                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 June 11, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 ADAM DMYTRYSZYN,

               Plaintiff - Appellant,                  No. 12-1491
          v.                                           (D. Colorado)
 JOHN HICKENLOOPER, Governor;                (D.C. No. 1:12-CV-01690-LTB)
 ROGER WERHOLTZ, Interim
 Executive Director *; FAULK,
 Superintendent, and Captain John Doe;
 BRADYHOFF, Correctional Officer;
 ARISTEDES ZAVARES, Former
 Exec. Dir; MILLIARD, Former
 Superintendent,

               Defendants - Appellees.


                            ORDER AND JUDGMENT **


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.




      *
       Pursuant to Fed. R. App. 34(c)(2) Tom Clements is replaced with Roger
Werholtz as Executive Director of the Colorado Department of Corrections.
      **
        After examining the brief and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
      Plaintiff Adam Dmytryszyn, a Colorado state prisoner, appeals from an

order by the United States District Court for the District of Colorado dismissing

his civil-rights action for failure to file an amended complaint. He argues that the

district court erroneously concluded that he had failed to state a valid claim for

relief on any of his causes of action. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I.    BACKGROUND

      Dmytryszyn, who is serving a 12-year term of incarceration on a 2009

sentence, filed a complaint under 42 U.S.C. § 1983 against seven current and

former state officials, four of whom worked at the facility in which he is

incarcerated. He claimed that his federal civil rights were violated by (1)

Defendants’ policy of requiring him to perform work in the prison for meager

wages; (2) a physical search of his person by one of the defendant prison guards;

(3) deductions from his inmate account to pay restitution for a prior crime and to

pay filing fees for a lawsuit he filed in state court; and (4) Defendants’ policy of

charging exorbitant fees to photocopy legal documents.

      The magistrate judge directed him to file an amended complaint, explaining

that none of his allegations stated claims upon which relief could be granted.

Rather than filing an amended complaint, Dmytryszyn filed various motions and

objections to the magistrate judge’s order. After he missed an extended deadline

to file his amended complaint, the district court dismissed Dmytryszyn’s

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complaint without prejudice and he appealed. On appeal he argues that his

complaint did state valid claims for relief.

II.   DISCUSSION

      A.     Standard of Review

      We review de novo the district court’s decision under Fed. R. Civ. P.

12(b)(6) to dismiss a complaint for failure to state a claim upon which relief can

be granted. See Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010). Although

we presume that factual allegations in the complaint are true, the plaintiff has the

burden of pleading facts that plausibly establish a right to relief. See id. at

1183–84. We address each of Dmytryszyn’s claims in turn.

      B.     Prison Labor and Wages

      Dmytryszyn’s first claim was that requiring him to work as a prison janitor

for pay below the federal minimum wage violated the prohibition of slavery in the

Thirteenth Amendment and the due-process and equal-protection clauses of the

Fourteenth Amendment. But the Thirteenth Amendment’s prohibition on “slavery

[or] involuntary servitude” does not apply to “a punishment for crime whereof the

party shall have been duly convicted.” U.S. Const. amend. XIII. See Ruark v.

Solano, 928 F.2d 947, 949–50 (10th Cir. 1991) (“The thirteenth amendment’s

restriction on involuntary servitude does not apply to prisoners.”), overruled on

other grounds by Lewis v. Casey, 518 U.S. 343 (1996). As to his due-process

argument, the alleged deprivations of his liberty and property were not

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accomplished without due process of law; rather, he was convicted of a crime,

and the labor he complains of is one component of his sentence of incarceration.

Finally, his equal-protection claim failed to allege how he was being treated

differently than similarly situated inmates. See City of Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 432, 439 (1985). Although he alleged that “[s]ome

inmates receive minimum wage or better for industry types of jobs,” R. at 9, he

failed to allege that he was qualified for these better-paying jobs, or that he ever

applied for those jobs and was rejected. On appeal he also contends that he

“alleged that some inmates . . . were not forced to work.” Aplt. Br. at 8. But he

does not attempt to allege that he was indistinguishable from those inmates on

any relevant ground. Thus, he failed to show that the prison’s labor policy

violated his rights, and the district court properly dismissed this claim.

