                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                   March 28, 2014

                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
    ABDULLAH KRU AMIN,

                Plaintiff -Appellant,
    v.                                                     No. 13-1400
                                                          (D. Colorado)
                                             (D.C. No. 1:12-CV-02889-RM-MJW)
    CARL VOIGTSBERGER, Wyo.
    Classification Interstate Compact; ROB
    LAMPERT, Director Wyoming
    Department of Corrections; IVETT RUIZ,
    A.V.C.F., Colo. Dept. Corr. Mental
    Health; MS. MACKINNON, SOTMP,
    C.D.O.C.,

                Defendants-Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




*
      The Plaintiff requests oral argument, but the Defendants do not. The Court
has determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore
ordered submitted without oral argument.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel. But
the order and judgment can be cited for its persuasive value under Fed. R. App. P.
32.1 and 10th Cir. R. 32.1.
      Plaintiff-Appellant Mr. Abdullah Kru Amin, an inmate of the Colorado

Department of Corrections, sued various Colorado and Wyoming corrections

officers under 42 U.S.C. § 1983. In the amended complaint, Mr. Amin alleged

that he was classified as an S-5 sex offender when he was transferred from a

Wyoming penitentiary. This classification was allegedly erroneous because the

sentence for his Wyoming sexual assault conviction—the basis for his S-5 sex

offender status—had been discharged in 2003. In light of the discharge of this

sentence, Mr. Amin argues that he should not have been classified as an S-5 sex

offender. Mr. Amin adds that he was wrongfully placed in segregation and that

Colorado prison officials stole his personal property. The district court dismissed

the action, and Mr. Amin appeals.

      We affirm. On the claims for damages, the Wyoming and Colorado

officials enjoy Eleventh Amendment immunity in their official capacities; though

dismissal was appropriate, it should have been without prejudice. On the

individual-capacity claims, we affirm the dismissal because: (1) the

classification, even if wrongful, would not have violated the federal constitution,

(2) the conditions of segregation did not impose a hardship that was atypical and

significant, and (3) he had an adequate post-deprivation remedy for the alleged

theft of his property.

                              Procedural Background

                                         2
      In the amended complaint, Mr. Amin asserts three claims: (1) improper

classification as an S-5 sex offender upon transfer to a Colorado penitentiary, (2)

placement in punitive and administrative segregation without adequate notice and

process, and (3) theft of his property and improper charges for personal hygiene

products.

      On screening, the district court dismissed the second and third claims. See

28 U.S.C. § 1915(e)(2)(B)(ii) (2012) (for claims brought in forma pauperis, “the

court shall dismiss the case at any time if the court determines that . . . the action

or appeal . . . fails to state a claim on which relief may be granted”). In a second

order, the district court granted the Defendants’ motion under Federal Rule of

Civil Procedure 12(b)(6) for dismissal of the first claim. 1 Each dismissal was

with prejudice.

                          Eleventh Amendment Immunity

      In their official capacities, the Defendants argued in the district court and

on appeal that they are entitled to Eleventh Amendment immunity on the claims

for damages. We agree.




1
      The Wyoming Defendants joined the Colorado Defendants’ motion to
dismiss, but added an argument involving personal jurisdiction. The district court
did not discuss the issue of personal jurisdiction. Because we agree that
dismissal is warranted for failure to state a valid claim, we do not address the
Wyoming Defendants’ argument involving personal jurisdiction.
                                           3
       A state enjoys immunity unless it has been abrogated by Congress or

waived. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity

applies not only to claims asserted directly against the state, but also against state

officials sued in their official capacities for damages. See Ellis v. Univ. of Kan.

Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998).

      Eleventh Amendment immunity has not been abrogated by Congress or

waived by Colorado or Wyoming. Accordingly, the Defendants are entitled to

Eleventh Amendment immunity on the official-capacity claims for damages. See

Wyo. Stat. § 9-2-2012(a) (2013) (recognizing that the Wyoming Department of

Corrections is a “part of the . . . Wyoming state government”); Griess v.

Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988) (holding that employees of

the Colorado Department of Corrections were entitled to Eleventh Amendment

immunity).

      Mr. Amin has not only sued the Defendants in their official capacities for

damages, but also asserted official-capacity claims for prospective injunctive

relief and individual-capacity claims for damages. These claims do not implicate

Eleventh Amendment immunity. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991);

see also Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (“Section 1983 plaintiffs

may sue individual-capacity defendants only for money damages and official-




                                          4
capacity defendants only for injunctive relief.”). Thus, the district court acted

correctly in dismissing these claims.

      But because the pleading defect was jurisdictional, the dismissal should

have been without prejudice because it involved a jurisdictional defect. See

Wauford v. Richardson, 450 F. App’x 698, 699 (10th Cir. 2011) (stating that

dismissal under the Eleventh Amendment should have been without prejudice); 2

see also Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1249 (10th

Cir. 2004) (“In cases where the district court has determined that it lacks

jurisdiction, dismissal of a claim must be without prejudice.”).

