidence that this threat was carried out in any way. I thus find that Defendant's involvement in the relevant events was limited to her decision to keep Plaintiff removed from population on December 17, 2008, until January 8, 2008. This determination informs my analysis of Plaintiff's claims going forward.

D. Due Process

"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). "In the penological context, not every deprivation of liberty at the hands of prison officials has constitutional dimension. This is so because incarcerated persons retain only a narrow range of protected liberty interests." Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir.2012). "A protected liberty interest only arises from a transfer to harsher conditions of confinement when an inmate faces an "atypical and significant hardship... in relation to the ordinary incidents of prison life."'" Id. (quoting Wilkinson, 545 U.S. at 221 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)) (alteration in original)).

*7 In Rezaq, the Tenth Circuit recently held that the proper approach to the liberty interest analysis "is a fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Id. at 1012. The court further guided: "In cases involving placement in nondisciplinary administrative segregation, it is appropriate to compare the conditions at issue with those ordinarily experienced by inmates with similar records and sentences. In making this assessment, we are mindful that nondisciplinary administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." Id. (quotation omitted).

The liberty interest analysis includes four "potentially relevant, nondispositive factors" in the liberty interest analysis: (1) whether "the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation"; (2) whether "the conditions of placement are extreme"; (3) whether "the placement increases the duration of confinement"; and (4) whether the placement is indeterminate. Id. Both parties have couched their arguments within these four factors, and I find it appropriate to apply the four factors in my analysis. See id.

In arguing that Defendant's violation of his procedural due process rights is clearly established, Plaintiff relies exclusively on the Supreme Court's holding in Wilkinson. However, in Rezaq the Tenth Circuit observed with respect to Wilkinson that "it is clear that the Supreme Court did not intend for courts to make side-by side comparisons of challenged conditions and the conditions in that case." Id. at 1015. Furthermore, the court "read Wilkinson to say that extreme conditions in administrative segregation do not, on their own, constitute an atypical and significant hardship' when compared to the ordinary incidents of prison life.'" Id. (quoting Sandin, 515 U.S. at 484). Rather, the Supreme Court in Wilkinson "ultimately placed the weight of its analysis on the indeterminate duration of confinement and the effect the placement had on an inmate's parole eligibility." Id. at 1012-13 (citing Wilkinson, 545 U.S. at 214).

Here, Plaintiff "admits that his placement in administrative segregation does not currently impact the length of his confinement." (Resp.16.) Thus, with the recent guidance from the Tenth Circuit in mind, I turn to the application of the remaining three of four relevant factors, and ultimately find that Defendant is entitled to qualified immunity because there is no clearly established law supporting a finding that Plaintiff possessed a protected liberty interest.

1. Relation to Legitimate Penological Interest

Plaintiff contends that his placement in administrative segregation did not relate to or further a legitimate penological interest, but rather that a reasonable jury could infer that Defendant continued his removal from population in retaliation for the accusations of racism in his letters. Citing the Supreme Court's "admonition that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment, '" the Tenth Circuit has held that "it is sufficient to show a reasonable relationship between isolation and the asserted penological interests." Rezaq, 577 F.3d at 1014 (quoting Sandin, 515 U.S. at 482).

*8 Notwithstanding my findings below with respect to Plaintiff's retaliation claim, and given the level of deference afforded to Defendant, I find that there is a reasonable relationship between Plaintiff's continued removal from the general population on December 17, 2007, and the interest asserted by Defendant in maintaining the safety and security of the prison. It is undisputed here that the introduction of narcotics, or attempt thereof, into a facility is treated very seriously in the prison system because such actions can jeopardize the safety and security of other offenders and staff within the facility.

Plaintiff argues that Defendant did not have authority to remove him from population and violated regulations by not returning Plaintiff to population within ten days of the end of punitive segregation. However, even considering only this evidence and disregarding Defendant's evidence that her actions were within her inherent authority, this alleged violation of regulations does not support a finding of a clearly established constitutional violation. While Plaintiff has cited to authority stating that "[p]rison officials must follow their own policies, " Muniz v. Richardson, 371 F.Appx. 905, 909 (10th Cir. Mar. 31, 2010) (citing Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir.1996)), Defendant has also pointed to authority in the due process context holding that violations of prison regulations do not constitute cognizable constitutional claims. See Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir.2002) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)); see also Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993) (holding in the Eighth Amendment context that "a failure to adhere to administrative regulations does not equate to a constitutional violation." (citing Davis v. Scherer, 468 U.S. 183, 194 (1984))). Thus, there is no clearly established law supporting a finding of a constitutional violation here, and the first factor weighs in favor of a finding of qualified immunity.

