                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           NOV 19 1997
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BRET S. KLEIN,

                 Plaintiff-Appellant,

    v.                                                  No. 96-1289
                                                     (D.C. No. 95-K-304)
    KEN COBLENTZ, in his official and                     (D. Colo.)
    individual capacity; ROBERT
    FURLONG, in his official and
    individual capacity; MIKE FERRIS, in
    his official and individual capacity;
    OFFICER BAUMEN, Correctional
    Officer, in his individual capacity;
    MARSHAL BLASINGAME, in his
    official and individual capacity; TIM
    SMELSER, in his official and
    individual capacity; LOU NORDINE,
    in his official and individual capacity;
    ENDRE SAMU, Lt., in his official and
    individual capacity; LINDA
    TORNOWSKI, Lt., in her official and
    individual capacity; L. VANGELDER,
    Lt., in his official and individual
    capacity; DICK MARR, in his official
    and individual capacity,

                 Defendants-Appellees.


                              ORDER AND JUDGMENT *


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
                                                                       (continued...)
Before BALDOCK, EBEL, and LUCERO, Circuit Judges.




      After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Bret Klein, an inmate of the Colorado Department of

Corrections, appeals from the district court’s order granting summary judgment to

defendants on his claims brought pursuant to 42 U.S.C. § 1983. We affirm in part

and reverse and remand in part.

      The facts as alleged in Klein’s pro se complaint and as construed in his

favor are that he and another inmate at the Limon Correctional Facility, Donald

Andrews, began having problems with defendant Coblentz, a prison guard, when

Coblentz instituted personnel changes in the prison hobby shop where both Klein

and Andrews were employees. When the problems could not be resolved, Klein

urged Andrews to speak to Coblentz’ supervisor, who reversed Coblentz’

personnel decision. Klein then had another disagreement with Coblentz which,


*
 (...continued)
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                        -2-
according to Klein, resulted in his cell being “ransacked” by two other

defendants, also guards at the prison. About the same time, Coblentz claimed that

he had received information that Klein was going to assault him with a knife.

This claim was investigated by one of Coblentz’ superiors and found to be

meritless.

      Approximately two weeks after the first search of his cell, Klein’s cell was

again searched. During the second search, one of the defendants approached one

of the guards performing the search and whispered something to him. Klein was

then ordered to leave the area of his cell while the search was proceeding.

Immediately after this search, Klein was arrested, and two days later he was

informed that a knife had been found in his cell. Klein denied any knowledge of

the knife and asked that it be fingerprinted. He also requested that he be given a

polygraph. Neither of these two requests were granted. Klein’s inmate

representative was not allowed to inspect the cell or to examine prison records to

establish that Klein had not been the only inmate to occupy the cell.

      After his arrest, Klein was brought up on prison disciplinary charges, found

guilty, and sentenced to thirty days’ punitive segregation and to the loss of forty-

five days of good time credit. Klein further charged that as a “collateral

consequence” of this incident, he was regressively classified to maximum security

administrative segregation where he was held for 584 days, suffering resultant


                                         -3-
physical and mental distress. In a separate and later criminal action brought in

Lincoln County District Court, Klein, represented by counsel and able to present

evidence that other prisoners had occupied the cell and that the knife was never

fingerprinted, was acquitted by a jury of possession of dangerous contraband.

       Sometime after he had been punished by prison authorities for his alleged

infraction, Klein learned that defendant Coblentz had been disciplined by the

authorities at the Limon prison for planting a knife in the cell of another inmate.

Coblentz was forced to resign and served ninety days in jail because of this

infraction. As a result of this latter investigation, Klein was given a polygraph by

an investigator from the Colorado Bureau of Investigation which, according to

Klein, revealed that he had no prior knowledge of the knife found in the search of

his cell.

       Klein brought suit under 42 U.S.C. § 1983 alleging that his rights to due

process and equal protection were violated when defendants planted a knife in his

prison cell and then disciplined him for possessing dangerous contraband. He

further alleged that defendants conspired to violate his rights and maliciously

prosecuted him all in retaliation for the exercise of his rights under the First and

Fourteenth Amendments. Specifically, Klein’s pro se complaint stated that his

“constitutional right to seek redress from a higher authority” had been infringed




                                          -4-
by defendants. R. Doc. C at 4. Klein sought compensatory and punitive damages,

and declaratory and injunctive relief.

