                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

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


    DUSTIN J. MERRYFIELD,

                Plaintiff-Appellant,

    v.                                                    No. 11-3054
                                              (D.C. No. 5:09-CV-03259-JAR-KGS)
    DON JORDAN, Secretary, Kansas                           (D. Kan.)
    Social and Rehabilitation Services;
    LINDA KIDD, Unit Leader; CORY
    TURNER, Administrative Program
    Director; MARILYN PEREZ,
    Therapist; LEO HERMAN,
    Administrative Program Director,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.



         Plaintiff-appellant Dustin J. Merryfield is confined at Larned State Hospital

(LSH) in Larned, Kansas, under the Kansas Sexually Violent Predator Act, as a


*
       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)(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not binding precedent, except under the doctrines of law of the case, res judicata,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.
resident of the Kansas Sexual Predator Treatment Program (SPTP). He brought

this pro se suit in federal district court against defendants under 42 U.S.C. § 1983,

alleging they violated his (1) First Amendment right to send mail and access the

courts, (2) his Fourteenth Amendment right to due process, and (3) his First

Amendment right to present grievances. Plaintiff sued defendants in their official

capacities, seeking only declaratory and prospective injunctive relief. 1 Plaintiff

alleged that he missed an appeal deadline in a state court case because of a delay

in delivery of his mail caused by LSH, that he is not provided due process before

discipline is enforced following a “write up,” and that the institution’s grievance

procedure is constitutionally inadequate.

      Defendants moved to dismiss Mr. Merryfield’s complaint, and the district

court dismissed on the ground that the complaint failed to state a claim upon

which relief could be granted under Federal Rule of Civil Procedure 12(b)(6).

Mr. Merryfield appeals this dismissal. Our jurisdiction is under 28 U.S.C.

§ 1291, and we affirm the dismissal for the reasons set forth below.




1
     Except for Mr. Jordan, defendants are state employees involved with
Mr. Merryfield’s treatment.

                                         -2-
                                           I.

       “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).

“A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2).

      To survive a motion to dismiss, a complaint must contain sufficient
      factual matter, accepted as true, to state a claim to relief that is
      plausible on its face. A claim has facial plausibility when the
      plaintiff pleads factual content that allows the court to draw the
      reasonable inference that the defendant is liable for the misconduct
      alleged. The plausibility standard is not akin to a probability
      requirement, but it asks for more than a sheer possibility that a
      defendant has acted unlawfully. Where a complaint pleads facts that
      are merely consistent with a defendant’s liability, it stops short of the
      line between possibility and plausibility of entitlement to relief.

Gee, 627 F.3d at 1184 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).

                                          II.

      Mr. Merryfield’s first argument concerns the grant to different defendants of

two extensions of time by the district court clerk. Under local Rule 77.2(a), the

district court clerk’s office is authorized to grant certain “orders and judgments

without direction by the court[,]” including an order allowing one fourteen-day

extension of time. Defendants Jordan, Kidd, and Turner obtained one of these

extensions on June 29, 2010, see Aplt. App. at 86, and defendant Herman obtained




                                          -3-
one on August 16, 2010, see id. at 161. In obtaining the extensions, the

defendants followed the procedures set forth in Rule 77.2(b).

      Following each extension, Mr. Merryfield filed a motion asking the court to

review the grant of the extension and arguing that the defendants had failed to

show they had first consulted with him, why the extension was necessary, and

whether any previous extensions had been granted, as required when seeking an

extension of time under local Rule 6.1. The court did not address Mr. Merryfield’s

first motion but denied the second, holding that local Rule 6.1 concerned judicial

issues the clerk was not empowered to reach. The court held that if the drafters

had intended to require parties seeking a clerk’s extension to follow the procedures

set forth in both Rule 6.1 and Rule 77.2, they would have made that requirement

clear. Aplt. App. at 215-16. As support, the court pointed out that Rule 77.2’s

drafters had “expressly incorporate[d] the requirements of other procedural rules.”

