                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     April 27, 2011
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 RONALD J. SCHMITT,

               Plaintiff-Appellant,                      No. 10-3269
          v.                                             (D. of Kan.)
 ELIZABETH RICE, Kansas                        (D.C. No. 5:08-CV-3047-SAC )
 Department of Corrections; DAVID R.
 MCKUNE, Warden, Lansing
 Correctional Facility; ROGER
 WERHOLTZ, Secretary of
 Corrections, in their official and
 individual capacities,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Ronald Schmitt, an inmate at the Lansing Correctional Facility in Kansas

proceeding pro se, brought an action under 42 U.S.C. § 1983 against various



      *
         This order and judgment is not binding precedent except under the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.
prison officials, alleging violations of the First, Eighth, and Fourteenth

Amendments. Schmitt appeals the district court’s denial of these claims upon

defendants’ motion to dismiss.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                                   I. Background

      Schmitt has been a prisoner in the custody of the Kansas Department of

Corrections (KDOC) since 1989. For reasons that will be relevant later, in 2001,

Schmitt was convicted in KDOC administrative proceedings of the following

disciplinary violations: (1) possession of dangerous contraband, (2) hoarding

authorized or prescribed medication, and (3) attempting to escape from custody.

In 2002, Schmitt filed a habeas petition in federal district court appealing the

administrative convictions. The district court vacated the convictions and

remanded the matter. Following administrative rehearing, Schmitt was found not

guilty on all charges. Thereafter, the district court ordered KDOC to review

Schmitt’s custody level, excluding from consideration the original disposition of

the hearing officer.

      Schmitt alleges that, in early 2006, he was the victim of a fraud committed

by a fellow inmate, Larry Shingleton. Shingleton convinced Schmitt to send

$2,000 to a third party in order to arrange for Schmitt to be interviewed on local

television. The interview never took place.




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      On May 19, Schmitt was placed in administrative segregation. That day, he

wrote a letter to Warden David McKune, complaining about the transfer, and a

second letter to the prison’s Intelligence and Investigation Officer, Charles

Nance, reporting Shingleton’s alleged fraud.

      Nearly three weeks later, Schmitt received a copy of an administrative

segregation report, authored by prison administrator Elizabeth Rice. The report

stated an investigation by Rice led her to conclude Schmitt was preparing for an

escape. She cited information received from two “reliable sources,” information

found in Schmitt’s cell about evading capture by an enemy, and evidence of prior

attempts to escape. The evidence of prior attempts included the alleged 2001

attempt, of which Schmitt had been acquitted on rehearing. Rice recommended

that Schmitt be placed in administrative segregation to prevent further attempts to

escape.

      As a result of the investigation, Schmitt was transferred to the Supermax

Long Term Administrative Segregation Unit at the El Dorado Correction Facility.

In early 2007, the Segregation Review Board recommended that Schmitt be

released back into the general prison population, based in part on its conclusion

that the information provided by the Rice report was misleading. Schmitt was

released from segregation shortly thereafter.

      Schmitt brought this § 1983 action in federal district court making various

claims under the First, Eighth, and Fourteenth Amendments relating to his

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placement in administrative segregation and the failure of prison officials to

respond to his complaints that he had been defrauded by Shingleton. The district

court dismissed the amended complaint for failure to state a claim upon which

relief could be granted.

                                    II. Discussion

         On appeal, Schmitt raises the following claims: (1) the conditions of his

administrative segregation violated the Eighth Amendment prohibition against

cruel and unusual punishment; (2) the Rice report, which led to Schmitt’s

administrative segregation, violated his right to due process under the Fourteenth

Amendment; and (3) Schmitt was placed in administrative segregation as

retaliation for his efforts to petition the government in his 2002 habeas appeal, in

violation of the First Amendment.

         Because Schmitt is a pro se litigant, we construe his pleadings and other

papers generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir.

2007).

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

state a claim. See Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th

Cir. 2009). “We assume the truth of all well-pleaded facts in the complaint, and

draw reasonable inferences therefrom in the light most favorable to the

plaintiff[].” Id. But “ to withstand a motion to dismiss, a complaint must contain

enough allegations of fact to state a claim to relief that is plausible on its face.”

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Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir.

2008) (quotations omitted). The complaint must provide “more than labels and

conclusions” or merely “a formulaic recitation of the elements of a cause of

action,” as “courts are not bound to accept as true a legal conclusion couched as a

factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quotations omitted).

      A. Eighth Amendment Claim

      The district court dismissed Schmitt’s claim that the conditions of his

administrative segregation violated the Eighth Amendment after concluding

Schmitt had not raised this claim in the amended complaint. The court observed a

party may not raise a claim for the first time in response to a motion to dismiss.

      We disagree with the district court’s interpretation of Schmitt’s amended

complaint. Reading this pleading liberally, we find Schmitt raised a conditions of

confinement claim in asserting that defendants violated “his Eighth Amendment

Right to be free from cruel and unusual punishment,” R., Vol. I, at 126, and that

Rice’s preparation of the investigative report, which resulted in his administrative

segregation, violated his Eighth Amendment rights, id. at 142.

