                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        February 21, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 DARREL ALAN HYBERG, JR.,

       Plaintiff - Appellant,

 v.                                                          No. 19-1155
                                                 (D.C. No. 1:18-CV-00014-RM-NRN)
 KEN ENSLOW; TOM RITTENHOUSE;                                 (D. Colo.)
 TIM QUINN; MIKE CUNNINGHAM,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Darrel Alan Hyberg, Jr., appeals the dismissal of his pro se complaint alleging

prison staff subjected him to retaliation and unreasonable strip searches in violation

of his First and Fourth Amendment rights. We affirm.

                                           I

      Hyberg is an inmate at the Sterling Correctional Facility, where he works at

the Colorado Correctional Industries Seating Factory. According to the complaint,


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
“[s]trip searches are a routine part of life for inmates at Sterling,” and “Hyberg can

be subjected to a strip search every time he enters or leaves the Seating Factory at the

beginning or end of his shift.” R. at 11, para. 1-2. Although Hyberg has a medical

condition that makes him especially sensitive to searches, his claims stem from two

searches in particular.

      First, on January 24, 2017, Defendant Rittenhouse ordered Hyberg to present

his body for visual inspection after completing his shift at the Seating Factory.

Defendant Enslow conducted the search. Hyberg entered the common area used for

strip searches, where three other inmates were present. He entered one of four

booths, which “provided no real privacy due to the height” and depth of the walls,

and because there were “no screens or privacy barriers.” Id. at 14, para. 24. While

Hyberg was naked, Enslow ordered him to lift his arms, put his fingers in his mouth

to demonstrate he was not concealing anything, separate his penis from his scrotum

and lift his scrotum, turn around and lift his feet to inspect between his toes, bend

over and spread his buttocks, and squat and cough. Hyberg performed these

movements in view of three inmates, two of whom were less than five feet away. On

February 13, 2017, Hyberg filed a grievance complaining that this search violated

prison regulations. Afterwards, the booths used for the strip searches were rebuilt

and a curtain was installed in one booth.

      The second strip search at issue was conducted on April 17, 2017. Again,

Rittenhouse ordered Hyberg to submit to a strip search at the end of his shift.

Defendant Quinn conducted the search, and as before, three other inmates were in the

                                            2
common area where the search was performed. Quinn directed Hyberg to the booth

with the curtain and said, “You get the cubicle with the curtain, [j]ust for you[.]” Id.

at 18, para. 56 (internal quotation marks omitted). He required Hyberg to perform

the same movements as before, but after giving the final command, Quinn

immediately stepped back and purposely allowed another inmate to walk between

himself and Hyberg so the other inmate could see Hyberg naked. Surprised, the other

inmate raised his hands and said, “Whoa-whoa-whoa,” as he walked out of the search

area. Id. at 19, para. 65 (capitalization omitted). The next day, curtains were

installed on the other booths and a sign was displayed, stating, “Stop Read and

Listen[.] No Entrance or Exit Without Staff Approval[.]” Id., para 68.

      Based on these allegations, Hyberg asserted Fourth Amendment unreasonable

search claims against Rittenhouse, Enslow, Quinn, and their supervisor, Defendant

Cunningham. Hyberg also brought a First Amendment retaliation claim against

Quinn, alleging Quinn told him to use the booth with the curtain “in a very

demeaning and derogatory way” in retaliation for filing the February 13 grievance.

Id. at 28, para. 123. Defendants moved to dismiss the suit under Federal Rule of

Civil Procedure 12(b)(6), and in his response, Hyberg sought leave to amend his

complaint, although he provided no new factual allegations. He did, however,

separately file a “supplement” to his complaint in which he alleged that after he

complained about the searches, he stopped receiving monthly performance

evaluations for his work at the Seating Factory. Id. at 117. Although he continued

working, he averred that when he finally did receive his evaluations, he noticed his

                                           3
performance scores were lower than his previous scores and that the lower scores

coincided with his complaints about the searches. Hyberg therefore sought to bring

two additional retaliation claims, one against Quinn for giving him lower scores and

the other against Enslow for withholding the evaluations.

       The district court adopted a magistrate judge’s report and recommendation and

dismissed the complaint, concluding that Hyberg failed to state a violation of either

the First or the Fourth Amendment. The court also denied him leave to amend the

complaint, ruling that amendment would be futile because the proposed allegations in

the supplement still failed to state a First Amendment claim.