Id. at 216.

      Mr. Merryfield argues that the extensions were not properly granted because

defendants failed to follow Rule 6.1, and that the district court therefore lacked

jurisdiction to hear defendants’ two motions to dismiss. He directs our attention to

the unpublished district court case of Clelland v. Glines, No. 02-223-KHV, 2003

WL 221798 (D. Kan. Jan. 29, 2003) (unpublished), arguing that the district court

in that case held that Fed. R. Civ. P. 6(a) is applicable to clerk’s extensions. But

Fed. R. Civ. P. 6(a) is the general district court procedural rule for computing

                                          -4-
time, and Clelland is therefore not relevant to the question at hand, which is

whether defendants were required to follow the procedures in local Rule 6.1 when

obtaining the clerk’s extensions. We agree with the district court that they did not

have to do so. Such a requirement would undermine the entire purpose of local

Rule 77.2(a)(2), which authorizes the clerk to allow one extension of time without

court involvement.

                                          III.

      In his second point on appeal, Mr. Merryfield challenges the dismissal of his

claim that his right to access the courts was violated by defendants’ interference

with his outgoing mail. Mr. Merryfield asserted that the Kansas Court of Appeals

dismissed an appeal of his as untimely, despite that fact that he had submitted it to

LSH officials for mailing six days prior to the filing deadline.

      The district court first noted that Mr. Merryfield’s claims were brought

against defendants in their official capacity and were thus essentially claims

against the State of Kansas. The court noted that such claims were generally

barred by Eleventh Amendment, but that under Ex Parte Young, 209 U.S. 123,

159-60 (1908), an individual seeking only prospective injunctive relief for ongoing

violations of federal law may bring suit against state officials in federal court.

Mr. Merryfield asserted in the district court that he was seeking prospective

injunctive relief. The district court held that Mr. Merryfield’s court-access claim

alleged only a single instance of inadvertently mishandled or delayed outgoing

                                          -5-
mail and not “a deliberate or intentional impediment resulting in an ongoing

violation of his right to access.” Aplt. App. at 252 (citing Simkins v. Bruce,

406 F.3d 1239, 1242 (10th Cir. 2005)). It thus dismissed the claim for failing to

allege an ongoing violation of his right of access.

      In order to succeed on a denial-of-access claim, “a prisoner must

demonstrate actual injury from interference with his access to the courts—that is,

that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous

legal claim concerning his conviction or his conditions of confinement.” Gee,

627 F.3d at 1191. Mr. Merryfield first argues on appeal that “[t]he Plaintiff’s right

to access the court does not require him to suffer multiple injuries in order to have

a viable claim.” Aplt. Br. at 6. He directs our attention to Simkins v. Bruce,

supra, arguing that it presents an analogous instance of prison employees

improperly holding an inmate’s mail. But the inmate in Simkins did not sue the

prison employees in their official capacities. Because Mr. Merryfield is suing the

defendants in their official capacities and is seeking prospective injunctive relief,

he must allege that there is an ongoing violation of his rights. “In determining

whether the doctrine of Young avoids an Eleventh Amendment bar [to suit against

state officers sued in their official capacities], a court need only conduct a

‘straightforward inquiry into whether the complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.’” Verizon

Maryland, Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002) (internal brackets

                                          -6-
omitted) (quoting Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 296 (1997)

(plurality) (O’Connor, J., concurring in part)); see also Muscogee (Creek) Nation

v. Okla. Tax Comm’n, 611 F.3d 1222, 1232 (10th Cir. 2010) (quoting Verizon).

      Mr. Merryfield also briefly argues that he asserted an ongoing violation of

his rights in his complaint because he asserted that “[t]his same system causes

harm to the Plaintiff in other cases due to the fact he has to wait until the Unit

Leader can fit it into her schedule to get his mail mailed out.” Aplt. App. at 10.