      C.     Unreasonable Search and Use of Force

      Dmytryszyn’s second claim was that one of the defendants, a guard at the

facility where he is incarcerated, violated his Fourth and Eighth Amendment

rights by conducting an unreasonable search of his person and wantonly inflicting

pain on him. He alleged that as he was leaving the prison kitchen, the guard

patted him down and discovered contraband food items “hanging above [his]

penis,” then “grabbed the plaintiff’s penis with his thumb and index finger, and

squeezed the plaintiff’s penis several times causing the plaintiff physical pain and

humiliation.” R at 11. He contends that since he had “already been pat searched

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and passed through a metal detector moments before,” id., he could not have been

a security risk, and therefore “the purpose of the search was to prevent petty theft

from the kitchen [and] the search was not rationally related to a legitimate

security need,” id. at 12–13 (emphasis added). He failed, however, to plausibly

allege that the search was not “related to legitimate penological interests,”

Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002) (emphasis added)

(internal quotation marks omitted), such as the prevention of theft from prison

supplies. Hence, the district court properly held that he had failed to plead a

Fourth Amendment claim.

      As to Dmytryszyn’s Eighth Amendment claim based on this incident, his

allegations do not plausibly show that the guard acted “maliciously or sadistically

to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). The allegations are

fully consistent with the guard’s acting in “a good-faith effort to maintain or

restore discipline.” Id. at 7; see Gee, 627 F.3d 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.”).

      D.     Deductions from Inmate Account

        Dmytryszyn’s third claim was that prison officials violated his Fourth

Amendment right to be free of unreasonable seizures and his Fourteenth

Amendment right to due process when they deducted from his inmate account

both payments on restitution for a 1990 burglary conviction and filing fees for a

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lawsuit he filed to challenge his conviction for a prison disciplinary infraction.

He asserted generally that the statutes authorizing deductions from inmate

accounts are unconstitutional, but he has provided no authority to support the

contention. There is nothing improper in the State’s collection of fees imposed as

a part of his sentence or as a condition to a lawsuit. Dmytryszyn argues that

because the State did not collect on the judgment during the nine years between

his release from prison on the burglary conviction and his reimprisonment on his

current sentence, the restitution obligation was “discharged,” R. at 17, but again,

he cites no authority for this proposition. And even if he is correct that at the

time of his 1990 conviction he was “never notified of the [restitution] amount or

given an opportunity to challenge it,” id. at 16, that does not establish that those

now being sued violated his constitutional rights. The district court properly

dismissed this claim.

      E.     Photocopying Charges

      Dmytryszyn’s final claim was that prison officials abridged his right of

access to the courts by charging exorbitant photocopying fees (25¢ per page) for

legal documents. To state a valid claim for denial of access to the courts,

Dmytryszyn had to allege “actual injury from interference with his access to the

courts—that is, that [he] 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. But he made no effort to show that he was

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prevented from pursuing a nonfrivolous claim. Although he alleged that he was

deterred from “pursuing certiorari review of his challenge to his prior conviction,

despite the fact that he knows the conviction is unconstitutional,” R. at 21, this

bare assertion of a constitutional violation is “too conclusory to present a

plausible claim that he was impeded in his effort to pursue a nonfrivolous legal

claim,” Gee, 627 F.3d at 1191. The district court properly dismissed this claim

for failing to state a violation of Dmytryszyn’s rights.

III.   CONCLUSION

       We AFFIRM the judgment of the district court and GRANT Dmytryszyn’s

motion to proceed in forma pauperis. He is reminded of his continuing obligation

to make partial payments until the filing fee has been paid in full.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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