                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   April 8, 2014
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 MILTON VERAN WILLIAMS,

              Plaintiff - Appellant,

 v.                                                      No. 13-7066
                                             (D.C. No. 6:12-CV-00257-RAW-SPS)
 MGR. TAYLOR, H - Unit Manager;                         (E.D. of Okla.)
 SHERWOOD, Case Manager H - Unit;
 CPL. GRAHAM; PETERS, OSP Chief
 of Security; CRYSTAL
 McFARLAND,

              Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      Milton Veran Williams appeals the district court’s decision to dismiss his

case for failure to state a claim and the court’s finding that his case is frivolous.




      *
         This order and judgment is not binding precedent except under the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.
We affirm the district court’s dismissal and find that both the case and the appeal

are frivolous.

                                  I. Background

      Williams is an Oklahoma state prisoner. According to his complaint,

several employees of the correctional facility in which he is serving his sentence

retaliated against him for filing lawsuits against other prison officials.

      In particular, Williams alleges that one defendant, who serves as the

cellhouse unit manager, refused to mail legal documents on his behalf and instead

instructed Williams to give his legal mail to his case manager. When Williams

continued to press her about it, she warned him that, if he persisted, she would

send him to a disciplinary unit of the prison he refers to as the “D/U.”

      According to Williams, another corrections officer was then summoned―

though by whom and for what purpose is unclear. When the corrections officer

arrived, he told the cellhouse unit manager that he heard Williams curse at her.

At that time, the cellhouse unit manager sent Williams to the D/U, where

Williams spent five days.

      Williams alleges that, when he returned to the cellhouse, he was demoted

from Level 1 to Level 2 and that defendants withheld his personal property for

several weeks and withheld state-owned clothing, sheets, blankets, and hygiene

products for several months.



                                          -2-
      Williams also alleges that he was denied access to the prison yard and that

one of the defendants threw away his yard identification card on several

occasions.

      Later, defendants sent Williams back to the D/U, this time for seventeen

days. Williams does not describe the events that led up to that decision.

      After Williams was released from the D/U, defendants assigned him to a

cell with a particularly “unruly” cellmate. Complaint at 6. According to

Williams, the defendants knew that the cellmate belonged to the same gang as a

man who had assaulted Williams in 2008.

      In late June, Williams was returned to the D/U and was allegedly placed in

a cell without access to functioning drinking water. When he was released back

to the cellhouse, he was assigned to a particularly “secluded” cell. Complaint at

11. His case manager, whom Williams does not name as a defendant here,

allegedly said “that [sic] why we place you here,” id., but Williams’s complaint

does not relay the remainder of the conversation or elaborate about what the case

manager may have meant by “that.” A week later, that same case manager

allegedly refused to accept Williams’s outgoing legal mail and defaced

Williams’s disbursement form. Williams did manage, however, to timely send

those documents to the court.

      Williams argues that the defendants violated 42 U.S.C. § 1983 by inflicting

cruel and unusual living conditions in retaliation for filing previous lawsuits

                                         -3-
against other prison officials. The district court dismissed this claim, finding that

Williams had not alleged specific facts demonstrating that the defendants’ actions

were substantially motivated by his pending lawsuits.

      In his complaint, Williams also alleged that certain defendants promoted

inmate-on-inmate assault when they required Williams to share a cell with a new

cellmate. The district court also dismissed this claim, finding that, because

Williams had not alleged that he had been assaulted, Williams had not identified

an actual injury.

      The district court also identified a short portion of Williams’s complaint

that alleged violation of a liberty interest. But, because Williams did not indicate

which liberty interest was at issue or provide supporting facts, the district court

dismissed this claim as well.

      Having found that Williams failed to state a claim upon which relief can be

granted, Fed. R. Civ. P. 12(b)(6), the district court went one step further and

determined that his suit was frivolous, meriting a strike under 28 U.S.C.

§ 1915(g). If upheld, that strike would be Williams’s third. See Williams v.

Steward, 488 F. App’x 322 (10th Cir. 2012) (issuing two strikes against

Williams).

                                   II. Analysis

      On appeal, much of Williams’s argument stems from his assertion that the

affidavits attached to the defendants’ motion to dismiss include untrue statements.

                                          -4-
But, because the issue on appeal is whether the district court erred in determining

that Williams had failed to state a claim, we do not consider the affidavits the

defendants have provided. We look only to the amended complaint. Cnty. of

Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)

(“The court’s function on a Rule 12(b)(6) motion is not to weigh potential

evidence that the parties might present at trial, but to assess whether the

plaintiff’s complaint alone is legally sufficient to state a claim for which relief

may be granted.”). Similarly, Williams argues that, through documents he

submitted to the district court, he has proven certain facts to be true. But, again,

the truth or falsity of facts is not relevant to our inquiry. When reviewing

dismissal for failure to state a claim, we assume that the facts the plaintiff has

pleaded are true. Weise v. Casper, 507 F.3d 1260, 1265 (10th Cir. 2007).

       Construing Williams’s filings broadly―as we must do for a pro se

petitioner, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)―we identify

two cognizable issues that Williams has properly brought before this court. First,

he asks us to review the district court’s determination that he failed to state a

claim for retaliation. Second, he contests the district court’s determination that

his suit was frivolous. Williams has not appealed the district court’s dismissal of

his claim that defendants promoted inmate-on-inmate assault or that they violated

a liberty interest.




                                          -5-
      A. Retaliation Claim

      We review de novo a district court’s dismissal of a complaint for failure to

state a claim upon which relief can be granted. City Ctr. W., LP v. Am. Modern

Home Ins. Co., 741 F.3d 1338, 1340 (10th Cir. 2014). In order to survive a

Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a plaintiff must plead

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

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

      There are three necessary elements of a 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.