        The district court accepted the recommendation of the magistrate judge that

summary judgment be entered for defendants. 1 The magistrate judge had

concluded that, assuming Klein had a protected liberty interest in remaining free

from the punishment imposed, he received all the due process to which he was

entitled. Specifically, the magistrate judge concluded that the prison officials

were within their discretion to deny his inmate representative permission to

inspect Klein’s cell and to examine records of its previous occupancy, as well as

to deny Klein’s request that the knife be fingerprinted and that he be administered

a polygraph exam. Applying the holding in Superintendent v. Hill, 472 U.S. 445,

455-56 (1985), the magistrate judge concluded that “some” evidence supported

the disciplinary board’s findings, thus insulating it from reversal. Klein’s

retaliation claim was dismissed because the magistrate judge found it

insufficiently specific to show retaliatory purpose. The claim that Klein was

denied equal protection of the law when the prison authorities refused to allow his

inmate representative to examine his cell and to review prison records was held to

be meritless. Finally, the magistrate held that Klein’s request for an injunction



1
        Klein concedes that defendant Baumen was properly dismissed from this
suit.

                                         -5-
requiring the restoration of his good time credits was more properly pursued via a

petition for writ of habeas corpus, and that there was no indication that Klein had

exhausted his state court remedies. On appeal, Klein challenges these

conclusions. He further argues that the filing fee obligations imposed on

prisoners under 28 U.S.C. § 1915(b), as amended by the Prisoner Litigation

Reform Act of 1995 (“PLRA” or “the Act”), Pub. L. No. 104-134, 110 Stat. 1321

(Apr. 26, 1996), under which Klein was required to pay this court’s filing fee, is

unconstitutional.

      Because Klein is representing himself, his complaint will be liberally

construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In our de novo

review of the district court’s grant of summary judgment, we apply the same

standard as that used by the district court and examine the record to determine

whether there was any genuine dispute as to material facts and whether the

prevailing party was entitled to the judgment as a matter of law.   See Smith v.

Maschner, 899 F.2d 940, 942-43 (10th Cir. 1990). Viewing the evidence in the

light most favorable to Klein, we must determine whether reasonable jurors could

find, by a preponderance of the evidence, that defendants were entitled to a

verdict. See id. at 943.




                                         -6-
Claims based on imposition of disciplinary segregation

      Klein contends that he is entitled to damages for the imposition of

disciplinary segregation and the resulting physical and mental anguish he

suffered. We disagree. The Supreme Court has recently redefined the scope of

prisoner due process claims and clarified the proper approach for their analysis.

See Sandin v. Conner, 515 U.S. 472 (1995). The decision in Sandin applies

retroactively. See Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996).

      In Sandin, the prisoner alleged that he had been deprived of a state-created

liberty interest protected by the due process clause when he was sentenced to

thirty days disciplinary segregation for misconduct following a hearing at which

he was not allowed to call witnesses. In rejecting the plaintiff’s claim, the Court

noted that, although “States may under certain circumstances create liberty

interests which are protected by the Due Process Clause,” those interests,

however, “will be generally limited to freedom from restraint which, while not

exceeding the sentence in such an unexpected manner as to give rise to protection

by the Due Process Clause of its own force, nonetheless imposes atypical and

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

life.” Sandin, 515 U.S. at 483-84 (citations omitted). The Court concluded that

thirty days in disciplinary confinement did not “present the type of atypical,

significant deprivation in which a State might conceivably create a liberty

                                         -7-
interest.” Id. at 486. Because Klein’s sentence of thirty days in disciplinary

segregation is the same as that of the plaintiff in Sandin, it is clear that Klein’s

disciplinary segregation similarly fails to encroach upon a due process liberty

interest. Klein’s subsequent placement in administrative segregation similarly

fails to raise due process issues. See Talley, 91 F.3d at 1413 (rejecting

procedural due process claim because, under Sandin, administrative detention is

not the sort of “atypical, significant deprivation” that gives rise to a right to due

process); see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied,

116 S. Ct. 1690 (1996) (same).

      In addition to analyzing the typicality of the punishment imposed, the Court

in Sandin also considered whether the action of the prison authorities in

disciplining the plaintiff would “inevitably affect the duration of [the plaintiff’s]

sentence.” Id. at 487. Because “[t]he decision to release a prisoner rests on a

myriad of considerations,” the Court concluded that “[t]he chance that a finding

of misconduct will alter the balance is simply too attenuated to invoke the

procedural guarantees of the Due Process Clause.” Id. Klein has similarly failed

to show that his placement in either disciplinary or administrative segregation will

inevitably affect the duration of his sentence and thus cannot invoke due process

protections.