                           Failure to State a Valid Claim

      All of the remaining claims are deficient as a matter of law.

I.    Standard for Dismissal

      We engage in de novo review of the dismissals for failure to state a valid

claim. See Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010) (“We review

de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a

claim.”); Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (“We apply the

same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ

for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to

state a claim.”).


2
      Wauford is persuasive, but not precedential.
                                           5
II.   First Claim: Wrongful Classification

      In the first claim, Mr. Amin alleges that his wrongful sex-offender

classification violates the Fifth, Sixth, Eighth, and Fourteenth Amendments.

Even if these allegations are true, they would not create a constitutional violation.




      A.     Fourteenth Amendment’s Due Process Clause

      Mr. Amin alleges denial of due process based on the absence of a hearing

before the Colorado Department of Corrections classified him as an S-5 sex

offender. This claim is facially invalid. The classification was based on a prior

conviction; therefore, Mr. Amin had no due-process right to contest the

classification.

      When a prisoner has previously been convicted of a sex offense, the

conviction can be used for classification if due process was afforded in the prior

criminal case. Mariani v. Stommel, 251 F. App’x 536, 540 (10th Cir. 2007). 3

Because the classification was based on a prior conviction with the required

procedural safeguards, the Colorado Department of Corrections had no

constitutional duty to provide additional procedural safeguards.




3
      Though Mariani is unpublished, we regard it as persuasive.
                                      6
      Mr. Amin bases his due-process claim on an alleged discharge in 2003.

But Colorado’s classification of Mr. Amin was for administrative purposes, and

state regulations require only a “judicial determination of a sex offense.” See R.

vol. 2, at 115; see also Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003)

(“[D]ue process does not require the opportunity to prove a fact that is not

material to the State’s statutory scheme.”).

      According to Mr. Amin, he would not qualify as a sex offender under

Wyoming law. See Wyo. Stat. § 7-19-302. But his legal status under Wyoming

state law would not affect Colorado’s classification for administrative purposes

or the right to a hearing prior to classification.

      Because Mr. Amin was convicted of a sex offense, he had no due-process

right to a hearing to contest his sex-offender classification. In these

circumstances, we affirm the dismissal of the due-process claim.

      B.     Eighth Amendment Prohibition Against Cruel and
             Unusual Punishment

      Mr. Amin also argues that his classification violates the Eighth

Amendment’s prohibition against cruel and unusual punishment. According to

Mr. Amin, his sex-offender status jeopardized his life. R. vol. 1, at 86.

      The Eighth Amendment is implicated only when a prison official “knows

of and disregards an excessive risk to inmate health and safety.” See Barney v.

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (internal quotation marks
                                           7
omitted). To prevail on an Eighth Amendment claim, a prisoner must “show that

he is incarcerated under conditions posing a substantial risk of serious harm.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

      In the amended complaint, Mr. Amin does not identify any actual threats or

plead facts suggesting that his sex-offender status poses “a substantial risk of

serious harm.” Accordingly, Mr. Amin has failed to state a valid claim under the

Eighth Amendment.



      C.     Fifth Amendment Protection Against Double Jeopardy

      Mr. Amin also claims violation of the Fifth Amendment. The basis for the

claim is not clear. The district court interpreted this claim to involve compelled

attendance at a Colorado sex-offender treatment program. The district court

dismissed this claim because we have held that the Double Jeopardy Clause is not

violated when a convicted sex offender is compelled to attend sex-offender

treatment. Wirsching v. Colorado, 360 F.3d 1191, 1205 (10th Cir. 2004).

      But Mr. Amin has not been compelled to participate in sex-offender

treatment. In fact, he alleges that he is ineligible to attend the Colorado Sex

Offender Treatment and Monitoring Program. See R. vol. 1, at 86 (“[S]ometime

in the later future I would maybe be eligible to get into their sex offender




                                          8
program, but right now I didn’t qualify.”). Thus, the district court may have

misinterpreted the claim.

      But any other interpretation would also require dismissal. In the amended

complaint, Mr. Amin appears to rely on the Fifth Amendment’s Double Jeopardy

Clause. But this clause does not apply because prison administrative proceedings

do not involve criminal prosecution. See Daniels v. Arapahoe Cnty. Dist. Court,

376 F. App’x 851, 855 (10th Cir. 2010) (holding that a prisoner’s sex-offender

classification did not violate the Double Jeopardy Clause because prison

proceedings are not part of a criminal prosecution); 4 see also Fogle v. Pierson,

435 F.3d 1252, 1262 (10th Cir. 2006) (concluding that “the Double Jeopardy

clause applies only to proceedings that are ‘essentially criminal’ in nature” and

cannot be based on administrative segregation). Because the classification

involved an administrative purpose, Mr. Amin has not stated a valid claim based

on the Fifth Amendment’s protection against double jeopardy.

