                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  September 4, 2014
                                  TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    MARVIN K. SHUE,

                Plaintiff-Appellant,

    v.                                                    No. 14-8042
                                                (D.C. No. 2:14-CV-00015-SWS)
    ROBERT LAMPERT; STEVE                                (D. Wyoming)
    HARGETT; CARL VOIGTSBERGER,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.



         Mr. Marvin Shue is a state prisoner housed in a medium-security facility.

Hoping to obtain a transfer to a minimum security facility (the Wyoming Honor

Conservation Camp), Mr. Shue was disappointed when prison officials refused to

approve the transfer. Mr. Shue blamed his prison warden and two directors of the




*
       We are deciding this appeal based on the briefs. The parties do not request
oral argument, and we do not believe it would be helpful. See Fed. R. App. P.
34(a)(2)(C).

      This order and judgment does not constitute precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. 10th Cir. R.
32.1(A).
Wyoming Department of Corrections, suing them in their individual and official

capacities.

       The three defendants moved to dismiss based on Eleventh Amendment

immunity and failure to state a valid claim. The district court did not discuss the

Eleventh Amendment, but dismissed the action for failure to state a valid claim.

We affirm dismissal of the individual-capacity claims, but vacate and remand with

instructions to dismiss the official-capacity claims without prejudice.

I.     Official-Capacity Claims: Eleventh Amendment Immunity

       The Eleventh Amendment precludes official-capacity suits for damages

against state officials. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196

(10th Cir. 1998). Though the defendants urged dismissal based on the Eleventh

Amendment, this issue went unaddressed in the district court’s order. The

omission constituted error, for a court must consider the Eleventh Amendment

when it is raised by a party. See United States ex rel. Burlbaw v. Orenduff, 548

F.3d 931, 942 (10th Cir. 2008). We conclude that the Eleventh Amendment

required dismissal without prejudice of the claims against the three state officials

in their official capacities.

       Mr. Shue argues that the Eleventh Amendment does not affect the

individual-capacity claims. He is correct. See Reames v. Okla. ex rel. Okla.

Health Care Auth., 411 F.3d 1164, 1168 (10th Cir. 2005) (“The Eleventh

Amendment does not prevent plaintiffs from bringing suits against state officials

                                          2
. . . in their individual and personal capacities.”). Thus, the individual-capacity

claims survive the Eleventh Amendment challenge. 1

      Because the official-capacity claims are subject to the Eleventh

Amendment, we must decide the appropriate remedy. The remedy selected was

dismissal, but the district court did not say whether the dismissal was with or

without prejudice. Because the district court did not specify otherwise, the

dismissal is considered “with prejudice.” See Davis v. Miller, 571 F.3d 1058,

1061 (10th Cir. 2009).

      That constituted error. Because the Eleventh Amendment involves

sovereign immunity, the official-capacity claims should have been dismissed

“without prejudice” rather than “with prejudice.” See Pettigrew v. Okla. ex rel.

Okla. Dep’t of Pub. Safety, 722 F.3d 1209, 1212 (10th Cir. 2013) (“[I]mplicit in

enactment of the Eleventh Amendment is that state sovereign immunity ordinarily

bars federal-court jurisdiction over private suits against a state by citizens of the

state.”); Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1, Logan Cnty., Okla.

v. Guthrie, 654 F.3d 1058, 1069 n.9 (10th Cir. 2011) (“[A] dismissal on sovereign

immunity grounds . . . must be without prejudice.”). Thus, we must vacate




1
      Mr. Shue also argues that the Eleventh Amendment does not apply to
claims for declaratory or injunctive relief. But, Mr. Shue has no claims for a
declaratory judgment or an injunction.

                                           3
dismissal of the official-capacity claims and direct the district court to dismiss

these claims without prejudice.

II.      Individual-Capacity Claims: Failure to State a Valid Claim

         Application of the Eleventh Amendment would leave the individual-

capacity claims. These claims were correctly dismissed for failure to state a valid

claim.

