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

                                    TENTH CIRCUIT                         January 10, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 ANTHONY MAURICE SMALLS,

        Plaintiff - Appellant,

 v.                                                          No. 11-3113
                                                 (D.C. No. 10-CV-03025-JTM-KMH)
 SCOTT P. STERMER, Assistant Trustee,                         (D. Kan.)
 Department of Justice, Office of the
 Federal Detention Trustee, in his
 individual and official capacity; D.T.
 HININGER, STEVEN CONRY,
 CHARLIE MARTIN, Representatives,
 Corrections Corporation of America, in
 their individual and official capacities;
 SHELTON RICHARDSON, Warden,
 CCA-Leavenworth, in his individual and
 official capacity; J. MICHAEL
 STOUFFERS, Commissioner, Maryland
 Division of Corrections, in his individual
 and official capacity,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*



* After examining appellant=s brief 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.


       Plaintiff-Appellant Anthony Smalls appeals the district court’s dismissal of his

claims challenging the conditions of his confinement at the Leavenworth Detention

Center (“LDC”). Having jurisdiction under 28 U.S.C. § 1291, we affirm.1

                                     I. Background

       Smalls was convicted of several criminal offenses in Maryland state court,

sentenced to life in prison plus thirty years, and committed to the custody of the

Maryland Division of Corrections (“MDOC”). Pursuant to an agreement between

MDOC and the federal government, MDOC transferred physical custody of Smalls to the

U.S. Marshals Service (“USMS”), which assigned him to the federal detention center in

Leavenworth, Kansas. Smalls remained there for eleven months, from June 2009 through

May 2010.

       Smalls sued a number of federal and Maryland officials, in both their individual

and official capacities, arguing that the conditions of his confinement at the LDC denied

him due process/access to the courts and equal protection of the laws. The district court

dismissed Smalls’s claims against all Defendants. Smalls v. Stermer, No. 10-3025-JTM,


1
  The district court granted Smalls permission to pursue this appeal in forma pauperis.
See 28 U.S.C. § 1915(a). This court previously denied Smalls’s motion for the
appointment of counsel. Since then, he has filed two additional motions seeking
appointment of counsel. We deny those motions, as well. We grant Smalls’s requests to
file two supplemental briefs and we have considered those. Defendants-Appellees have
declined to file any brief.

                                             2
2011 WL 1234781, at *13 (D. Kan. Mar. 31, 2011). Liberally construing his arguments,

see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), on appeal Small

challenges only the dismissal of his claims asserted against Defendants Stouffers2 and

Richardson.

    II. Dismissal of Smalls’s claims against Defendant Stouffers for lack of personal
                                       jurisdiction

        The district court, acting pursuant to Fed. R. Civ. P. 12(b)(2), dismissed Smalls’s

claims against Defendant J. Michael Stouffers, the MDOC commissioner, without

prejudice, concluding the federal court in Kansas did not have personal jurisdiction over

him. Smalls, 2011 WL 1234781, at *1, *3-*4. We review questions of personal

jurisdiction de novo. See ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200, 1214

(10th Cir. 2011). Smalls bears the burden of establishing personal jurisdiction over

Stouffers. See Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th

Cir. 1999). “When, as in this case, a district court grants a motion to dismiss for lack of

personal jurisdiction without conducting an evidentiary hearing, the plaintiff need only

make a prima facie showing of personal jurisdiction.” Id. (internal quotation marks

omitted).

        “In determining whether a federal court has personal jurisdiction over a defendant,

the court must determine (1) whether the applicable statute potentially confers

jurisdiction by authorizing service of process on the defendant and (2) whether the

2
 The complaint refers to this defendant as both Stouffers and Stouffer; his own pleadings
use Stouffer.
                                              3
exercise of jurisdiction comports with due process.” Trujillo v. Williams, 465 F.3d 1210,

1217 (10th Cir. 2006) (internal quotation marks omitted). Smalls sued Stouffers under 42

U.S.C. § 1983, which “does not, by itself, confer nationwide service of process or

jurisdiction upon federal district courts to adjudicate claims,” Trujillo, 465 F.3d at 1217.

Therefore, we look to Fed. R. Civ. P. 4(k)(1)(A), which in turn refers us to the Kansas

long-arm statute. See Trujillo, 465 F.3d at 1217. Because the Kansas long-arm statute,

Kan. Stat. § 60-308, “allow[s] jurisdiction to the full extent permitted by due process,”

TH Agric. & Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 1287 (10th Cir.