2. Extremity of Conditions

The factor of whether conditions of confinement are extreme also weigh toward a finding of qualified immunity. The conditions of Plaintiff's confinement were similar to those in Wilkinson and in a recent unpublished Tenth Circuit case. See Wilkinson, 545 U.S. at 223-24 ("almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room."); Stallings v. Werholtz, No. 12-3028, 2012 WL 2626942, at *4 (10th Cir. July 6, 2012) ("Stallings alleges he was kept in a seventy-square-foot cell for at least twenty-three hours a day. He also explains that he is limited to five hours outside his cell each week, and any visits with family are conducted via videoconferencing."). As stated by the Supreme Court in Wilkinson and more recently emphasized by the Tenth Circuit in Rezaq and Stallings, these conditions do not support a finding of a protected liberty interest, because they are substantially similar to conditions routinely imposed in solitary confinement or administrative segregation. Wilkinson, 545 U.S. at 224; Rezaq, 677 F.3d at 1015; Stallings, 2012 WL 2626942, at *4. Plaintiff also has presented evidence that Defendant was responsible for his placement in suicide watch, but this evidence would not advance Plaintiff's claim across the threshold to a finding of a clearly established constitutional violation.

3. Indeterminacy of Placement

*9 Again, the Supreme Court's holding in Wilkinson was determined by the third and fourth factors that the placement increased the duration of confinement and was indeterminate. Rezaq, 677 F.3d at 1012-13 (citing Wilkinson, 545 U.S. at 214). Plaintiff has conceded the third element, so I turn to the analysis of whether his confinement was indeterminate. Defendant kept Plaintiff in removal from population on December 17, 2007, Plaintiff received a Notice of Administrative Segregation Hearing on January 8, 2008, and the hearing occurred on January 11, 2008. My analysis does not go past this point in time, because of my finding above that Defendant was not involved in the administrative segregation hearing. Confinement of three weeks is not indeterminate. See, e.g., Rezaq, 677 F.3d at 1016 (availability of twice-yearly reviews suggests that confinement is not indefinite); cf. Wilkinson, 545 U.S. at 224 (establishment of liberty interest was supported by placement that was indefinite and, after an initial 30-day review, reviewed just annually). Thus, this factor also weighs toward a finding of qualified immunity.

Summary

Having applied the four factors relevant to the liberty interest analysis, and particularly in light of the recent guidance from the Tenth Circuit in Rezaq, I find that there is no clearly established law supporting a finding that the conditions of Plaintiff's confinement from December 17, 2007 to January 8, 2008 constituted a protected liberty interest. Thus, the procedural due process inquiry ends here, and I find that Defendant is entitled to qualified immunity and summary judgment on this claim.

E. Retaliation

I now turn to Plaintiff's claim that Defendant's decision to keep him in segregation on December 17, 2007 was in retaliation to the letters he had written her, in violation of his First Amendment rights. "Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights." Allen v. Avance, No. 11-6102, 2012 WL 2763508, at *5 (10th Cir. July 10, 2012) (quoting Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998) (internal quotation marks and alterations omitted)). A plaintiff must establish three elements to prove a First Amendment retaliation claim:

(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.

Id. (quoting Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir.2007)).

Defendant's argument focuses on the third element, and in any regard I find that Plaintiff has produced sufficient evidence to establish the first and second elements. With respect to the first element, Plaintiff has not pointed to any cases specifically finding that a letter to a prison official is constitutionally protected activity, but it is clearly established that grievances are constitutionally protected. See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir.2010). Furthermore, in Fogle v. Pierson, 435 F.3d 1252 (10th Cir.2006), the plaintiff had alleged that he was "complaining" about his placement in administrative segregation and threatening to file suit, and that in response, an official told him that if he did not stop complaining he would be transferred to long-term administrative segregation. The Tenth Circuit held that these "complaints' could be referring to internal prison appeals and/or formal grievances to prison officials" and that they were constitutionally protected activity. Id. at 1264. I find that Plaintiff's letters to Defendant, which undisputedly "intended to appeal his removal from population and placement in segregation" and "to express his grievance" regarding her racist treatment of him (Resp. 10; see also Reply 4 (admitting these facts)), constitute constitutionally protected activity. I find that the second element is also established here, as placement or continued placement in segregation would "chill a person of ordinary firmness" from continuing to file complaints. See, e.g., Fogle, 435 F.3d at 1264. I find that this is particularly true in light of the evidence presented by Plaintiff that Defendant confronted him about his letters and said she would send him to CSP and have him locked in administrative segregation for several years.

*10 "The third prong requires the plaintiff to allege specific facts that, if credited, establish that but for' the defendant's improper retaliatory motive the incidents to which he refers, including the disciplinary action, would not have taken place.'" Id. (quoting Peterson, 149 F.3d at 1144). "Substantial motivation" can be inferred where evidence shows that (1) the defendant was aware of the protected activity, (2) the plaintiff directed his complaint to the defendant's actions, and (3) the alleged retaliatory act was in close temporal proximity to the protected activity. Id. (citing Gee, 627 F.3d at 1189). I draw this inference here for Plaintiff. His evidence shows that he wrote several letters to Defendant regarding his segregation and her racist treatment, the latest of which was dated December 15, 2007; that Defendant decided to keep him removed from population on December 17, 2007; and that Defendant confronted him about the letters on December 18, 2007 and told him she would give him "several years" of administrative segregation.