      D.     Sixth Amendment

      Like the district court, we are unable to discern the basis for Mr. Amin’s

Sixth Amendment claim. Though we liberally read pro se pleadings, we cannot

act as an advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The amended complaint refers to the Sixth Amendment, but is silent regarding the


4
      Daniels is unpublished, but we regard it as persuasive.
                                        9
basis for this claim. Accordingly, we affirm the dismissal of a Sixth Amendment

claim.

III.     Second Claim: Conditions of Segregation

         In his second claim, Mr. Amin urges a due-process violation when he was

improperly placed in “punitive isolation” for approximately 30 days without

advance written notice. The district court dismissed this claim after concluding

that the conditions of confinement were not sufficiently “atypical and significant”

to create a liberty interest under the Due Process Clause. R. vol. 1, at 108-10.

We agree.

         A protected liberty interest arises when a restraint “imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). When determining whether

administrative segregation involves an atypical and significant hardship, we

consider four factors: (1) whether the segregation furthers a legitimate

penological interest; (2) whether the conditions of the placement are extreme; (3)

whether the placement increases the duration of confinement; and (4) whether the

placement is indeterminate. See Estate of DiMarco v. Wyo. Dep’t of Corr., 473

F.3d 1334, 1342 (10th Cir. 2007). These factors cut against the existence of a

liberty interest.




                                           10
      The segregation was imposed for a legitimate penological interest because

it was ordered only after another inmate had been attacked. The segregation not

only served a legitimate objective, but also involved moderation, for Mr. Amin

does not allege that the conditions of segregation were extreme. And the

segregation was not too long. In similar circumstances, we have held as a matter

of law that segregation did not violate the Fourteenth Amendment. See id. at

1342-43 (holding that segregation of a transgender inmate for safety reasons did

not impose an atypical and significant hardship). Under these circumstances, we

hold that the second claim fails as a matter of law.




IV.   Third Claim: Theft of Property

      In the third claim, Mr. Amin alleges that his property was stolen by

Colorado officials when he was placed in segregation. The district court

dismissed this claim because Mr. Amin had an adequate state post-deprivation

remedy. See Colo. Rev. Stat. § 24-10-118.

      Like the district court, we conclude that Colorado’s post-deprivation

remedy is adequate as a matter of law. See Hudson v. Palmer, 468 U.S. 517, 533

(1984) (noting that even intentional deprivations of property do not violate the

Due Process Clause so long as “adequate state post-deprivation remedies are

                                         11
available”); Becker v. Kroll, 494 F.3d 904, 921 (10th Cir. 2007) (“[W]here pre-

deprivation remedies cannot anticipate and prevent a state actor’s wrongful act,

post-deprivation state tort remedies are adequate to satisfy due process

requirements.”). As a result, this claim was properly dismissed.

V.    District Court’s Denial of Leave to Amend

      The district court denied leave to amend, reasoning that the proposed

amendment would have been futile. We review the denial of leave to amend for

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

(10th Cir. 2007). The proposed amendments would not have cured the pleading

defects. See Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997).

Thus, the district court acted within its discretion in denying leave to amend.



          The District Court’s Refusal to Appoint Counsel for Mr. Amin

      Mr. Amin claims the district court erred in refusing to appoint counsel.

This alleged error is based on allegations that: (1) Mr. Amin could not fully

access a law library, and (2) he was not able to understand the legal materials. In

his eyes, these allegations warranted appointment of counsel. The district court

held otherwise. Reviewing for abuse of discretion, we agree. See Toevs v. Reid,

685 F.3d 903, 916 (10th Cir. 2012).




                                         12
      Under 28 U.S.C. § 1915(e)(1), the district court lacked authority to appoint

an attorney. See Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S.

296, 301-08 (1989). Instead, the court could simply request an attorney to take

the case. See id. When a district court declines to request an attorney, we can

reverse “[o]nly in those extreme cases where the lack of counsel results in

fundamental unfairness.” McCarthy v. Weinberg, 753 F.2d 836, 839 (10th Cir.

1985).

      When evaluating whether the denial of a request resulted in fundamental

unfairness, we consider the merits, the nature and complexity of the claim, and

the prisoner’s ability to investigate and present his claims. See Toevs, 685 F.3d

at 916. These factors weigh in favor of affirmance: Mr. Amin’s claim is not

complex, and he was able to investigate and present his claims before the district

court and our court. Accordingly, the district court did not abuse its discretion in

declining to appoint or request counsel for Mr. Amin.

                                    Conclusion

      The Eleventh Amendment creates a jurisdictional bar on the official-

capacity claims for damages. Thus, we remand with instructions to dismiss these

claims without prejudice. We affirm the dismissal with prejudice on the




                                         13
remaining claims.

                    Entered for the Court



                    Robert E. Bacharach
                    Circuit Judge




                     14