2007) (internal quotation marks omitted), the question presented here is whether

exercising personal jurisdiction over Stouffers comports with due process. See Trujillo,

465 F.3d at 1217.

       “The exercise of jurisdiction over a nonresident defendant comports with due

process so long as there exist minimum contacts between the defendant and the forum

State.” Id. (internal quotation marks omitted). “The minimum contacts necessary for

specific personal jurisdiction may be established where the defendant has purposefully

directed [his] activities toward the forum jurisdiction and where the underlying action is

based upon activities that arise out of or relate to the defendant’s contacts with the

forum.”3 Id. at 1218 (internal quotation marks omitted).


3
  “The minimum contacts standard is also justified, and a court may maintain general
jurisdiction over a nonresident defendant, based on the defendant’s continuous and
systematic general business contacts in the forum state.” Trujillo, 465 F.3d at 1218 n.7.
But Smalls has not alleged, nor is there any indication that he could allege, that Stouffers
                                              4
       Liberally construing his pleadings, Smalls alleged that Stouffers transferred him to

federal custody, knowing the following: federal officials were placing Maryland inmates

in the LDC; the LDC was generally a detention center for pretrial detainees and was,

thus, not accustomed to holding convicted inmates such as Smalls; LDC officials were

holding Maryland inmates in administrative segregation; and the LDC was not providing

Maryland inmates with access to adequate legal resources. But the documents that

Smalls attached to his complaint establish that it was federal officials, not Stouffers, who

decided in what federal facility to place Smalls. In light of that, Stouffers did not

purposefully direct his activities toward Kansas and thus would not have expected to be

haled into court there. Cf. Hannon v. Beard, 524 F.3d 275, 284 (1st Cir. 2008) (holding

Massachusetts courts had personal jurisdiction over director of Pennsylvania Department

of Corrections based upon the director’s own contacts with Massachusetts in arranging to

transfer a Pennsylvania inmate to Massachusetts, where inmate’s claim brought in

Massachusetts court challenged that transfer as retaliatory). A party’s purposeful

availment of the privilege of conducting activities in the forum state cannot be “based on

the unilateral actions of another party.” Id. (internal quotation marks omitted).

Therefore, the district court did not err in dismissing Smalls’s claims against Stouffers

without prejudice for lack of personal jurisdiction.

III. Dismissal of Smalls’s claims against Defendant Richardson for failing to state a
                      claim upon which relief can be granted4

engaged in such systematic and continuous activity in Kansas.
4
  In affirming the district court’s Rule 12(b)(6) determination that Smalls failed to state a
                                              5
       Defendant Shelton Richardson is the warden of the LDC and an employee of

Corrections Corporation of America (“CCA”), which operates the LDC pursuant to a

contract with the federal government. Pursuant to Fed. R. Civ. P. 12(b)(6), the district

court dismissed Smalls’s claims against him with prejudice, concluding Smalls had failed

to state any claim upon which relief could be granted. Smalls, 2011 WL 1234781, at *6-

*10. We review Rule 12(b)(6) dismissals “de novo, accepting factual allegations as true

and considering them in the light most favorable to the plaintiff” Smalls. Tomlinson v.

El Paso Corp., 653 F.3d 1281, 1285-86 (10th Cir. 2011), petition for cert. filed, (U.S.

Dec. 22, 2011) (No. 11-795). Smalls alleged the following two claims against

Richardson.5

A. Richardson denied Smalls access to the courts

       “[T]he fundamental constitutional right of access to the courts requires prison



claim upon which relief can be granted, we need not consider the district court’s further
conclusions that Smalls failed to exhaust his administrative remedies as to these claims
and failed to allege that Defendant Richardson personally participated in the alleged
constitutional violations. Smalls, 2011 WL 1234781, at *8, *11-*12.
5
  Although Smalls asserted these claims against Richardson under 42 U.S.C. § 1983, that
statute only provides a cause of action against state actors. Because Richardson is not a
state official but is acting under a contract with federal officials, the district court
construed Smalls’s allegations against Richardson as claims asserted under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Smalls,
2011 WL 1234781, at *7; see Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (noting
that where Bivens applies, it is the “federal analog” to § 1983). Further, the district court
assumed that Richardson, a CCA employee, is amenable to suit under Bivens. Smalls,
2011 WL 1234781, at *7. For our purposes here, we make the same assumption, without
deciding the issue.
                                              6
authorities to assist inmates in the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate assistance from persons

trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). Smalls alleged that the

legal resources Richardson provided the Maryland inmates, and the manner in which he

provided those resources, deprived Smalls of access to the courts. To state such a claim,

however, Smalls had to allege that he suffered an actual injury from Richardson’s

interference with his access to the courts; that is, Smalls had to allege that he “was

frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his

conviction or his conditions of confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191

(10th Cir. 2010) (citing Lewis v. Casey, 518 U.S. 343, 351-55 (1996)).