But this conclusory allegation is insufficient to state a claim. LHS’s mail system

clearly does not prevent the timely filing of legal mail in all cases. After all,

Mr. Merryfield’s complaint sets forth forty-five separate federal and civil actions

that he has pursued since October 2007. And Mr. Merryfield’s allegations shed no

light on why, in certain instances, his mail is delayed to the point that his filings

are untimely. There is no allegation that the unusual delays were caused by

anything other than negligence, which does not rise to the level of a constitutional

violation. See Simkins, 406 F.3d at 1242 (holding that “plaintiff’s claim that a

right of access to the courts has been impeded requires him to allege intentional

conduct interfering with his legal mail” and that “when access to courts is impeded

by mere negligence, as when legal mail is inadvertently lost or misdirected, no

constitutional violation occurs.”). Further, the only harm that he has asserted was

caused by these other unspecified delays is that “he has been warned” by the

courts and defendants in those unspecified cases. Id. Even if we assume for the

                                           -7-
sake of argument that he has been “warned” because of late filings that occurred

due to intentional conduct on the part of LSH, he does not allege that these

warnings caused him any actual prejudice; nor does he assert that the cases in

which these warnings occurred concerned his conditions of confinement, or show

that any of the claims involved were not frivolous.

                                          IV.

      Mr. Merryfield’s next allegation on appeal is that the district court erred in

holding that defendants did not violate his constitutional rights by failing to give

him due process before imposing adverse consequences in response to a “write up”

he received in June 2008. Aplt. App. at 9, 11. Mr. Merryfield does not contest the

district court’s conclusion that his claim asserted that

      defendants violated his due process rights for any punishment other
      than a security level drop; defendants failed to follow [LSH’s internal
      grievance procedure], he was denied the right to confront and
      cross-examine any witnesses against him, and to present favorable
      evidence and witnesses; he was denied legal counsel; and he did not
      receive advance notice of the hearing date.

Aplt. App. at 253. The district court ruled that: (1) “for the most part,”

Mr. Merryfield’s claims were too conclusory to state a federal due process

violation; (2) his complaint failed to allege facts demonstrating that he has a

liberty interest in being at a particular phase level of the treatment program;

(3) his complaint failed to “identify any fundamental rights that were affected by

the reduction in [his] security level.” Aplt. App. at 253-54.


                                          -8-
      On appeal, Mr. Merryfield first cites to a number of opinions from the Ninth

Circuit and federal district courts in California holding, generally, that if a civilly

committed person is confined in conditions identical to, similar to, or more

restrictive than his criminal counterparts, that treatment is presumptively punitive.

Mr. Merryfield then directs our attention to an unpublished decision from the

Kansas Court of Appeals in which he was a party, see Merryfield v. Turner,

No. 100,059, 2008 WL 4239118 (Kan. App. Sept. 12, 2008) (per curiam)

(unpublished), and argues that the court there held that he is entitled to the same

due process procedures with regard to a disciplinary write-up as his criminal

counterparts.

      In that case, Mr. Merryfield raised substantially the same argument as he

has raised here:

      Merryfield argues as an SPTP resident he is entitled to the same
      procedural safeguards that prison inmates are entitled to receive,
      including advance written notice of any charges, a hearing before an
      impartial person, the right to be present at the hearing, the ability to
      present evidence at the hearing, the right to testify on his own behalf,
      the right to call witnesses, the ability to confront and cross-examine
      witnesses, assistance of counsel in certain situations or staff
      assistance pursuant to K.A.R. 44–13–408, and review by a court of
      law.

Id. at *5. The Kansas Court of Appeals examined the due process rights afforded

an inmate in Kansas when a disciplinary action implicated a liberty interest. It

then held that the safeguards set forth in the SPTP handbook complied with those




                                           -9-
due process rights. Id. But the court did not rule that Mr. Merryfield is

constitutionally entitled to those same due process proceedings. See id.