Furthermore, Defendant is not entitled to qualified immunity on Plaintiff's retaliation claim. "It is well settled that prisoners cannot be retaliated against when they exercise their First Amendment rights." Id. (citing Gee, 627 F.3d at 1189; Fogle, 435 F.3d at 1264; Peterson, 149 F.3d at 1144; Penrod v. Zavaras, 94 F.3d 1399, 1404-05 (10th Cir.1996); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990)). Accordingly, I find that Plaintiff's retaliation claim survives summary judgment.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that Defendant Major Linda Maifeld's Motion for Summary Judgment [ECF No. 97], filed September 15, 2011, is GRANTED in part and DENIED in part. It is granted as to Plaintiff's procedural due process claim and denied as to his retaliation claim.

Attorneys and Law Firms

Abid Riaz Qureshi, Latham & Watkins LLP, Washington, DC, for Plaintiff.

Richard Carson Vorhis, Kate Elizabeth Dwyre, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

*1 Before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, Plaintiff's Motion for Summary Judgment will be granted and the Motion for Summary Judgment by defendants will be denied.

I. BACKGROUND

Alfredo Prieto ("Prieto" or "plaintiff') is an inmate at Sussex I State Prison ("SISP") in Waverly, Virginia, awaiting execution for two capital murder convictions. Like all capital offenders in Virginia, 1 plaintiff is confined in a separate housing unit commonly known as "death row." He has been there since October 30, 2008. See Defs.' Mem. in Supp. [hereinafter Defs.' Mem.], Ex. 1, 4,

1 As of October 2013, plaintiff was one of only eight capital offenders in the state, all of whom are housed at SISP. See Pl.'s Mem. in Supp. of Summ. J. [hereinafter Pl.'s Mem.], Ex. 19, at 75:9-10.

Conditions on death row are more restrictive than incarceration in the general population housing units at SISP, which is a maximum-security facility. The former amount to a form of solitary confinement: On average, plaintiff must remain in his single cell for all but one hour of the day. See Pl.'s Mem., Ex. 27 ("Virginia Department of Corrections, Operating Procedure 460.A"); see also id. at Ex. 1, at 91:1-15. That cell measures 71 square feet, id. at Ex. 16, at 4, and features only a narrow, mesh-covered window for natural light. It is otherwise illuminated by a main light mounted on the wall. In the evening hours, when the main light is turned off, a nightlight remains on in plaintiff's cell, as do the pod lights immediately outside of it, ensuring that his cell is never completely dark. See id. at Ex. 15, at 57:14-58:7. Plaintiff is allowed to leave his cell for just one hour of outdoor recreation approximately five days per week. Id. at Ex. 27, at 6. During that time, however, he is limited to a similarly-sized outdoor cell with a concrete floor and no exercise equipment. See id. at Ex. 1, at 92:1-19. Plaintiff is not allowed to use the gymnasium or prison yard, nor is he given an opportunity for in-pod recreation. See id. at Ex. 1, at 91:1-25. Plaintiff may leave his cell for a ten-minute shower three days per week. Id. at Ex. 27, at 7. He may also purchase a television and compact disc player for use in his cell, as well as request delivery of certain books from the law library. See Defs.' Mem., Ex. 1, ¶¶ 11-12.

Perhaps the most significant restrictions are those depriving plaintiff of human contact. He must spend almost all of his time alone. Although death row houses seven other inmates, they are separated by at least two (and often many more) empty cells within the 44-unit pod. See Pl.'s Mem., Ex. 15, at 69:8-24. Solid metal doors with no openings apart from small slits substantially impede any communication among death row inmates. See id. at Ex. 26 (Photograph of Cell Interior). In addition, plaintiff takes all three daily meals in his cell. Id. at Ex. 27, at 4. Visitation opportunities are limited to non-contact visits from immediate family members on weekends in a room with a glass partition, id. at Ex. 27, at 7, though in actuality no one ever comes, id. at Ex. 15, at 107:20-108:2. Thus, plaintiff's only regular source of human contact is prison officials, including those tasked with administering medical and mental health services in his cell. He is not allowed to join general population inmates for vocational, educational, or behavioral programming, nor is he allowed to attend group religious services. See id. at Ex. 1, at 91:3-15.

*2 Capital offenders are automatically and permanently placed in such restrictive conditions as a matter of policy-contrary to the practice for all other inmates in Virginia. Upon entering the prison system, the latter are assigned an initial security classification between level one (minimum risk) and level five (maximum risk) by the Virginia Department of Corrections ("VDOC").2 See id. at Ex. 3, at 30:11-20. This classification is based on eight distinct factors, including an individual's history of institutional violence, history of escape attempts, and "other stability factors."3 See id. at Ex. 7 ("Virginia Department of Corrections, Operating Procedure 830.2, Attachment 1"). Numerical values are attached to each factor, the sum of which is the score used to determine the level of risk. See id. at Ex. 2 ("Virginia Department of Corrections, Operating Procedure 830.2"); see also id. at Ex. 3, at 44:18-25 (describing the initial classification score as the "primary" determinant of an inmate's risk level). Noncapital offenders are then placed in facilities commensurate with the risk they present, though VDOC officials retain some override authority in exceptional circumstances. See id. at Ex. 2, at 5. These placements are subject to modification at any time for a number of reasons. See id. at Ex. 2, at 6. In addition, the VDOC conducts a classification review for each inmate on an annual basis, providing an opportunity to move to a lower security level. See id. at Ex. 8 ("Virginia Department of Corrections, Operating Procedure 830.1").

