                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                        UNITED STATES COURT OF APPEALS                    August 27, 2014

                                                                        Elisabeth A. Shumaker
                                      TENTH CIRCUIT                         Clerk of Court



    NOAH REED,

          Plaintiff - Appellant,

    v.                                                      No. 14-3034
                                                   (D.C. No. 5:13-CV-03131-SAC)
    JAMES HEIMGARTNER, Warden, El                           (D. Kansas)
    Dorado Correctional Facility; DEANE
    DONLEY, RDU Administrator, El
    Dorado Correctional Facility,

          Defendants - Appellees.




                                   ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.




*
 After examining the briefs and the 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) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Noah Reed, who is incarcerated in state prison in Kansas, filed a pro se civil-rights

complaint under 42 U.S.C. § 1983 in the United States District Court for the District of

Kansas. When the district court conducted its preliminary screening as required by

28 U.S.C. § 1915A(a), it identified four claims: (1) that Plaintiff was unlawfully

confined and had received ineffective assistance of counsel, (2) that he had received

inadequate medical care; (3) that he had suffered racial discrimination; and (4) that he

had been denied access to the courts. It dismissed the first claim because such issues can

only be raised in habeas corpus, and the second because it was identical to claims already

asserted (and dismissed) in a separate case, Reed v. Con Med, No. 12-3244-SAC, 2013

WL 2631638 (D. Kan. June 12, 2013). In response to an order directing him to clarify

his third and fourth claims, Plaintiff filed two supplements with hundreds of pages of

exhibits attached. The district court then dismissed the complaint for failure to state a

claim, and Plaintiff appealed. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

       We review de novo the district court’s dismissal for failure to state a claim. See

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.” Id. (ellipsis and internal quotation marks omitted). We “must assume

that all factual allegations in the complaint are true (even if doubtful in fact).” Id.

(internal quotation marks omitted). But the compliant must provide more than “labels

and conclusions,” id. (internal quotation marks omitted), and “unadorned, the-defendant-

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unlawfully-harmed-me accusation[s],” id. at 1184 (internal quotation marks omitted).

Context is especially important when the claimant is a prisoner. See id. at 1185. For

example, a prisoner “must include sufficient facts to indicate the plausibility that the

actions of which he complains were not reasonably related to legitimate penological

interests,” although he does not have to “identify every potential legitimate interest and

plead against it.” Id. at 1188. “Generally, the sufficiency of a complaint must rest on its

contents alone,” but courts can additionally consider (1) “documents that the complaint

incorporates by reference”; and (2) “documents referred to in the complaint if [they] are

central to the plaintiff’s claim and the parties do not dispute [their] authenticity.” Id. at

1186 (internal quotation marks omitted). Because Plaintiff is acting pro se, “[his]

pleadings are to be construed liberally and held to a less stringent standard than formal

pleadings drafted by lawyers.” Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.

2009) (internal quotation marks omitted). We will not, however, “supply additional

factual allegations to round out [his] complaint or construct a legal theory on [his]

behalf.” Id. (internal quotation marks omitted).

       Plaintiff’s filings are difficult to comprehend. As we read them, he alleges that he

was injured in a car accident in June 2012, because of which he suffers severe chronic

pain. Although his doctors outside the prison prescribed narcotic pain medication, the

prison instead gave him Tramadol, which did not alleviate his pain, and denied him

chiropractic care. Dissatisfied with his treatment, he filed a civil-rights complaint

claiming that he was receiving inadequate medical care in violation of his Eighth
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Amendment rights. See Reed, No. 12-3244-SAC, 2013 WL 2631638. But, he claims,

prison officials interfered with or delayed his efforts to file an amended complaint and an

appeal, which caused the case to be dismissed for failure to state a claim and prevented

him from appealing the dismissal. He also complains that he was put in administrative

segregation, subjected to shakedown searches and “slam cells,” R, Vol. 1 at 11, and was

provided with unsatisfactory food, drinking water, and sleeping conditions. He appears

to claim that these things were done to him because of his race and in retaliation for filing

the first lawsuit and prison grievances.

       We agree with the district court that Plaintiff did not present a plausible claim that

he was treated discriminatorily because of his race. His bare conclusory allegations that

he is African American of Moorish descent and was mistreated because of his race are

insufficient. See Gee, 627 F.3d at 1187 (the facts alleged must be more than “merely

consistent with a defendant’s liability” (internal quotation marks omitted)); Brown v.

Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) (pro se litigants “must do more than make

mere conclusory statements regarding constitutional claims”).

       We also agree with the district court that Plaintiff’s allegations regarding denial of

access to the courts failed to state a claim for relief. To succeed on a denial-of-access

claim, he must show that he suffered actual injury in that he was “frustrated or impeded

in his efforts to pursue a nonfrivolous legal claim.” Gee, 627 F.3d at 1191. That is

something he has not done. When the district court dismissed Plaintiff’s earlier lawsuit

for failure to state a claim, it wrote:
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       While the plaintiff is dissatisfied with the medical attention he received,
       it appears that he was provided a course of treatment to address his medical
       concerns. Plaintiff’s complaint that Con Med officials did not provide the
       course of treatment recommended by other physicians outside the [jail]
       does not state a claim for relief, nor does the fact that he suffered pain
       despite the treatment offered suggest the sort of deliberate indifference
       prohibited by the Eighth Amendment.

See Reed, No. 12-3244-SAC, 2013 WL 2631638, at *2. His submissions in this lawsuit

do not contain anything to suggest that the earlier lawsuit had any hope of succeeding

even if he filed everything he had wanted to file.

       Finally, to the extent that Plaintiff claims that his treatment was retaliatory, his

allegations are inadequate. To plead a plausible retaliation claim, he would have to

(1) “identify constitutionally protected activity”; (2) “describe a responsive action that

would chill a person of ordinary firmness from continuing to engage in that activity”; and

(3) “recite facts indicating that the action was substantially motivated as a response to his

exercise of constitutionally protected conduct.” Gee, 627 F.3d at 1189 (brackets and

internal quotation marks omitted). His allegations on the third prong are insufficient

because he has offered nothing to suggest that he was not in administrative segregation

for the usual reasons, or that the other allegedly retaliatory actions—the shakedown

searches and his less-than-satisfactory living conditions—were not ordinary, legitimate

prison practices. See id. at 1185 (“[A] prisoner claim may not be plausible unless it

alleges facts that explain why the usual justifications for the complained-of acts do not

apply.”).


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We AFFIRM the dismissal of Plaintiff’s claims.

                                 ENTERED FOR THE COURT


                                 Harris L Hartz
                                 Circuit Judge




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