                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 15, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 JACOB BARRETT,

          Plaintiff - Appellant,
                                                         No. 10-7000
 v.                                           (D.C. No. 09-CV-00064-FHS-SPS)
                                                         (E.D. Okla.)
 DAVID ORMAN; RANDALL
 WORKMAN; DEBBIE L. MORTON;
 MAX WILLIAMS,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges. **


      Plaintiff-Appellant Jacob Barrett, a state inmate proceeding pro se, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 action as well as the court’s

denial of his motion to amend his complaint. Mr. Barrett sued David Orman, the

mailroom administrator at the Oklahoma State Penitentiary (“OSP”), Marty


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Sirmons, 1 the warden of OSP, Debbie L. Morton, the director’s designee of the

Oklahoma Department of Corrections (“ODOC”), and Max Williams, the director

of the Oregon Department of Corrections, for violations of his free speech rights

under the First Amendment and his due process rights under the Fourteenth

Amendment. Finding that Mr. Barrett put forth enough facts to state a plausible

claim of relief against Defendants Orman, Workman, and Morton, we reverse the

district court’s dismissal as to those defendants. We affirm the district court’s

dismissal as to Defendant Williams and the court’s denial of Mr. Barrett’s motion

to amend his complaint.

      Mr. Barrett is an Oregon prisoner serving his sentence in the custody of

ODOC at OSP. 2 R. 192. Mr. Barrett alleges that Defendants have rejected mail

sent to him “without Written Notice, a statement of reasons for the

rejection/withholding of the mail, or an opportunity to be heard.” 1 R. 140. Mr.

Barrett filed a grievance with ODOC, complaining that ODOC returned certain

mail to its sender without “a notice or reason for the violation. . . . Pursuant to

OP-030117(8)(b) I am entitled to a notice of mail violation.” 1 R. 24. ODOC

denied relief on both the grievance and appeal. 1 R. 126, 142.

       Mr. Barrett then sued under 42 U.S.C. § 1983, alleging that the rejection of

his mail violated his freedom of speech under the First Amendment and his right

      1
         Randall Workman, the current warden of OSP, has been automatically
substituted for Mr. Sirmons as the correct party under Federal Rule of Civil
Procedure 25(d).

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to due process under the Fourteenth Amendment. 1 R. 140, 143-44. Defendants

Orman, Sirmons, and Morton moved to dismiss the suit under Rule 12(b)(6),

arguing that: the violation of prison procedure alone does not constitute a

constitutional violation; Mr. Barrett allegedly tried to extort a settlement; the

complaint did not personally link Defendants Sirmons and Morton to the alleged

constitutional violation; and Defendants were entitled to immunity under the

Eleventh Amendment. 1 R. 208-16. Defendant Williams moved to dismiss under

Rule 12(b)(2) and (6), based on the lack of personal jurisdiction and his lack of

any personal participation. 1 R. 230-33. The district court granted both motions

to dismiss in a single order. Barrett v. Orman, No. CIV-09-64-FHS-SPS, 2009

WL 5101959, at *1 (E.D. Okla. Dec. 16, 2009). The court granted Mr. Williams’s

motion because the complaint failed to allege any personal participation. Id. at

*1. As to Defendants Orman, Sirmons, and Morton, the court found that Mr.

Barrett failed to state a claim on which relief can be granted. According to the

district court, the “amended complaint only alleges that defendants failed to

follow policy regarding returned mail.” Id. at *2. Because a “violation of a

prison regulation cannot rise to the level of a constitutional violation,” the court

granted these defendants’ motion to dismiss. Id. Separately, the district court

denied Mr. Barrett’s motion to amend his complaint. 1 R. 8.

      Mr. Barrett appeals, arguing that the district court erred in three respects: in

construing the nature of his cause of action and not liberally construing his

                                         -3-
pleadings; in granting the motion to dismiss as to Defendants Orman, Sirmons,

and Morton based on the finding that he only alleged a violation of prison

regulations; and in granting the motion to dismiss as to Defendant Williams.

Aplt. Br. at 3. We have jurisdiction under 28 U.S.C. § 1291.