2 An additional security level-known as level "S"exists for certain inmates assigned to a segregated housing unit within a level-five facility. See Pl.'s Mem., Ex. 1, at 46:18-25.
3 The factors are published in the VDOC's "Scoring Guide" for the "Initial Offender Security Level Classification." They are as follows: (1) history of institutional violence, (2) severity of current offense, (3) prior offense history severity, (4) escape history, (5) length of time remaining to serve, (6) current age, (7) prior felony convictions, and (8) other stability factors. Pl.'s Mem., Ex. 7.

Capital offenders, by contrast, receive no such initial security classification. Instead, based on sentence alone, they are automatically placed in restrictive conditions on death row at SISP. Id. at Ex. 2, at 5 ("Any offender sentenced to Death will be assigned directly to Death Row...."). Only a nominal classification is prepared for purposes of the prison computer system, yielding a final score of "99"-an arbitrary value signifying an offender's capital status-which corresponds to security level "X." Id. at Ex. 2, at 5; id. at Ex. 3, at 59:5-15. Capital offenders are never brought to a reception center, nor are they evaluated using the multi-factor scoring guide. See id. at Ex. 3, at 57:15-25. Thus, their sentence conclusively determines their placement. Once a capital offender arrives on death row, he remains there for as long as it takes to carry out his sentence, see id. at Ex. 2, at 5, in most cases more than six years. Capital offenders are ineligible for any subsequent classification review by the VDOC. Id. at Ex. 2, at 5 ("No reclassification will be completed."). In other words, their placement is permanent. The only exception is for a capital offender whose sentence is commuted or whose conviction is overturned, at which point he is reclassified pursuant to the usual review process. Defs.' Answer, ¶ 5.

*3 On October 24, 2012, plaintiff, initially proceeding pro se, brought a civil action under 42 U.S.C. § 1983 challenging his placement and continued confinement in the restrictive conditions on death row. See Compl. He named as defendants Harold C. Clarke, the Director of the VDOC, David Robinson, the Chief of Corrections Operations for the VDOC, and Eddie L. Pearson, the Chief Warden at SISP (collectively, "defendants").

Plaintiff's complaint made two particular allegations. First, he claimed that SISP's visitation policies, which prohibit virtually all contact visits for death row inmates, violated his rights under the Eighth Amendment. Second, he claimed that his automatic and permanent placement in the restrictive conditions of confinement prevailing on death row violated his rights under the Due Process Clause of the Fourteenth Amendment. Accordingly, plaintiff sought a declaration that defendants must provide him with additional outdoor recreation opportunities and an appropriate program for inmates not facing disciplinary measures.

On November 2, 2012, the Court issued a Memorandum Opinion and Order dismissing plaintiff's Eighth Amendment claim pursuant to 28 U.S.C. § 1915A(b)(1). See Mem. Op. & Order. Plaintiff appealed but ultimately failed to prosecute, resulting in a dismissal of the proceeding. See Prieto v. Clarke, No. 12-8025 (4th Cir. Feb. 6, 2013). Only his due process claim remains before the Court at this point in the litigation.

On January 25, 2013, defendants filed a Motion for Summary Judgment with respect to the remaining claim. Plaintiff, represented by pro bono counsel, opposed the motion as premature because he had not been given an opportunity to conduct discovery. Pl.'s Mem. Opposing Summ. J. & Requesting Disc. Pursuant to Fed.R.Civ.P. 56(d). The Court agreed with plaintiff, and issued an Order denying defendants' motion without prejudice. Order of Feb. 20, 2013. The parties then proceeded to conduct extensive discovery.

At the close of discovery, the parties filed the instant cross-motions for summary judgment. Pl.'s Mot. for Summ. J.; Defs.' Mot. for Summ. J. In support of his motion, plaintiff argues that he has a constitutionally protected liberty interest in avoiding permanent assignment to his present conditions of confinement on death row. Plaintiff further argues that he was deprived of his liberty interest by the VDOC's automatic assignment process, which did not afford him notice of the reasons for his assignment or an opportunity to contest it. Accordingly, plaintiff seeks relief only in the form of an individualized classification determination using procedures that are the same or substantially similar to the procedures used for all non-capital offenders. He has indicated a belief that, if so classified, his score would render him eligible for assignment to a general population unit at a lower-security facility.