      Moreover, the liberty interest at stake for the prisoners in the disciplinary

due process cases cited by the Kansas appellate court, was the loss of good time

credit. See Hogue v. Bruce, 113 P.3d 234, 237-38 (Kan. 2005); Dawson v. Bruce,

138 P.3d 1234, 1236 (Kan. App. 2006). Kansas has held that the loss of good-time

credits already earned constitutes the deprivation of a liberty interest because the

State of Kansas has created a statutory right to those credits. See In re Pierpoint,

24 P.3d 128, 133-35 (Kan. 2001). Mr. Merryfield’s complaint failed to allege any

facts showing the deprivation of a similar liberty interest.

      He attempts to remedy this failure on appeal by asserting that (1) he was

told by officials at the SPTP that “the only manner in which he would be able to

regain his freedom is by earning and maintaining certain levels within the

[SPTP],” Aplt. Br. at 13; (2) that the incident for which he received the “write up”

in this case occurred in the “Intensive Treatment Unit (ITU)” where, evidently in

spite of the name, he allegedly receives no sexual predator treatment, 2 id. at 14;


2
       The unpublished opinion from the Kansas Court of Appeals to which
Mr. Merryfield directed our attention, and that we discussed above, also addresses
a previous claim by Mr. Merryfield regarding the ITU. See Merryfield v. Turner,
No. 100,059, 2008 WL 4239118 (Kan. App. Sept. 12, 2008) (per curiam)
(unpublished). In that matter, he complained in state court of being placed in the
ITU—only he complained that the placement constituted “forced treatment” in
violation of his First Amendment rights. Id. at *2. The court in that matter
                                                                      (continued...)

                                         -10-
(3) that the incident resulted in a drop in his ITU therapy level; and (4) that this

ITU “step” drop will keep him in the ITU for a longer period of time, consequently

keeping him from earning higher levels in the SPTP, and therefore keeping him

civilly committed for a longer period of time. He therefore claims that he has a

liberty interest in exiting the ITU as quickly as possible and that, therefore, he was

entitled to the same due process rights afforded an inmate in Kansas when a

disciplinary action against the inmate implicates a liberty interest. 3


2
    (...continued)
    quoted the section on the ITU from the “Resident Handbook” for participants in
    the SPTP, as follows:

          ITU is intended as an opportunity for residents to prepare themselves
          and their emotions & thought processes, in order to be successful
          when returned to the regular program. ITU will focus on issues such
          as stress tolerance, self-regulation (especially emotional regulation
          and decision-making, such as coping with anger), a heightened level
          of awareness (sometimes called mindfulness), greater effectiveness
          in your dealings with others (residents, staff and significant persons
          in you[r] life), and individual issues identified by you and your
          treatment providers. Much of the treatment you receive here will be
          guided by principles of an approach called Dialectical Behavior
          Therapy, or DBT.

    Id. (quotation marks omitted).
    3
           Mr. Merryfield does not argue in this case that the treatment provided by
    the SPTP, including the ITU portion of that program, is constitutionally
    inadequate. See Merryfield v. Kansas, 241 P.3d 573, 577 (Kan. App. 2010)
    (wherein Mr. Merryfield did make such an argument). His complaint asserted
    only that he had been placed on “24 hours restriction and a reduction to security
    level 0[,]” Aplt. App. at 11, and included no allegations describing his sexual
    predator treatment generally, his treatment in ITU, or the differences between the
    various treatment levels.

                                           -11-
      None of these facts were alleged in his complaint. “Absent extraordinary

circumstances, we will not consider arguments raised for the first time on appeal.”

Turner v. Pub. Serv. Co., 563 F.3d 1136, 1143 (10th Cir. 2009). Generally, we

deem such arguments to be waived. See, e.g., Richison v. Ernest Group, Inc.,

634 F.3d 1123, 1127 (10th Cir. 2011). Although Mr. Merryfield was appearing

pro se in the district court, this did not relieve him of the “burden of alleging

sufficient facts on which a recognized legal claim could be based.” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We held in Hall that while “the

plaintiff whose factual allegations are close to stating a claim but are missing

some important element that may not have occurred to him, should be allowed to

amend his complaint,” “conclusory allegations without supporting factual

averments are insufficient to state a claim on which relief can be based.” Id.

