                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 20, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 M ICHA EL K EC K,

          Plaintiff-Appellant,
 v.                                                     No. 07-1100
                                                (D.C. No. 06-cv-02564-ZLW )
 C ARL ZEN O N ; STEV EN H A RTLEY;                      (D . Colo.)
 and EU GEN E G ONZA LES,

          Defendants-Appellees.



                             OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      M ichael Keck, currently in custody at a Colorado correctional facility,

appeals the district court’s dismissal of his pro se complaint under 42 U.S.C.

§ 1983 and 28 U.S.C. § 1343, seeking money damages as well as declaratory and

injunctive relief. M r. Keck claims his classification to administrative segregation

was effected in violation of his constitutional rights to due process and equal

protection of the laws. The district court, for its part, found M r. Keck’s claims


      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of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.
frivolous, assessed him a strike under 28 U.S.C. § 1915(e)(2)(B), and denied M r.

Keck leave to proceed in form a pauperis on appeal pursuant to 28 U.S.C.

§ 1915(a)(3) and Rule 24 of the Federal Rules of Appellate Procedure. Even

viewing M r. K eck’s complaint liberally, as we are obliged to do, Andrews v.

Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007), we determine that the judgment of

the district court should be affirmed.

                                     t   t     t

      M r. Keck’s troubles at Arkansas Valley Correctional Facility began July 1,

2004, when he was assigned to administrative segregation following a

disciplinary proceeding in which he was found guilty of assault. See Appellant’s

Br. 17; Ex. 1 to Pl.’s Compl. A month later, M r. Keck appealed his continued

segregated confinement in light of his asserted good behavior, Ex. 1 to Pl.’s

Compl., and was granted reprieve by Associate W arden Steven Hartley who

authorized his release back into the general prison population on August 30, 2004,

Ex. 2 to Pl.’s Compl.

      W ithin just a few weeks of his release into the general population, however,

M r. Keck was again the subject of disciplinary proceedings on September 24,

2004, this time for possession or use of drugs. Ex. 4 to Pl.’s Compl. Following a




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hearing, M r. Keck was found guilty and subject to, among other things, 20 days

of punitive segregation. Id. 1

      M r. Keck remained segregated past the expiration of 20 days and sought

relief through processes afforded by the CDOC. Specifically, M r. Keck filed a

grievance with the CDOC on October 23, 2004, asserting that he satisfied his

mandatory punitive segregation and that if his continued segregation was a result

of being classified to administrative segregation, the CDOC effected this change

in status in contravention of its own regulations which afford inmates notice and a

hearing. Ex. 11 to Pl.’s Compl.

      The CDOC responded that his administrative segregation status effected

around July 1, 2004 had never been altered; that he had been afforded all process

due in accordance with its regulations through the hearing held on July 1, 2004;

and that his brief release into the general population on August 30, 2004, was

“inadvertent[]” and due to a non-final recommendation that was subsequently

denied by a superior review authority (Offender Services). See Ex. 11 to Pl.’s




      1
          Colorado Department of Corrections (“CDOC”) regulations distinguish
betw een “administrative segregation” and “punitive segregation.” CDOC
Administrative Regulation 600-02 (II) (eff. Apr. 15, 2004). Although the former
is “[t]he most restrictive custody level imposed upon an offender . . . [and] w ill
be utilized only after a specific classification hearing has determined this custody
level is required,” it is not punitive and is rather a “preventive and management
assignment process.” Id. at II, III(A). By contrast, “punitive segregation” is “[a]
disciplinary sanction that may be imposed only after a specific disciplinary
hearing has taken place.” Id. at III(I).

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Compl.; see also Ex. 6 to Pl.’s Compl. (memorandum from Associate W arden

Hartley to M r. Keck, dated Jan. 6, 2006, explaining the same). 2

                                     t    t    t

      The gravamen of M r. Keck’s appeal is the CDOC’s alleged failure to

provide M r. Keck with due process when it purportedly reclassified him to

administrative segregation on September 24, 2004. The district court dismissed

M r. Keck’s claim as frivolous because he failed to allege facts giving rise to a

cognizable liberty interest. M r. Keck also raised an equal protection claim, which

the district court dismissed on the grounds that M r. Keck could not and did not

identify any similarly situated person who was treated differently. 3

      W e review a district court’s dismissal for frivolousness under Section 1915

for abuse of discretion, though where and to the extent the determination turns on

a question of law, we review the district court’s decision de novo. Fogle v.

Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). Dismissal on frivolousness



      2
         On February 11, 2005, M r. Keck was transferred from Arkansas Valley
Correctional facility, a medium security facility, to the Colorado State
Penitentiary (“CSP”), a high security facility. M r. Keck’s situation appears to
have steadily deteriorated upon his arrival at the CSP. An administrative
segregation classification review contained in the record notes his “continued . . .
inappropriate behavior” upon arriving at the CSP in 2005 and details over seven
specific instances of such behavior in a year’s time. Ex. 15 to Pl.’s Compl.
      3
         M r. Keck also raised before the district court a purported violation of his
Eighth Amendment right to be free from cruel and unusual punishment. M r. Keck
has not appealed the district court’s conclusion that he failed to identify a specific
deprivation of a human need recognized under the Eighth Amendment.

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grounds is appropriate w hen the claim at issue “lacks an arguable basis either in

law or fact” or, in other words, is “based on an indisputably meritless legal

theory.” Id. (quotations and citations omitted).

      1.       Beginning with M r. Keck’s due process claim, we agree with the

district court that M r. Keck has not presented a constitutionally protected liberty

interest. M r. Keck appears to assert that the CDOC’s regulation governing the

assignment of inmates to administrative segregation itself created a protected

liberty interest to remain in the general prison population. Ordinarily, however,

changing an inmate’s status or classification “does not deprive him of liberty,

because he is not entitled to a particular degree of liberty in prison.” Templeman

v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994); see also M eachum v. Fano, 427

U.S. 215, 225 (1976). And, more specifically, we long ago rejected M r. Keck’s

very argument with reference to CDOC’s regulatory regime. See Templeman, 16

F.3d at 369.

      M ore recently, the Supreme Court has explained that the examination M r.

Keck asks us to undertake – namely, determining whether prison guidelines “used

‘language of an unmistakably mandatory character’ such that the incursion on

liberty would not occur ‘absent specific substantive predicates’” – is itself no

longer an appropriate method for ascertaining the existence of a liberty interest.

Sandin v. Conner, 515 U.S. 472, 480 (1995) (quoting Hewitt v. Helms, 459 U.S.

460, 471-72 (1983)). Rather, we must look to the conditions of confinement,

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asking whether they impose an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Id. at 484; see also Wilkinson v.

Austin, 545 U.S. 209, 221-23 (2005); Estate of DiM arco v. Wyoming Dep’t of

Corr., Div. of Prisons, 473 F.3d 1334, 1339-40 (10th Cir. 2007); Fogle, 435 F.3d

at 1259. Thus, for example, in Fogle we found the prisoner’s allegations – that

for a three-year period he was “confined to his cell for all but five hours each

week and denied access to any outdoor recreation” – were not frivolous and

arguably implicated procedural due process concerns. Fogle, 435 F.3d at 1259.

Analyzing M r. Keck’s case under this standard, however, we are still unable to

discern the basis for a claim. M r. Keck has not argued that the prison conditions

he endures impose an “atypical and significant hardship,” and the record he

presents is devoid of facts regarding the nature of his current detention that would

be sufficient to suggest the sort of extreme situation presented in Fogle and other

cases in which courts have found Sandin’s test met. 4

      2.     Even were we to assume that M r. Keck had a constitutionally

protected liberty interest in his classification, his due process argument would

nevertheless fail. M r. Keck’s sole procedural complaint is that the CDOC failed

to follow its own regulations, but the record before us suggests otherw ise.



      4
        M r. Keck’s similar assertion that he has a protected liberty interest in
avoiding the loss of the opportunity to earn “good time credits” while in
administrative segregation is also foreclosed by our precedent. See Templeman,
16 F.3d at 370; see also Fogle, 435 F.3d at 1262.