Conversely, in support of their cross-motion, defendants argue that the conditions in Virginia's death row are not sufficiently severe to implicate a protectable liberty interest in avoiding placement there. To the extent such an interest exists, defendants further argue that the existing classification system for capital offenders provides whatever minimal process may be due because plaintiff's interest in avoiding certain onerous conditions is dwarfed by defendants' interest in safe and efficient penal administration.

II. STANDARD OF REVIEW

*4 Summary judgment is appropriate where the record demonstrates "that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the record in the light most favorable to the nonmoving party, and must draw all reasonable inferences in its favor as well, see Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir.2002); however, "the mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient, Anderson, 477 U.S. at 252; see also Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir.2008). Accordingly, to survive a motion for summary judgment, "[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a question of fact must be adequate to support a jury verdict." Thompson Everett, Inc. v. Nat'l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir.1995) (citation omitted).

III. DISCUSSION

The sole issue before the Court is whether plaintiff's automatic and permanent placement in the restrictive conditions of confinement prevailing in Virginia's death row violates his Fourteenth Amendment due process rights. The analysis proceeds in two parts, looking first at whether a liberty interest exists and then at whether plaintiff was deprived of that interest without sufficient procedural protections.

A. Protectable Liberty Interest

The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." It is well settled that due process protections extend to inmates seeking to avoid certain conditions of confinement, albeit in a circumscribed fashion, the contours of which the Supreme Court has defined in two seminal decisions.

In Sandin v. Conner, 515 U.S. 472 § 1995), the Court considered whether an inmate's placement in disciplinary segregation for 30 days implicated a protectable liberty interest. Id. at 486. Focusing on the nature of the alleged deprivation, the Court held that no such interest arose for three reasons: the inmate's "disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody"; the inmate's segregation "did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction"; and the inmate's segregation did not "inevitably affect the duration of his sentence." Id. at 486-87. The Court also explained that a limited liberty interest would arise in the event that an inmate's conditions "impose[ ][an] atypical and significant hardship... in relation to the ordinary incidents of prison life." Id. at 484.

*5 The Court returned to the due process issue in Wilkinson v. Austin, 545 U.S. 209 (2005). There, the Court considered whether an inmate's assignment to a maximum-security prison with "highly restrictive conditions" sufficed to create a liberty interest under the Sandin test. Id. at 213. The Court held that it did based in large measure on differences between the conditions at the maximum-security prison and "most [other] solitary confinement facilities." Id. at 224. At the former, inmates were denied virtually all sensory and environmental stimuli, as well as many basic forms of human contact. Id. at 214. The Court then identified two additional factors: "First is the duration. Unlike the 30-day placement in Sandin, placement at [the maximum-security prison] is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration." Id. at 224. "While any of these conditions standing alone might not be sufficient to create a liberty interest, " the Court concluded, "taken together they impose an atypical and significant hardship within the correctional context." Id.

Together, Sandin and Wilkinson conclusively establish that segregated confinement can trigger due process protections in certain circumstances. These decisions further establish that "the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is... the nature of those conditions themselves in relation to the ordinary incidents of prison life." Id. at 223 (internal quotation marks and citation omitted). Only conditions that constitute an "atypical and significant hardship" suffice. It is evident that this inquiry is necessarily context-dependent and demands fact-by-fact consideration. See, e.g., Farmer v. Kavanagh, 494 F.Supp.2d 345, 356 (D.Md.2007) (" Wilkinson does not set forth a checklist of factors, all of which must be present, to hold that a protected liberty interest... exists, but instead directs lower courts to consider the totality of circumstances in a given facility.").

By its terms, the "atypical and significant hardship" test requires courts to first "identify[ ] the baseline from which to measure what is atypical and significant in any particular prison system." Wilkinson, 545 U.S. at 223. Although this threshold issue has caused considerable consternation in the circuit courts, see id. (acknowledging "the difficulty of locating the appropriate baseline" from which to measure but declining to "resolve the issue"), it is clear that the Fourth Circuit uses a facility's "general prison population" as the relevant baseline, see Beverati v. Smith, 120 F.3d 500, 504 (4th Cir.1997). Here, that means the Court must look to the general population units at SISP, where Prieto would presumptively be placed but for his automatic separation as a consequence of his death sentence.

*6 The "atypical and significant hardship" test then requires courts to perform a comparison to determine whether an inmate's confinement deviates sufficiently from the baseline. Consistent with this task, courts have considered whether the conditions in question are particularly extreme or restrictive, whether the duration of confinement is excessive or indefinite, whether an inmate's parole status is negatively affected, and whether an inmate's confinement in such conditions bears a rational relationship to legitimate penological interests. See, e.g., Harden-Bey v. Rutter, 524 F.3d 789, 793 (6th Cir.2008); Estate of DiMarco v. Wyo. Dep't of Corrs., 473 F.3d 1334, 1342 (10th Cir.2007); Skinner v. Cunningham, 430 F.3d 483, 487 (1st Cir.2005). The Court will consider each of these factors in turn.