      Mr. Merryfield does not contend that this argument—based upon newly

asserted facts—was omitted from his district court papers through inadvertence or

neglect. That is, he does not contend that the argument should be deemed only

forfeited and not waived. See Richison, 634 F.3d 1123, 1127–28 (“If the theory

was intentionally relinquished or abandoned in the district court, we usually deem

it waived and refuse to consider it. By contrast, if the theory simply wasn’t raised

before the district court, we usually hold it forfeited.” (citations omitted)). Nor

does he assert that we should review this argument for plain error. And “the

failure to argue for plain error and its application on appeal[ ]surely marks the end

                                          -12-
of the road for an argument for reversal not first presented to the district court.”

Richison, 634 F.3d at 1131. Accordingly, we decline to consider this

late-blooming argument.

                                           V.

      Mr. Merryfield’s final argument on appeal is that the district court erred in

dismissing his claim that the grievance system at LSH is constitutionally

inadequate and violates his First Amendment rights. The district court concluded

that Mr. Merryfield “ha[d] identified no federal constitutional right to an

institutional grievance procedure and fail[ed] to allege how injunctive relief as

against any named defendant would afford him a proper remedy for some claimed

violation.” Aplt. App. at 255. The court held:

      Plaintiff is alleging statutory not constitutional violations. Plaintiff
      has not alleged how any failure in the grievance procedure has
      resulted in an actual violation of his constitutional rights. Even taken
      as true, plaintiff’s allegations do not state a deprivation of federal
      law, as there is no federal constitutional right to an institutional
      grievance procedure.

Id.

      The district court is correct. Mr. Merryfield’s complaint cites to a number

of federal cases that concern the general proposition that exhaustion of

administrative remedies prior to filing a federal lawsuit is not required where the

administrative remedies are futile or fail to provide adequate relief. He then

asserts that he has extrapolated from those cases a number of characteristics that a


                                          -13-
grievance system is required to have and then proceeds to examine those

characteristics and assert that LSH’s grievance system does not have them. But

there is no explanation as to how these cases amount to a constitutional right to

have certain grievance procedures implemented. Moreover, there is no indication

that a failure to exhaust has played any role in the present case. Thus,

Mr. Merryfield does not aver facts that tend to establish a plausible claim for

relief.

          Mr. Merryfield next asks this court to hold that he showed a violation of his

due process rights because he had a liberty interest in defendants following Kansas

state law. He argues that “the state laws in question limit [defendants’] discretion

concerning grievances and outlines a specific method and system that must be

provided. Thus, the state laws presented grant the Plaintiff a liberty interest,

which is protected by the United States Constitution and is a viable claim under

42 U.S.C. § 1983.” Aplt. Br. at 12.

          This argument was not raised below. In his complaint, Mr. Merryfield set

forth a number of criteria that he asserted a constitutionally adequate grievance

system must have, and then asserted “that the criteria set forth above [are] not

available in the administrative relief/grievance system provided and made

available to the Plaintiff.” Aplt. App. at 19. He did not argue that he had a due

process right to have certain state laws followed. Again, “[a]bsent extraordinary

circumstances, we will not consider arguments raised for the first time on appeal.”

                                            -14-
Turner, 563 F.3d at 1143. And Mr. Merryfield has not asked us to review the

argument for plain error. Consequently, we decline to consider it. See Richison,

634 F.3d at 1131.

                                        VI.

      For the foregoing reasons, the district court’s judgment dismissing

Mr. Merryfield’s complaint under Federal Rule of Civil Procedure 12(b)(6) is

AFFIRMED.



                                                   Entered for the Court



                                                   Jerome A. Holmes
                                                   Circuit Judge




                                        -15-