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      It is undisputed that M r. Keck was afforded an administrative segregation

hearing, in compliance with CDOC regulations, on July 1, 2004. M r. Keck does

not assert that this hearing, and the processes employed by the CDOC generally,

failed to provide him with due process prior to being classified to administrative

segregation. Rather, he claims that the purported reassignment by Associate

W arden Hartley, as the “administrative head,” nullified the effect of the July 1,

2004 hearing. By its own terms, however, the very document to which M r. Keck

points as proof did no such thing. Instead of reversing the status decision,

Associate W arden Hartley plainly indicated that he had “modified” the initial

status decision by noting that M r. Keck’s status “will be reviewed . . . for

placement to level IV.” Ex. 1 to Pl.’s Compl. (emphasis added). In accordance

with this modification, the classification comm ittee responsible for recommending

inmate placement to administrative segregation conducted a review of M r. Keck’s

placement on August 25, 2004 and suggested that M r. Keck not be retained in

administrative segregation. Ex. 2 to Pl.’s Compl. Associate W arden Hartley

concurred with the classification committee’s suggestion on August 30, 2004. Id.

      M r. Keck argues that, under the CDOC regulation, Associate W arden

Hartley’s concurrence was “final” and the C DOC’s assertions to the contrary are

post-hoc fabrications. W hile the regulations do in fact provide that Associate

W arden Hartley’s decision, as the acting administrative head, on M r. Keck’s

appeal of the classification committee’s decision to assign him to administrative

                                          -7-
segregation is final, see CDOC Regulation 600-02(IV )(N ), a w holly separate

provision (and review process) applies to any subsequent review conducted by

Associate W arden Hartley of a classification comm ittee recommendation

occurring after the inmate’s initial classification has been made, see CDOC

Regulation 600-02(IV)(P).

      It is this latter regulatory provision and process that is applicable to

Associate W arden Hartley’s approval on August 30, 2004, of the committee’s

recommendation that M r. K eck not be retained in administrative segregation.

This is so because the committee’s decision that Associate W arden Hartley

approved was not the committee’s initial classification decision; rather, it was the

committee’s recommendation based on one of many subsequent reviews of M r.

Keck’s continued segregated confinement in accordance with CDOC regulations.

The applicable regulation explicitly provides that the administrative head’s

decision upon review of such an interim recommendation is not final; rather, if

the administrative head concurs w ith the committee’s finding, as Associate

W arden Hartley did here, “the findings shall be forwarded to the Offender

M anagement manager,” and “[i] f approved by the Offender M anagement

manager,” the inmate will be reclassified. CDOC Regulation 600-02(IV)(P)(3-4)

(emphasis added). The CDOC’s response to M r. Keck’s grievances then – that

although Associate W arden Hartley approved of the committee’s recommendation

to take M r. Keck off of administrative segregation status, his approval was in

                                          -8-
effect overruled by Offender Services – is entirely consistent with, not contrary

to, the process provided by its own regulations.

      3.     In addition to his due process claim, M r. Keck asserts that he was

denied equal protection of the law s stemming from his purported reassignment to

administrative segregation following the September 24, 2004 disciplinary

proceeding during which he was found guilty of use or possession of drugs.

Specifically, M r. Keck claims that his compatriots to this infraction were not

similarly treated because they were not directed to administrative segregation.

But M r. Keck fails to offer any facts suggesting that any of these inmates w ere

similarly situated, offering no basis to believe that the other inmates he identifies

had a similar disciplinary history, let alone that they had already been classified

to administrative segregation. On this basis, we cannot find error in the district

court’s dismissal of M r. K eck’s claim. See Templeman, 16 F.3d at 371 (holding

that defendant could not identify a similarly situated inmate not subject to

administrative segregation because classification decisions are discretionary and

the C DOC takes a multitude of factors into account in making such a decision);

see also Fogle, 435 F.3d at 1261 (same).

                                     t     t     t

      For the foregoing reasons, we affirm the district court’s dismissal of M r.

Keck’s action pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and, like the district




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court, we deny M r. Keck’s motion for leave to proceed in form a pauperis.

                                      ENTERED FOR THE COURT



                                      Neil M . Gorsuch
                                      Circuit Judge




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