                                           -8-
      Accordingly, because Klein has not demonstrated that the punishment

“impose[d] atypical and significant hardship on [him] in relation to the ordinary

incidents of prison life,” id. at 484, or that his sentence will be inevitably

lengthened, see id. at 487, his punishment raises no procedural due process issues.


Loss of Good Time Credits

      As discussed above, under Sandin Klein will be accorded relief for the

deprivation of his good time credits only if he can demonstrate that “the State’s

action will inevitably affect the duration of his sentence.” Sandin, 515 U.S. at

487. Generally, a loss of good time credits will not “inevitably affect the duration

of [a prisoner’s] sentence.” Id.

      Klein has no constitutional or inherent right to be released before his valid

sentence expires. See Greenholz v. Inmates of Neb. Penal & Correctional

Complex, 442 U.S. 1, 7 (1979). Nor does he dispute defendants’ assertion that

the grant of parole as to him is discretionary. Cf. Thiret v. Kautzky, 792 P.2d

801, 805 (Colo. 1990) (explaining Colorado parole scheme and observing that

only those inmates serving sentences for crimes committed on or after July 1,

1979 but before July 1, 1985 are entitled to mandatory parole). Further, Klein

does not allege that he fits under a sentence category whereby his good time




                                           -9-
credits would qualify him for automatic parole eligibility under Colo. Rev. Stat.

§ 17-22.5-303(6). 2

      A Colorado inmate has no constitutional right to good time credit, see

Kodama v. Johnson, 786 P.2d 417, 419 (Colo. 1990) (en banc), even though “the

accumulation of good time credits serves . . . the purpose of determining an

inmate’s parole eligibility date,” People v. Swepston, 822 P.2d 510, 512 (Colo.

Ct. App. 1991). Good time credits do not count toward sentence reduction. See

id. Thus, Klein’s loss of good time credits has not “inevitably” increased the

duration of his sentence, and accordingly does not give rise to a right to due

process.


Claims Based on Procedures Employed in Prison Disciplinary Hearing

      To the extent Klein asserts that his constitutional rights have been denied

because the prison disciplinary procedures used in his case were defective, his

claims are barred by the Supreme Court’s recent decision in Edwards v. Balisok,

117 S. Ct. 1584 (1997). There, the Court determined that a claim for damages

and declaratory relief brought by a state prisoner challenging the validity of the

procedures used to deprive him of good-time credits is not cognizable under


2
       We are unable to determine from the record when Klein’s offense(s) were
committed or the nature or class of offense(s) involved. We are only told in his
response brief to defendants’ motion for summary judgment that Klein is serving
a forty-year-to-life sentence.

                                        -10-
§ 1983 unless the claimant can demonstrate that the underlying conviction or

sentence has been invalidated. Id. at 1589.

      Balisok, as does Klein, alleged that his prison disciplinary conviction was

the result of a biased decision maker. Because Balisok’s claim for declaratory

relief and monetary damages, based as it was on the alleged bias of the decision

maker, would have necessarily implied the invalidity of the punishment imposed,

the claim could not be maintained under § 1983.

      Klein is in the same position as Balisok. Klein’s disciplinary determination

has not been reversed, and he has apparently not pursued a state habeas action to

obtain a judgment that the prison ruling was invalid. Klein’s claim, therefore, is

similarly noncognizable under § 1983. His claim that he was framed by prison

authorities is indistinguishable from Balisok’s and would necessarily imply the

invalidity of the punishment imposed. We therefore affirm the district court’s

dismissal of Klein’s due process and equal protection claims based on both the

imposition of the particular punishment and any alleged defect in the prison

disciplinary proceeding. 3


3
      As noted supra, in granting summary judgment to defendants on Klein’s
due process claim, the district court relied on Hill, 472 U.S. at 455-56, for the
proposition that, because the findings of the prison disciplinary board were
supported by “some evidence,” those findings could be upheld. The “some
evidence” relied on by defendants and the district court were the pictures of
Klein’s cell and of the knife, and the incident report submitted by Smelser.
                                                                       (continued...)