         Our review is de novo. See Cressman v. Thompson, 719 F.3d 1139, 1144

(10th Cir. 2013). In applying de novo review, we consider only if the allegations

fail to state a claim that is facially plausible. See Myers v. Koopman, 738 F.3d

1190, 1193 (10th Cir. 2013), cert. denied, __ U.S. __, 134 S. Ct. 2842 (2014).

         In the complaint, Mr. Shue alleged deprivation of due process and cruel and

unusual punishment. These claims are facially implausible and were correctly

dismissed.

         After filing the complaint, Mr. Shue filed memoranda suggesting a claim for

retaliation. The defendants treated these memoranda as a separate claim of

retaliation and argued that it was deficient as a matter of law. The district court

agreed with the defendants, as do we.

         A.    Denial of Due Process

         Mr. Shue claims that the three officials caused a denial of due process by

refusing to approve a transfer to the honor camp. But, Mr. Shue was entitled to

due process only if the conduct affected a constitutionally protected “liberty” or

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“property” interest. See Elliott v. Martinez, 675 F.3d 1241, 1242 (10th Cir. 2012).

Mr. Shue lacked a liberty or property interest in the place of his confinement; thus,

he was not entitled to due process and the district court correctly dismissed the

claim. See Meachum v. Fano, 427 U.S. 215, 225 (1976) (stating that the

Fourteenth Amendment’s Due Process Clause does not protect a convicted

prisoner from an intra-state transfer); see also Olim v. Wakinekona, 461 U.S. 238,

248 (1983) (concluding that an inter-state prison transfer, in itself, does not

deprive an inmate of a liberty interest).

      B.     Cruel and Unusual Punishment

      Mr. Shue also claims cruel and unusual punishment. The conditions of

confinement might be so poor that they constitute cruel and unusual punishment.

See, e.g., DeSpain v. Uphoff, 264 F.3d 965, 972 (10th Cir. 2001). But, the

complaint does not contain any allegations about the conditions at his current

prison. Without any such allegations, the district court properly dismissed the

claim involving cruel and unusual punishment.

      C.     Retaliation

       The complaint contains no mention of retaliation. After filing the

complaint, however, Mr. Shue filed three motions, seeking an opportunity to

present evidence of retaliation. Mot. to Enter Evid. (Jan. 27, 2014) (Doc. 9); Mot.

to Enter New Evid. to the Pl.’s Do [sic] Process Conplaint [sic] (Feb. 18, 2014)

(Doc. 14); Mot. to Enter New Evid. to the Pl.’s Do [sic] Process Conplaint [sic]

                                            5
(Feb. 21, 2014) (Doc. 15). The defendants and the district court entertained these

motions as a separate claim involving retaliation. Construing the motions as a

separate claim, the defendants and district court stated that the claim was

insufficient based on the absence of any allegations tying the conduct to a

retaliatory motive. We agree.

      “Mere allegations of constitutional retaliation will not suffice; plaintiffs

must rather allege specific facts showing retaliation because of the exercise of the

prisoner’s constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th

Cir. 1990). In the three motions, Mr. Shue does not state any facts that would

support a retaliatory motive. Instead, in these motions, Mr. Shue stated only that:

      !      one of the defendants was retaliating 2 and

      !      there was retaliation for a prior suit against the Wyoming Department
             of Corrections. 3

The district court correctly concluded that these allegations were insufficient for a

retaliation claim: In the three motions, Mr. Shue did not identify any specific

facts indicating retaliation for the exercise of a constitutional right. See Khalik v.

United Air Lines, 671 F.3d 1188, 1193-94 (10th Cir. 2012).




2
        Mot. to Enter Evid. 1 (Jan. 27, 2014) (Doc. 9); Mot. to Enter New Evid. to
the Pl.’s Do [sic] Process Conplaint [sic] 2 (Feb. 18, 2014) (Doc. 14).
3
      Mot. to Enter New Evid. to the Pl.’s Do [sic] Process Conplaint [sic] 4
(Feb. 21, 2014) (Doc. 15).

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III.   Disposition

       We affirm the dismissal of the individual-capacity claims. But on the

official-capacity claims, we vacate the dismissal and remand with instructions to

order dismissal without prejudice.


                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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