       Smalls alleged that he did suffer an actual injury. During the time he was housed

at the LDC, Smalls, acting pro se, was seeking to reopen post-conviction proceedings in

Maryland state court in order to challenge his criminal convictions. Smalls asserted that,

because he could not conduct adequate research at the LDC, he was unable to challenge

the timeliness and propriety of the State of Maryland’s request for additional time to file

a response to his petition to reopen those post-conviction proceedings. But such an injury

is insufficient to state a claim for the denial of access to the courts. The fact that the

Maryland court permitted the State additional time to answer Smalls’s petition to reopen

the post-conviction proceedings did not interfere with his ability to pursue the substantive

relief he was seeking in state court. And Smalls alleged that he had already prepared his

petition to reopen the state post-conviction proceedings before he was transferred to the
                                               7
LDC. In any event, Smalls failed to show that his petition to reopen the state post-

conviction proceedings was nonfrivolous. The district court, therefore, did not err in

dismissing this claim under Rule 12(b)(6).

       On appeal, Smalls asserts that the Maryland court has now denied his motion to

reopen the Maryland post-conviction proceedings. But Smalls does not assert that the

state court’s denial was in any way linked to his claims that Richardson denied him

access to the courts. See Simkins v. Bruce. 406 F.3d 1239, 1244 (10th Cir. 2005) (noting

that an inmate would fail to allege the requisite actual injury where the underlying case

was adversely decided on grounds unrelated to any alleged impediment created by prison

officials). And any such conclusory allegation would be insufficient to establish the

actual injury needed to support a claim for the denial of access to the courts. See Wardell

v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006).

B. Richardson denied Smalls equal protection

       Smalls also alleged that Richardson denied him equal protection because

Richardson housed him, and all of the transferred Maryland inmates, in administrative

segregation. “Equal protection is essentially a direction that all persons similarly situated

should be treated alike.” Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006) (internal

quotation marks omitted). Smalls appears to be alleging that Richardson treated him, and

other transferred Maryland inmates, differently than Richardson treated the federal

detainees also being held at the LDC. Because Smalls does not allege that this differing

treatment was based upon his membership in a constitutionally protected class or that it
                                              8
implicates a fundamental right, the LDC policy need only bear a rational relationship to a

legitimate government purpose. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.

1996) (per curiam). Therefore, in order to state an equal protection claim, Smalls had to

allege that “the difference in treatment was not ‘reasonably related to legitimate

penological interests.’” Fogle, 435 F.3d at 1261 (quoting Turner v. Safley, 482 U.S. 78,

89 (1987)). Smalls has failed to make such allegations, and there is no indication in the

record that he could make such allegations.

       Smalls alleged that the LDC kept Maryland inmates in segregation as a result of an

assault on LDC guards, carried out by other Maryland inmates and occurring before

Smalls was transferred to the LDC. Smalls further alleged that the inmates chosen to be

transferred to federal custody were disruptive, or suspected of being disruptive, in the

Maryland prison system. There was, then, a legitimate penological reason for treating the

Maryland transferees, such as Smalls, differently from federal detainees housed at the

LDC. See Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342-43 (10th Cir.

2007) (noting safety is a legitimate penological interest that may justify segregation).

And the policy of keeping Maryland transferees in segregation was rationally related to

the legitimate penological interest of maintaining safety in the LDC. The district court,

therefore, did not err in dismissing this claim under Rule 12(b)(6).

                                     IV. Conclusion

       For the foregoing reasons, we AFFIRM the district court’s decision dismissing

Smalls’s claims against Defendants Stouffers and Richardson. We remind Smalls that he
                                              9
remains obligated to make partial payments until the filing fees he incurred in this case

are paid in full.

       The mandate shall issue forthwith.



                                            ENTERED FOR THE COURT



                                            David M. Ebel
                                            Circuit Judge




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