                                             II

       “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure

to state a claim.” Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010). “In

reviewing the district court’s dismissal pursuant to Rule 12(b)(6), we assume the

factual allegations are true and ask whether it is plausible that the plaintiff is entitled

to relief.” Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). We also

must be mindful that:

       [p]risons are a unique environment, and the Supreme Court has
       repeatedly recognized that the role of the Constitution within their walls
       is quite limited. Government conduct that would be unacceptable, even
       outrageous, in another setting may be acceptable, even necessary, in a
       prison. Consequently, a prisoner claim will often not be plausible
       unless it recites facts that might well be unnecessary in other contexts.

Gee, 627 F.3d at 1185. Accordingly, our analysis of the plausibility of Hyberg’s

claims must be cognizant of the prison context underlying his allegations.


                                             4
       A. Fourth Amendment

       Hyberg claims that defendants subjected him to unreasonable public strip

searches in violation of the Fourth Amendment. “The Fourth Amendment prohibits

only unreasonable searches,” Bell v. Wolfish, 441 U.S. 520, 558 (1979), and while an

inmate’s right to privacy “does not vanish altogether,” it “must yield to the penal

institution’s need to maintain security,” Farmer v. Perrill, 288 F.3d 1254, 1259

(10th Cir. 2002) (internal quotation marks omitted). Indeed, the Supreme Court has

held that “correctional officials must be permitted to devise reasonable search

policies to detect and deter the possession of contraband in their facilities.” Florence

v. Bd. of Chosen Freeholders, 566 U.S. 318, 328 (2012). In evaluating the

reasonableness of a search, including a search of the nature alleged here, “[c]ourts

must consider the scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in which it is conducted.”

Bell, 441 U.S. at 559. These factors aim to “[b]alanc[e] the significant and legitimate

security interests of the institution against the privacy interests of the inmates.” Id. at

560. “[A] regulation impinging on an inmate’s constitutional rights must be upheld if

it is reasonably related to legitimate penological interests.” Florence, 566 U.S. at

326 (internal quotation marks omitted).

       The scope of the searches here was undeniably invasive. Indeed, “[t]here can

be no doubt that a strip search is an invasion of personal rights of the first

magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). At the same

time, however, there are obvious security concerns inherent when an inmate will be

                                            5
placed in the general prison population. Archuleta v. Wagner, 523 F.3d 1278, 1284

(10th Cir. 2008). Hyberg was returning to general population when he was subjected

to the searches at the end of his shifts at the Seating Factory. There were therefore

legitimate security interests served by the searches. Moreover, the searches were

conducted in a uniform manner, following routine protocol, in a designated area with

limited access for other inmates and staff. See Farmer, 288 F.3d at 1260

(recognizing a strip search may be unreasonable if conducted in the open, “visible to

a number of other inmates and staff,” and without regard for the inmate’s privacy

interests); see also id. at 1261 (“[I]nfringements on prisoners’ constitutional rights

must not be arbitrary or irrational, nor an exaggerated response to security needs.”

(internal quotation marks omitted)); Daughtery v. Harris, 476 F.2d 292, 294

(10th Cir. 1973) (rejecting contention that rectal cavity searches must be conducted

by medical doctors in complete privacy). Although Hyberg alleged Quinn conducted

the April 17 search “in a very demeaning and derogatory way,” R. at 28, para. 123,

his conclusory allegations do not support an inference of abuse, see Gallagher,

587 F.3d at 1068 (“Conclusory allegations are not enough to withstand a motion to

dismiss.”). He alleged Quinn said, “You get the cubicle with the curtain, [j]ust for

you,” R. at 18, para. 56 (internal quotation marks omitted), and then “maliciously”

allowed another inmate to walk between them, id. at 19, para. 62. But this is not the

type of conduct courts have found to be needlessly intrusive or abusive. Cf., e.g.,

Hayes v. Marriott, 70 F.3d 1144, 1147 (10th Cir. 1995) (reversing grant of summary

judgment on Fourth Amendment claim where inmate alleged he was subjected to a

                                            6
video recorded “body cavity search [conducted] in the presence of over 100 people,

including female secretaries and case managers from other buildings”); Calhoun v.

DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (holding inmate stated an Eighth

Amendment claim by alleging that during search, guards made “ribald comments and

sexually explicit gestures,” “forced him to perform sexually provocative acts,” and

female guards “were neither mere passersby nor performing [a] legitimate

penological function,” but “were instead invited spectators” (internal quotation marks

omitted)). Balancing the relevant considerations, Hyberg’s allegations fail to state a

plausible violation of the Fourth Amendment.

      B. First Amendment

      Hyberg also claims Quinn retaliated against him for filing the February 13

grievance by telling him “in a very demeaning and derogatory way” that the booth

with the curtain was just for him. R. at 28, para 123. “[P]rison 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)

(internal quotation marks omitted). The First Amendment protects inmates from

retaliation for filing administrative grievances. See Gee, 627 F.3d at 1189. To state

a First Amendment retaliation claim, an inmate must allege:

          (1) that [he] was engaged in constitutionally protected activity;
          (2) that the defendant’s actions caused [him] 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 inmate’s] exercise of
          constitutionally protected conduct.


                                           7
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). This third element

requires an inmate to establish “that but for the retaliatory motive, the incidents to

which he refers . . . would not have taken place.” Peterson, 149 F.3d at 1144

(internal quotation marks omitted).

         Defendants concede Hyberg satisfied the first element by filing the February

13 grievance. See Aplee. Br. at 16. Nonetheless, the claim falters on the second

element because Quinn’s isolated comment would not cause a person of ordinary

firmness to refrain from filing a grievance. The standard for assessing the chilling

effect on protected activity is objective, and “a trivial or de minimis injury will not

support a retaliat[ion] . . . claim.” Shero, 510 F.3d at 1203 (internal quotation marks

omitted). Hyberg alleged Quinn performed the April 2017 search “in a very

demeaning and derogatory way,” R. at 28, para. 123, because he said, “You get the

cubicle with the curtain, [j]ust for you,” id. at 18, para. 56 (internal quotation marks

omitted). But even if Quinn intended this comment to be derogatory or sarcastic, it

was trivial and would not deter a person of ordinary firmness from filing a grievance.

See Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018) (recognizing that

“insulting, disrespectful, or sarcastic comments directed at an inmate,” while

“unprofessional and unpleasant,” “do not constitute adverse action sufficient to

support a retaliation claim”). Hyberg failed to state a plausible First Amendment

claim.




                                            8
      C. Denial of Leave to Amend

      Finally, Hyberg contends the district court erred in denying him leave to

amend his complaint. Because the district court denied leave to amend on grounds of

futility, we review the legal basis for the finding of futility de novo. See Fields v.

City of Tulsa, 753 F.3d 1000, 1012 (10th Cir. 2014). “A proposed amendment is

futile if the complaint, as amended, would be subject to dismissal.” Id. (internal

quotation marks omitted).

      Hyberg sought to add two First Amendment retaliation claims, one against

Quinn for reducing his work performance scores and the other against Enslow for

withholding his performance evaluations. Although filing a grievance is protected

activity for purposes of satisfying the first element of a retaliation claim, Hyberg’s

supplemental allegations fail to satisfy the second element under the particular facts

of this case. Indeed, neither the reduction of Hyberg’s scores, nor the withholding of

his evaluations, would deter a person of ordinary firmness from filing a grievance

under the facts alleged here because both actions were entirely inconsequential to

Hyberg. The supplemental allegations indicate that he continued working

uninterrupted at the Seating Factory, without any ramifications at all. He alleged that

he did not even know Quinn was giving him lower scores for almost two years—from

April 2017 until January 2019. And while it is unclear whether he knew Enslow was

withholding his evaluations during that time, there are no allegations that Hyberg

requested them or suffered any adverse action because he did not have access to

them. Under these particular circumstances, the alleged misconduct would not deter

                                            9
a person of ordinary firmness from engaging in protected activity. Hyberg’s claims

would be subject to dismissal, and therefore, the district court properly denied him

leave to amend.

                                          III

      The judgment of the district court is affirmed. Hyberg’s motion to proceed

without prepayment of fees is granted, and he is reminded of his obligation to

continue making partial payments toward his appellate filing fee until the entire

balance is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).



                                                     Entered for the Court


                                                     Bobby R. Baldock
                                                     Circuit Judge




                                          10