Plaintiff's conditions of confinement on death row are undeniably extreme and atypical of conditions in the general population units at SISP. He must remain alone in his cell for nearly 23 hours per day. See Pl.'s Mem., Ex. 1, at 91:1-15. The lights never go out in his cell, although they are scaled back during the overnight hours. See id. at Ex. 15, at 57:14-58:7. Plaintiff is allowed just five hours of outdoor recreation per week, id. at Ex. 27, at 6, and that time is spent in another cell at best slightly larger than his living quarters, id. at Ex. 1, at 92:1-19. He otherwise has no ability to catch a glimpse of the sky because the window in his cell is a window in name only. Id. at Ex. 26. Nor can he pass the time in the company of other inmates; plaintiff is deprived of most forms of human contact. See id. at Ex. 1, at 91:3-15. His only real break from the monotony owes to a television and compact disc player in his cell and limited interactions with prison officials. Such dehumanizing conditions are eerily reminiscent of those at the maximum-security prison in Wilkinson. See 545 U.S. at 214. More importantly, the conditions on death row are a good deal more restrictive than those experienced by general population inmates at SISP.

Conditions for the latter group-the baseline from which to measure in this instance- differ in almost every meaningful respect. First, general population inmates spend substantial time every day out of the confines of their cells. For example, they are given approximately 80 minutes of outdoor recreation four or five days per week, and they have access to the open prison yard, complete with a jogging track and basketball courts. See Pl.'s Mem., Ex. 15, at 28:24-29:18. Second, general population inmates enjoy the near-constant company of others. They receive additional "in-pod recreation" time, during which they may socialize and play games together in a common area. See id. at Ex. 15, at 34:15-25. This is to say nothing of the benefits of two communal meals per day, regular contact visits from family and friends, and group religious and educational programming. In other words, the experience for general population inmates at SISP is hardly a solitary one.

*7 Comparing these conditions to plaintiff's experience, see Beverati, 120 F.3d at 504, leads the Court to conclude that the conditions on death row are uniquely severe. Whereas general population inmates are subject to a difficult but ultimately social existence, death row inmates like plaintiff are denied all freedom of movement and most freedom to interact with others. There can be no dispute that "almost every aspect" of a death row inmate's life "is controlled and monitored." Wilkinson, 545 U.S. at 214. It is true that plaintiff is not deprived of all environmental and sensory stimuli or human contact. Cf. id. ("It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact."). He is allowed to have a television and compact disc player in his cell, and he may have certain books delivered from the law library. See Defs.' Mem., Ex. 1, ¶¶ 11-12. Plaintiff also has occasional contact with guards and other prison officials administering health services. But these rudimentary privileges do not mitigate the overwhelming fact of isolation-plaintiff is left alone in a small cell for nearly every hour of every day.

The Court likewise finds it significant that plaintiff has already spent five years in this placement, and there is no end in sight. Plaintiff has not even begun federal post-conviction proceedings, which are likely to play out over the course of several years and further delay the carrying out of his sentence.4 For all practical purposes, his placement "is for an indefinite period of time, " just as in Wilkinson. 545 U.S. at 214-15.

4 Plaintiff filed a petition for a writ of habeas corpus in state court, which was denied by the Virginia Supreme Court on September 12, 2013. See Prieto v. Warden of the Sussex I State Prison, 748 S.E.2d 94 (Va.2013). Plaintiff has not yet pursued federal habeas relief. The Court also finds it unreasonable that the VDOC refuses to afford plaintiff any classification review as a matter of policy in the meantime. Pl.'s Mem., Ex. 2, at 5; cf. Wilkinson, 545 U.S. at 224 ("Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually."). Defendants do not dispute this fact. The VDOC's no-review policy guarantees that plaintiff will ultimately remain in his current conditions for a period of years. See Defs.' Mem. 19 (noting that most death row inmates are confined for "between 6-9 years"). Thus, on its own, the excessive duration here weighs strongly in favor of finding that a cognizable liberty interest exists. cf. Marion v. Columbia Corr. Inst., 559 F.3d 693, 699 (7th Cir.2009) ("[O]ther courts of appeals have held that periods of confinement that approach or exceed one year may trigger a cognizable liberty interest without any [specific] reference to conditions.").

Plaintiff's indefinite, long-term confinement in severe conditions is even more weighty when compared to the duration of confinement for general population inmates placed in administrative or disciplinary segregation. All inmates at SISP may be placed in segregation for an interval of time in which they experience conditions virtually identical to those on death row. Pl.'s Mem., Ex. 6 ("Virginia Department of Corrections, Operating Procedure 861.3")/at 12. As such, occasional confinement in restrictive conditions is an "ordinary incident of prison life" at SISP. See Wilkinson, 545 U.S. at 223. The important difference is that the length of that interval is strictly limited for non-capital offenders. Inmates "may be assigned to Disciplinary Segregation for a maximum period of 30 days for each major rule violation." Pl.'s Mem., Ex. 6, at 12. In addition, those inmates receive a status review within 72 hours of arrival, and every 30 days thereafter in the event of an extended placement for multiple violations. See id., Ex. 15, at 137:20-138:12. By contrast, plaintiff has not been granted a single review in five years, nor will he ever get one without a change in policy. While other inmates can be sure that they will be considered for reassignment to a general population unit on a defined scheduled, plaintiff has no such hope. In the end, he could go a decade or more without any opportunity to object to his restrictive conditions of confinement or otherwise be heard on the matter.