                                        -11-
Malicious Prosecution Claim

      In addition to claims flowing from his prison disciplinary proceeding, Klein

also asserts that he was the victim of malicious prosecution when he was made to

stand trial in state court on the charge of possession of dangerous contraband, a

class four felony. As mentioned above, Klein was acquitted by a jury of that

charge. We do not read Balisok as erecting an impediment to this claim. Klein’s

success on a malicious prosecution claim based on the action in state court would

not imply the invalidity of a conviction or sentence. There is no conviction and

resulting sentence from the state court action to invalidate because Klein was

acquitted. The state court action was separate from the prison disciplinary

proceeding, carried on under different procedural rules and with different

decision-makers. Balisok, therefore, does not apply to Klein’s malicious

prosecution claim.




3
 (...continued)
Because this was indeed “some evidence,” the district court concluded that
Klein’s claim failed. The court’s reasoning under the circumstances of this case
is unpersuasive.

       In cases involving evidence allegedly planted in order to facilitate a false
disciplinary charge, the Hill standard has not been satisfied if the only evidence
supporting the prison disciplinary board’s decision is the planted evidence.
Although the “some evidence” standard is meager, “it still must point to the
accused’s guilt.” Lenea v. Lane, 882 F.2d 1171, 1175 (7th Cir. 1989).

                                         -12-
      In order to maintain this claim under § 1983, Klein must allege facts

tending to prove the common law elements of malicious prosecution and that his

Fourth Amendment right to be free from unreasonable seizure has been violated.

See Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir.), cert. denied, 117 S. Ct.

186 (1996). In Colorado

      a plaintiff must prove by a preponderance of the evidence that the
      defendant was a party to or assisted in a criminal or civil proceeding
      against the plaintiff, that the proceeding was resolved in favor of
      plaintiff, that there was no probable cause for the proceeding, that
      the defendant was actuated by malice in instituting the proceedings,
      and that the plaintiff was damaged thereby.

Walford v. Blinder, Robinson & Co., 793 P.2d 620, 623 (Colo. Ct. App. 1990).

      We find the facts alleged by Klein sufficient to overcome defendants’

motion for summary judgment on his claim of malicious prosecution. Defendants

were parties to or assisted in the criminal proceedings against Klein which were

resolved in his favor. Klein’s allegation that the knife was planted in his cell in

retaliation for his advocacy on behalf of another inmate sufficiently alleges the

absence of probable cause for his prosecution.

      In addition to the facts alleged in Klein’s complaint and discussed above,

the record contains affidavits from Klein’s friend, Andrews, and from Gregory

Wells, Klein’s inmate representative. Both affidavits state that there had been no

problems in the hobby shop until Coblentz took over. Andrews stated that

Coblentz threatened “to get you and [to] get your buddy Klein too.” R. Doc. 13,

                                         -13-
Att. B. Wells stated that the staff in Klein’s particular cell block was ordered not

to talk to him. Id. at Att. C. This evidence, when coupled with Klein’s other

allegations, is sufficient to raise a factual issue regarding defendants’ malice and

are similarly “sufficient to support an inference by a fair-minded jury that

defendants took disciplinary action against him based at least in part on improper

motives.” See Smith, 899 F.2d at 949. Most importantly, on the record before us,

defendants do not controvert Klein’s allegation that the knife was planted in his

cell, relying instead solely on the Sandin penalty-based analysis to sustain their

case. This approach ignores Klein’s claim that he was maliciously prosecuted by

defendants in retaliation for the exercise of his constitutional rights. By itself,

Klein’s uncontroverted claim that defendants planted the knife in his cell and then

used that as a basis for prosecuting him should have prevented the grant of

summary judgment for defendants. See Penrod v. Zavaras, 94 F.3d 1399, 1405

(10th Cir. 1996) (holding that uncontroverted allegations of retaliation were

sufficient to raise a genuine issue of material fact).

      Thus, with respect to Klein’s claims based on a malicious prosecution

theory arising from his criminal prosecution in state court, we find that Klein has

raised genuine issues of material fact regarding that claim to survive defendants’

motion for summary judgment. The judgment of the district court on Klein’s




                                          -14-
malicious prosecution claim is reversed, and this claim is remanded for further

proceedings.