      Nonetheless, we find this claim cannot survive a motion to dismiss. The

Eighth Amendment prohibits punishment that “involve[s] the wanton and

unnecessary infliction of pain” or is “grossly disproportionate to the severity of

the crime warranting imprisonment.” Bailey v. Shillinger, 828 F.2d 651, 653

                                         -5-
(10th Cir. 1987) . But the amended complaint fails to allege any facts regarding

the conditions Schmitt experienced in administrative segregation.

      For this reason, we affirm the district court’s dismissal of the Eighth

Amendment claim.

      B. Due Process Claim

      Schmitt also appeals the dismissal of his claim that he was placed in

administrative segregation without due process. Specifically, Schmitt contends

the Rice report recommending his placement was flawed in that it included

(1) false information, and (2) information about his alleged escape attempt in

2001, which was not proven in the administrative hearing and which the federal

district court ordered KDOC to disregard in making its custody status

determination. 1

      To make a claim of denial of due process in violation of the Fourteenth

Amendment, a plaintiff must show the deprivation of a protected liberty or

property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569

(1972). But lawfully incarcerated persons retain only a narrow range of protected


      1
         On appeal, Schmitt makes a second Fourteenth Amendment claim: that he
was deprived of due process when prison officials failed to serve him with the
Rice report, thereby preventing him from grieving his segregation status. Because
this claim is made for the first time on appeal, we need not consider it. Tele-
Commc’ns, Inc. v. C.I.R., 104 F.3d 1229, 1233 (10th Cir. 1997). However, we
note this claim is directly contrary to the facts alleged in Schmitt’s complaint,
which asserts that he received the Rice report on June 5, 2006, the date the report
was issued, and that he grieved the report numerous times.

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liberty interests. Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994).

Ordinarily, a prisoner does not have a liberty interest independently protected by

the Due Process Clause to be placed in the general prison population, rather than

in segregation. Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006).

      But a showing that any prison condition “impose[s] atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life” may

establish the deprivation of a liberty interest. Id. (quotation omitted). In

considering whether Schmitt’s administrative segregation met this standard, we

consider whether: “(1) the segregation relates to and furthers a legitimate

penological interest, such as safety or rehabilitation; (2) the conditions of

placement are extreme; (3) the placement increases the duration of

confinement . . . and (4) the placement is indeterminate.” Estate of DiMarco v.

Wyoming Dep’t of Corrections, Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir.

2007). “[A]ny assessment must be mindful of the primary management role of

prison officials who should be free from second-guessing or micro-management

from the federal courts.” Id.

      We agree with the district court the facts alleged do not support Schmitt’s

claim that the administrative segregation imposed atypical or significant hardship.

Schmitt concedes he was placed in administrative segregation as a result of a

report that found he was planning an escape. Security is clearly a legitimate goal

for prison officials. Schmitt does not assert the placement increased the length of

                                          -7-
his confinement. And, again, Schmitt’s amended complaint makes no allegations

as to the conditions he experienced in administrative segregation. The fact that

Schmitt’s placement was reviewed at monthly intervals and was terminated after

eight months also weighs against any finding of significant hardship. See, e.g.,

id. at 1343 (finding no significant hardship where the segregation was reviewed

every ninety days and lasted for fourteen months, and listing cases holding

segregation for longer periods did not constitute a significant hardship).

      Because Schmitt’s amended complaint does not assert facts supporting a

finding that segregation deprived him of a protected liberty interest, we find the

due process claim was properly dismissed.

      C. First Amendment Claim

      Finally, Schmitt reasserts his claim that Rice deliberately falsified

information in her report in retaliation for his exercise of his First Amendment

right to petition government. On appeal, he argues Rice’s retaliation was

motivated by his successful habeas petition in 2002. 2




      2
          Schmitt also suggests Rice falsified the report in response to
administrative grievances he filed against her personally. This claim is raised for
the first time on appeal. We generally will not pass on claims not raised in the
district court. Tele-Commc’ns, Inc., 104 F.3d at 1233. But we note that, even if
this claim were properly preserved, it would be without merit. The grievances
against Rice cited by Schmitt were all filed after she issued her report.

                                         -8-
      It is well settled that “prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his constitutional rights.” Peterson v.

Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quotations omitted). But “an

inmate is not inoculated from the normal conditions of confinement experienced

by convicted felons serving time in prison merely because he has engaged in

protected activity.” Id. Thus, to prevail on a claim for retaliation, a prisoner must

show that, but for the retaliatory motive, the adverse action would not have taken

place. Id. “An inmate claiming retaliation must allege specific facts showing

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

(quotations omitted).

      The district court dismissed this claim after finding Schmitt failed to show

a causal relationship between his protected activity and his administrative

segregation. We agree.

      Schmitt’s contention that Rice falsified her report in retaliation for his

successful habeas petition in 2002 is not supported by the allegations in the

amended complaint. He asserts no facts suggesting a retaliatory motive related to

his litigation. Moreover, the significant delay in time—Rice authored the report

more than three years after Schmitt’s habeas petition—renders the likelihood of

causation even more remote. On appeal, Schmitt argues the delay can be

explained by the fact that, prior to 2006, Rice had no opportunity to act on her



                                          -9-
animus against him. Even if the amended complaint supported this assertion, it

would not, standing alone, create an inference of causation.

                                 III. Conclusion

      For the foregoing reasons we AFFIRM the dismissal of Schmitt’s § 1983

claims.

                                                   ENTERED FOR THE COURT

                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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