*8 Finally, the Court finds that the nature of plaintiff's confinement furthers few, if any, legitimate penological goals. See DiMarco, 473 F.3d at 1342 (considering whether "the segregation relates to and furthers a legitimate penological interest"); Skinner, 430 F.3d at 486 (considering whether an inmate's segregation "was rational"). For starters, it bears no clear relationship to any of the valid punitive, protective, or investigative goals that justify temporarily placing general population inmates in similar conditions. See Sandin, 515 U.S. at 485-86 (suggesting that most disciplinary segregation does not implicate a protectable liberty interest because discipline is to be expected in the prison context). Plaintiff has been by all accounts a model prisoner. Pl.'s Mem., Ex. 4, at 100:25-101:6; id. at Ex. 19, at 109:15-18. He has not engaged in any of the behaviors that would normally support placement in segregated confinement.

Nor is plaintiff's confinement well calibrated to further legitimate safety-and resource-related goals. The VDOC's policy toward death row inmates largely rests on two fundamental assumptions: first, that these inmates inherently present a greater risk to prison safety because they "have nothing to lose, " and second, that they are less deserving of limited prison resources because they will never reenter society. See, e.g., id. at Ex. 1, at 93:5-13; id. at Ex. 4, at 63:19; Defs.' Mem., Ex. 2, at 28:14-29:21. Neither assumption finds much support in the record. Death row inmates have obvious incentives to behave well and take rehabilitation seriously, including the possibility that new forensic evidence might undercut a conviction, a habeas petition might be granted, or that good behavior might improve the prospects of a commuted sentence. See Pl.'s Mem., Ex. 1, at 76:9-21.

These assumptions are also inconsistent with VDOC practices. Compare the treatment of inmates sentenced to death and those sentenced to life imprisonment without the possibility of parole. Although the VDOC's stated reasons for separating death row inmates and denying them programming apply with equal force to both classes, inmates serving life sentences are presumptively assigned to the general population units at SISP, where they may avail themselves of limited programming. In any event, the presence of legitimate safety concerns "does not diminish" plaintiff's liberty interest in avoiding particularly harsh conditions. See Wilkinson, 545 U.S. at 224 ("OSP's harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners. That necessity, however, does not diminish our conclusion that the conditions give rise to a liberty interest in their avoidance." (citation omitted)).

For these reasons, the Court concludes that plaintiff's conditions of confinement "taken together [ ] impose an atypical and significant hardship within the correctional context." Wilkinson, 545 U.S. at 224.

*9 Defendants contend that Sandin and Wilkinson dictate a different outcome here. They view those cases as establishing an exclusive list of three necessary factors that bear on the liberty interest analysis, see Defs.' Mem. 9, two of which have been discussed above-the degree of restriction and duration. The third factor is whether placement in the challenged conditions of confinement "disqualifies an otherwise eligible inmate for parole consideration." Wilkinson, 545 U.S. at 224. Plaintiff clearly has not been eligible for parole at any point and therefore has not had his sentence lengthened by his current placement. But defendants are wrong to suggest that this factor standing alone is dispositive under Sandin and Wilkinson. The "atypical and significant hardship" test is not so rigid; rather, the Supreme Court indicated that lower courts ought to consider the cumulative effect of several relevant factors. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.2003) (noting that the standard requires "case by case, fact by fact consideration"); Farmer, 494 F.Supp.2d at 356 (noting that Wilkinson "directs lower courts to consider the totality of circumstances in a given facility"). To read Sandin and Wilkinson any more narrowly would cabin those decisions to their facts. See Westefer v. Snyder, 422 F.3d 570, 590 (7th Cir.2005) ("Illinois' contention that the liberty interest identified in Wilkinson turned exclusively on the absence of parole constitutes... far too crabbed a reading of the decision.").

Moreover, the appropriate baseline in this case is not the conditions at the Halawa Correctional Facility ( Sandin ) or the Ohio State Penitentiary ( Wilkinson). To the contrary, plaintiff's conditions of confinement must be compared to the conditions experienced by general population inmates at SISP. Beverati, 120 F.3d at 504; see Wilkinson, 545 U.S. at 223 (describing the "touchstone of the inquiry" as "the nature of [the challenged] conditions themselves in relation to the ordinary incidents of prison life " (emphasis added)). On that score, the Court finds that the severity of the conditions on death row, the excessive duration of plaintiff's confinement in such conditions, and minimal legitimate penological justification outweigh the absence of negative parole effects, and impose an "atypical and significant hardship" on plaintiff. Accordingly, plaintiff has a protectable liberty interest in avoiding his current placement.