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

      But we apply a more tailored standard to an inmate’s retaliation claim

against prison officials. Because “it is not the role of the federal judiciary to

scrutinize and interfere with the daily operations of a state prison,” we accord

prison authorities deference as they undertake that complex job. Peterson v.

Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998); see also Turner v. Safely, 482 U.S.

78, 84 (1987). Thus, we have held that a prisoner claiming retaliation must

eventually “prove that ‘but for’ the retaliatory motive, the incidents to which he

refers, including the disciplinary action, would not have taken place.” Peterson,

                                          -6-
149 F.3d at 1144. Accordingly, his complaint “must allege specific facts showing

retaliation because of the exercise of the prisoner’s constitutional rights.” Id.

(internal quotation marks omitted). As we have reminded Williams before,

“[d]enuded of any facts to make the allegations of retaliatory motive plausible,

the complaint fails to state a claim on which relief can be granted.” Williams v.

Steward, 488 F. App’x 322, 324 (10th Cir. 2012).

      Because access to the courts is a constitutionally protected activity, Bounds

v. Smith, 430 U.S. 817, 821 (1977), Williams has successfully pleaded the first

element. And, for the purposes of this appeal, we assume that Williams’s alleged

injuries would chill a person from continuing to engage in that activity. Williams

fails to state a claim, however, because he has failed to plead facts to support the

assertion that the retaliation resulted from his exercise of his constitutional rights.

      Williams identifies several allegedly retaliatory adverse actions in his

complaint. First, he alleges that, when he asked the cellhouse unit manager to

mail his legal documents, she sent him to the D/U and withheld certain personal

items. But, as the district court correctly identified, Williams’s complaint

indicates that the cellhouse unit manager sent Williams to the D/U only after

another corrections officer told her that Williams had cursed at her. In his

complaint, Williams does not deny cursing. Because cursing at a prison official is

reasonable grounds for disciplinary action, we find that it is not plausible on the




                                          -7-
face of the complaint that the “but for” cause of the decision to send Williams to

the D/U was his request to mail legal documents.

      Further, we cannot conclude that the corrections officer who reported the

cursing was motivated by retaliation. We see no reason to infer that the officer

fabricated the claim that Williams had cursed. Even if we did, however, it is not

plausible that the corrections officer was retaliating against Williams for his legal

filing, especially since, according to the complaint, the officer was not present

when Williams asked to mail legal documents.

      Williams alleges that he was returned to the D/U on several other

occasions, but he does not describe the events that gave rise to those decisions.

In one instance, he suggests he was sent to the D/U “without grounds given.”

Complaint at 5. Describing his other stints in the D/U, he does not offer any

information at all about the context. But, even if Williams has successfully

pleaded that the defendants did not articulate a reason for punishing him, he has

not pleaded specific facts supporting his assertion that the defendants were

retaliating against him because of his decision to sue their colleagues.

      Williams also alleges that he was denied access to the prison yard because

he was “not on the list.” Complaint at 4. Williams does not allege that he was or

should have been on the list and was removed in retaliation for his protected

activities. And Williams’s absence from the list is a legitimate reason for

denying him access to the yard. In addition, Williams suggests that one defendant

                                         -8-
threw away Williams’s yard identification card on several occasions, but the

complaint does not point to any connection to his prior litigation, let alone

support a plausibility that retaliatory motives were the “but for” cause.

      Lastly, Williams alleges that his case manager refused to accept his

outgoing legal mail and defaced a related form. But Williams does not name this

case manager as a defendant. 1 Because, as the district court has done, we

interpret this action as a suit against each defendant in his individual capacity,

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989), we cannot hold any

named defendant accountable for the case manager’s actions or use those actions

to infer any information about the named defendants’ motives.

      As a result, we find that Williams has failed to plead facts supporting the

plausibility that a desire to retaliate against Williams for prior litigation

motivated the defendants’ actions.




      1
         Before the district court, Williams sought to add the case manager as a
named defendant. The magistrate judge denied Williams’s motion because he had
failed to file a proper proposed amended complaint in violation of Local Civil
Rule 9.2(c). Because Williams’s only mention of this decision is a perfunctory
reference to it in his reply brief, he did not properly appeal it. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“We routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”); see also Murrell v. Shalala, 43 F.3d 1388, 1390 n.2
(10th Cir. 1994) (“Perfunctory complaints fail to frame and develop an issue
sufficient to invoke appellate review.”).

                                          -9-
      B. Frivolousness

       A prisoner who has thrice filed an action dismissed on “the grounds that it

is frivolous, malicious, or fails to state a claim upon which relief may be granted”

may no longer proceed in forma pauperis unless he is in imminent danger of

serious physical injury. 28 U.S.C § 1915(g).

      In affirming the district court’s decision, we uphold the imposition of a

strike for the purposes of 28 U.S.C. § 1915(g). That strike is Williams’s third,

and, as a result, he will be barred from filing in forma pauperis as set forth in the

statute. Not only do we affirm the characterization of the claims as frivolous, we

also find this appeal frivolous. As a result, we assess a fourth strike. Jennings v.

Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999).

                                 III. Conclusion

      Finding that Williams’s complaint fails to state a claim upon which relief

can be granted and exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM

the district court’s dismissal of his suit. In addition, we AFFIRM the district

court’s finding that the suit was frivolous and also find this appeal to be frivolous

for the purposes of imposing a third and a fourth strike under 28 U.S.C.

§ 1915(g). Accordingly, Williams’s motion to proceed on appeal in forma

pauperis is DENIED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and we order him




                                         -10-
to pay the full amount of the filing fee.

                                        ENTERED FOR THE COURT,

                                        Timothy M. Tymkovich
                                        Circuit Judge




                                            -11-