      “We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss.” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). We accept as

true well-pleaded factual allegations, but also consider whether “they plausibly

give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50

(2009). A complaint does not “suffice if it tenders naked assertions devoid of

further factual enhancement.” Id. at 1949 (internal alterations, citations, and

quotations omitted). But dismissal is not appropriate where the complaint

contains “enough facts to state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

      Although a violation of a prison regulation is not automatically a

constitutional violation, Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002),

Mr. Barrett nonetheless stated a valid constitutional claim even without the liberal

pleading standards typically accorded to pro se litigants. 2 In both his original and

      2
          “A pro se litigant’s pleadings are to be construed liberally and held to a
less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the district court “can
reasonably read the pleadings to state a valid claim,” the court should excuse such
deficiencies as “the plaintiff’s failure to cite proper legal authority, his confusion
of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Id. “In addition, pro se litigants are

                                          -4-
amended complaints, Mr. Barrett clearly and repeatedly couched his claim in terms

of constitutional violations. 1 R. 15, 17-19, 140, 143-44. Neither the original nor

the amended complaint ever mentioned a violation of prison regulations. 1 R. 10-

22, 138-46. In other pleadings, Mr. Barrett provided multiple, valid case citations

in support of his theory that the rejection of his incoming mail without notice, a

statement of reasons, and an opportunity to be heard violated his First and

Fourteenth Amendment rights. 1 R. 30, 151-52, 243-45, 297-300.

      Of course, even under the more stringent Twombly/Iqbal pleading standard,

Mr. Barrett did not need to cite specific cases in his complaint to survive a Rule

12(b)(6) motion. Rather, a complaint’s facts must state a facially plausible claim.

Twombly, 550 U.S. at 570. The alleged facts in Mr. Barrett’s complaints—that

specific incoming mail was being rejected without any notice, statement of

reasons, or opportunity to be heard—at least stated a plausible claim under the

Supreme Court’s decision in Procunier v. Martinez, 416 U.S. 396 (1974),

overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). In

Martinez, the Supreme Court held that prisoners’ First Amendment right to receive

uncensored correspondence, “even though qualified of necessity by the

circumstance of imprisonment,” is a liberty interest “protected from arbitrary



to be given reasonable opportunity to remedy the defects in their pleadings.” Id.
at 1110 n.3. Nonetheless, the district court need not “assume the role of advocate
for the pro se litigant” nor relieve the pro se plaintiff of his basic obligation to
provide sufficient facts on which to base a claim. Id. at 1110.

                                         -5-
governmental invasion.” Id. at 418. To protect this liberty interest, “the decision

to censor or withhold delivery of a particular letter must be accompanied by

minimum procedural safeguards.” Id. at 417. In Martinez, this procedural

threshold was satisfied by requirements that “an inmate be notified of the rejection

of a letter written by or addressed to him, that the author of that letter be given a

reasonable opportunity to protest that decision, and that complaints be referred to a

prison official other than the person who originally disapproved the

correspondence.” Id. at 418-19; see also Jolivet v. Deland, 966 F.2d 573, 575 n.5

(10th Cir. 1992). Martinez’s procedural requirements survived Thornburgh.

Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004). The confusion in this

case may arise from the close similarity between ODOC’s mail regulations and

those “procedural safeguards” that Martinez approved. 3 Still, that similarity does

not excuse ODOC’s constitutional obligation to provide “minimum procedural

safeguards.” Whatever the merits of Mr. Barrett’s claim or other grounds for

dismissal under Rule 12, the facts alleged “nudged” his claim against Defendants

Orman, Workman, and Morton “across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570.

      However, the claim against Defendant Williams lacked such facts. The

amended complaint alleges Mr. Williams’s position as director of the Oregon

      3
         Although Mr. Barrett’s prison grievances focused on violations of prison
regulations and not constitutional claims, Defendants have not asserted the
affirmative defense of non-exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007).

                                          -6-
Department of Corrections and recites his personal participation in and liability for

the constitutional violations. 1 R. 139-40. Such a “pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not

do.” Iqbal, 129 S. Ct. at 1949 (internal quotation marks and citation omitted).

Allegations of Mr. Williams’s involvement are no more than “naked assertion[s].”

Twombly, 550 U.S. at 557. Because the allegations against Mr. Williams do not

show an affirmative link between the constitutional deprivation and his personal

participation, Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009), Mr.

Barrett failed to state a claim on which relief could be granted against Mr.

Williams.

      Lastly, we review a district court’s denial of a motion to amend a complaint

for abuse of discretion. Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113

(10th Cir. 2007). The district court denied Mr. Barrett’s motion to amend because

it failed to set forth what had been amended in the new complaint, 1 R. 8, as

required by local rule. See E.D. Okla. LCvR 7.1(o). The court did not abuse its

discretion in denying the motion to amend for failure to comply with local rules.

See Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1029-30 (10th Cir. 1996).

      We AFFIRM the grant of Defendant Williams’s motion to dismiss, AFFIRM

the denial of Plaintiff’s motion to amend, and REVERSE the district court’s grant

of the motion to dismiss by Defendants Orman, Workman, and Morton. We

GRANT appellant’s motion to proceed without prepayment of fees and remind

                                         -7-
appellant that he is obligated to continue to make partial payments until the filing

fee is paid in full.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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