B. Process Due

Having found that a liberty interest exists, the next question is what process plaintiff is due before he may be placed in such conditions of confinement. Wilkinson, 545 U.S. at 224. It is important to bear in mind that plaintiff's constitutional rights are not violated by the imposition of the above-described hardship itself, but by the imposition of that hardship without sufficient procedural protections.

*10 At this step in the analysis, the Court must employ the familiar framework established in Mathews v. Eldridge, 424 U.S. 319 (1976). See Wilkinson, 545 U.S. at 224-25. The Mathews framework provides three components for courts to consider:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. (quoting Mathews, 424 U.S. at 335).

In the prison context, the Supreme Court has further held that due process is satisfied by providing "notice of the factual basis" for an inmate's placement and "allowing the inmate a rebuttal opportunity." Id. at 226 (describing notice and a fair opportunity to respond as "among the most important procedural mechanisms for purposes of avoiding erroneous deprivations"). This modest requirement-"informal, nonadversary procedures"-reflects an inmate's "limited" interest in avoiding erroneous placement in unusually restrictive conditions and the state's "dominant" interest in ensuring the safety of guards and inmates alike, maintaining prison security, and preserving scarce resources. Id. at 226-27.

Setting aside the parties' competing interests, the Court finds that the VDOC's automatic placement policy for capital offenders fails to provide even the most basic procedural protections. Plaintiff did not receive advance notice of the factual basis leading to his placement in segregated confinement, nor did he receive an opportunity to contest it. Cf. id. Instead, he was shuttled directly to death row at SISP, bypassing the initial security classification process followed for all other inmates (and its attendant safeguards). See Pl.'s Mem., Ex. 2, at 5 ("Any offender sentenced to Death will be assigned directly to Death Row...."). In other words, plaintiff was afforded no before-the-fact process at all. Defendants concede as much. Defs.' Resp. to Pl.'s Mot. for Summ. J. [hereinafter "Defs.' Resp."] 12 ("Plaintiff is classified as a death row offender simply by the existence of a court order imposing the penalty of death."). The automatic nature of the VDOC's assignment policy in fact guarantees that prison officials have no ability to provide a reasoned explanation of placement decisions or discretion to consider an inmate's rebuttal.

Likewise, the permanent nature of that policy forecloses any after-the-fact process. Cf. Skinner, 430 F.3d at 486 ("Due process, even where it is due, does not invariably mean process before the fact."). Plaintiff has had no subsequent opportunity to contest his placement because classification review is not available to capital offenders on any basis. Pl.'s Mem., Ex. 2, at 5 ("No reclassification will be completed."). The aggregate effect is that plaintiff is deprived of safeguards against erroneous placement in conditions that are more restrictive than necessary by virtue of his sentence alone. He has no forum in which to argue that he belongs in conditions more akin to those experienced by general population inmates at his maximum-security facility. Clearly, defendants have not provided even "informal, nonadversary procedures" in this instance. See Wilkinson, 545 U.S. at 226-27. The Court therefore concludes that defendants have failed to comply with the demands of due process.

*11 Defendants respond with a variety of counterarguments, none of which are persuasive. First, it is no answer that plaintiff's conviction for a capital offense ensures that he is properly placed on death row. See Defs.' Resp. 13 ("Given that the death sentenced offenders all are placed on death row, there is essentially no risk of error of an erroneous placement. The order from the sentencing court either sentences the defendant to death or it does not."). Defendants fail to distinguish among the multiple deprivations at play here. Plaintiff undoubtedly received process in the Virginia state courts before he was removed from free society; he does not argue otherwise. Instead, plaintiff challenges only the additional deprivation that occurred when he was placed in segregated confinement, a severe form of imprisonment usually reserved for problematic inmates or those with special needs. Cf. Wilkinson, 545 U.S. at 225 ("Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all."). For the latter deprivation, plaintiff has received no process at all pursuant to VDOC policy, as explained above.

It is similarly no answer to suggest that process in the form of classification review for plaintiff would be futile. See Defs.' Resp. 12-13 (claiming that capital offenders would be assigned to the most restrictive conditions of confinement in any event). There is no futility exception to the Due Process Clause. Regardless of whether plaintiff would in fact be eligible for placement in less-restrictive conditions or a lower-security facility, it is the evaluative process itself that vindicates his constitutional rights.

The Court's limited ruling leaves defendants with multiple options going forward. First, defendants could provide plaintiff with an individualized classification determination using procedures that are the same or substantially similar to the procedures used for all non-capital offenders, as plaintiff requests. Doing so would likely comport with the minimal due process requirements described in Wilkinson. 545 U.S. at 226-27. Second, defendants could vary the basic conditions of confinement on death row, if only slightly, such that confinement there would no longer impose an atypical and significant hardship on plaintiff. Either way, the Court's ruling does not necessarily entail a wholesale shift in Virginia's penal policy. The cost of compliance is limited by the very small class of affected inmates.

IV. CONCLUSION

For the reasons stated above, Plaintiff's Motion for Summary Judgment will be granted and the Motion for Summary Judgment by defendants will be denied by an appropriate Order to be issued with this Memorandum Opinion.


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