      In his complaint, Klein also requested an injunction ordering the authorities

to restore his good time credits; the district court correctly held that this claim

was more properly pursued via a petition for writ of habeas corpus. See Smith,

899 F.2d at 951. The claim for injunctive relief was thus dismissed under the

authority of Rose v. Lundy, 455 U.S. 509, 522 (1982), because there was no

indication in the record that state remedies had been exhausted. Upon remand,

the district court, in its discretion, may wish to allow Klein to amend his

complaint to allege exhaustion if possible. If Klein is able to demonstrate that he

has exhausted his state court remedies, the case may proceed in the district court

with this portion of it construed as a 28 U.S.C. § 2254 petition. If, however,

Klein has not exhausted his state remedies, the district court should dismiss the

habeas portion of Klein’s complaint without prejudice. Because there is no

exhaustion requirement under § 1983, see Balisok, 117 S. Ct. at 1589, Klein’s

malicious prosecution claim should go forward. 4


4
       Defendants argue in their brief that Klein has failed to allege the personal
participation of defendants Furlong and Tornowski. We agree. The only
involvement alleged against Furlong and Tornowski pertains to the prison
disciplinary proceedings which we have already held were properly dismissed.
There is no allegation adequately tying Furlong and Tornowski to the malicious
prosecution. Thus, we affirm the dismissal of Klein’s claims against defendants
                                                                        (continued...)

                                          -15-
      In their brief, defendants argue that they should be accorded Eleventh

Amendment immunity from suit. This is incorrect because Klein sued defendants

in their individual as well as their official capacities, thus avoiding an Eleventh

Amendment problem. See Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993).

      Although the district court did not rule on defendants’ qualified immunity

defense, no such immunity would be appropriate because the law was clearly

established that defendants could not interfere with Klein’s right to free speech or

retaliate against him for exercising it by subjecting him to a malicious

prosecution. See Penrod, 94 F.3d at 1405.

      Finally, Klein argues that the Prison Litigation Reform Act (PLRA) is

unconstitutional. This court has recently considered a similar challenge to PLRA

and has agreed with the uniform conclusion of other courts that, even under a

variety of theories, the Act passes constitutional muster. See Shabazz v. Parsons,

No. 97-6025, 1997 WL 650958, at *2 (10th Cir. Oct. 21, 1997) (citing Mitchell v.

Farcass, 112 F.3d 1483, 1487-89 (11th Cir. 1997); Roller v. Gunn, 107 F.3d 227,

231-34 (4th Cir.), cert. denied, 118 S. Ct. 192 (1997); Hampton v. Hobbs, 106

F.3d 1281, 1283-88 (6th Cir. 1997)). Klein first contends that the Act denies

prisoners equal protection because it impermissibly distinguishes between



4
 (...continued)
Furlong and Tornowski.

                                         -16-
indigent inmates and indigent people in general. The Eleventh Circuit has

recently rejected such an argument, concluding that in enacting PLRA “Congress

had ample justification (e.g., prisoners often have an abundance of free time, live

in a nearly cost-free environment, and have unique incentives to file meritless or

frivolous lawsuits) in differentiating between indigent prisoners and other

litigants.” Mitchell, 112 F.3d at 1489; see also Hampton, 106 F.3d at 1286

(rejecting an equal protection challenge because “neither prisoners nor indigents

are a suspect class and . . . the classification does not implicate a fundamental

right”). The Act does not intrude on the constitutional separation of powers. See

Plyler v. Moore, 100 F.3d 365, 372 (4th Cir. 1996), cert. denied, 117 S. Ct. 2460

(1997). Nor does it impair due process rights. See Hampton, 106 F.3d at 1287-

88. Finally, because nothing in PLRA punishes inmates for past activity, the Act

does not trespass on citizens’ right to be free from bills of attainder, under which

specifically designated persons or groups are singled out for punishment without

trial. See Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468

U.S. 841, 847 (1984). Klein’s contention that it is inconsistent to require an

indigent litigant to pay a filing fee and then to dismiss the complaint as frivolous

is without merit because the Act amends § 1915 and now explicitly authorizes

such procedure. See 28 U.S.C. § 1915(e)(2).




                                         -17-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED in part and REVERSED in part, and this case is

REMANDED for further proceedings in accordance with this order and judgment.


                                                  Entered for the Court

                                                  David M. Ebel
                                                  Circuit Judge




                                      -18-
