                                                                FILED 
                                                   United States Court of Appeals 
               UNITED STATES COURT OF APPEALS                Tenth Circuit 
                                                                    
                     FOR THE TENTH CIRCUIT                  June 7, 2017 
                 _________________________________                  
                                                       Elisabeth A. Shumaker 
KENNETH D. LEEK,                                            Clerk of Court 

             Plaintiff - Appellant,

v.                                                                                     No. 16-3225
                                                                          (D.C. No. 5:15-CV-03017-SAC-DJW)
C. MILLER, Unit Team Counselor, El                                                      (D. Kan.)
Dorado Correctional Facility, in his private
and official capacity; JAMES
HEIMGARTNER, Warden, El Dorado
Correctional Facility, in his private and
official capacity; KEVIN BOSCH,
Disciplinary Hearing Officer, Lansing
Correctional Facility, in his private
capacity; RANDOLPH W. JOHNSON,
Disciplinary Hearing Officer, El Dorado
Correctional Facility, in his private
capacity; JANE DOE, Employee,
Centralized Banking at Lansing
Correctional Facility, in her private and
official capacity; KENNETH MCGUIRE,
Disciplinary Hearing Officer, El Dorado
Correctional Facility, in his individual
capacity; TAMMY MARTIN, Unit Team
Manager, El Dorado Correctional Facility,
in her private and official capacity,

             Defendants - Appellees.
                             _________________________________

                                                               ORDER AND JUDGMENT*
                                                            
              *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
                                                                             (continued)

 
 


                                                   _________________________________

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
                  _________________________________

              Kenneth Leek, a Kansas prisoner proceeding pro se, appeals the judgment entered

in defendants’ favor on his claims brought under 42 U.S.C. § 1983 asserting defendants

retaliated against him in violation of his free-speech rights, violated his right of freedom

of association, and refused to release his prison accounts without affording him

procedural due process. He seeks leave to proceed on appeal in forma pauperis (IFP).

We affirm the judgment and deny the IFP motion as moot because the district court

granted Mr. Leek leave to proceed IFP on appeal, see Fed. R. App. P. 24(a)(3) (providing

that a party authorized to proceed IFP in the district court may proceed on appeal IFP).

       I.             Background

              We provide only a brief factual summary to frame the issues presented for review.

In several prison disciplinary proceedings, Mr. Leek was fined various amounts, ranging

from $5 to $40. He also was required to pay court fees from his prison accounts. Prison

policy provided that before a prisoner could spend his forced savings account, he was

required to exhaust his cash account balance. Invoking this policy, defendants refused to

release funds from Mr. Leek’s forced savings account. In October and December 2014,

Mr. Leek received checks from his wife and aunt, which were used to pay court fees. In

December 2014, Mr. Leek filed a request for release of his forced savings funds, but the

                                                                                                                                                                                                
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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request was not processed until February 2015. As a result of defendants’ treatment of

his accounts, Mr. Leek alleged he was deprived of funds he needed to purchase items in

the prison canteen for his personal comfort and hygiene, as well as items available only

during the Christmas season. He further asserted that because he could not purchase

writing materials and postage stamps, he could not communicate with his friends and

family.

       Two days after filing his complaint, Mr. Leek was required to move to a different

cell, and in the process he was strip searched and his belongings were thoroughly

searched. He was moved back to his original cell block (but to a cell directly in front of a

security camera) shortly after filing an administrative grievance. He alleged the cell

transfers were in retaliation for filing the lawsuit and grievance.

       On initial screening pursuant to 28 U.S.C. §§ 1915(e) & 1915A(a)&(b), the district

court dismissed Mr. Leek’s claims for retaliation and violation of his associational rights

for failure to state a claim. Defendants then filed a motion to dismiss the remaining

claims, which the district court converted to a motion for summary judgment. See Fed.

R. Civ. P. 12(d) (authorizing court to convert a motion to dismiss to one for summary

judgment). After affording the parties an opportunity to present pertinent material, see

id., the district court granted summary judgment to defendants, holding that they were

entitled to qualified immunity because Mr. Leek had failed to establish a protected

property interest in his prison accounts.




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    II.      Appellate Jurisdiction

          Defendants argue that the appeal must be dismissed because the notice of appeal

designates only the final judgment but does not list the interim order that is the subject of

two of Mr. Leek’s appellate claims. Mr. Leek responds that this court construed his letter

inquiring about necessary forms for filing an appeal as a notice of appeal. We need not

address whether the procedure employed by the court clerk was proper because this court

has jurisdiction to review all of the district court’s orders entered prior to the notice of

appeal.

          “[A] notice of appeal designating the final judgment necessarily confers

jurisdiction over earlier interlocutory orders that merge into the final judgment.”

AdvantEdge Bus. Grp., L.L.C. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233,

1236-37 (10th Cir. 2009). Thus, because Mr. Leek’s “notice of appeal . . . names the

final judgment[, it] is sufficient to support jurisdiction over earlier orders that merged in

the final judgment.” Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1111 (10th Cir.

2007). The defendants’ request to dismiss the appeal is denied.

    III.     Dismissal under §§ 1915(e) and 1915A(a)&(b)

          The district court screened Mr. Leek’s complaint under 28 U.S.C. § 1915A(a) and

dismissed Mr. Leek’s retaliation and associational claims for failure to state a claim under

§§ 1915(e)(2)(B)(ii) and 1915A(b). “We apply the same standard of review for

dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure

12(b)(6) motions to dismiss for failure to state a claim.” Kay v. Bemis, 500 F.3d 1214,

1217 (10th Cir. 2007). We consider whether the allegations in the complaint “plausibly

                                               4
 
 


support a legal claim for relief.” Id. at 1218 (internal quotation marks omitted). In doing

so, we require factual allegations in a complaint “to raise a right to relief above the

speculative level.” Id. (internal quotation marks omitted).

    We have liberally construed Mr. Leek’s pro se filings. See Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on the

responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Id. Moreover, “pro se parties [must] follow the same rules of

procedure that govern other litigants.” Id. (internal quotation marks omitted).

    A. Retaliation

       Mr. Leek alleged that he was required to move to a different cell twice, each time

after filing a lawsuit or a grievance against a prison official, and each time being required

to endure a strip search and a thorough search of his possessions. He further alleged that

he was placed in a cell in front of a security camera, and that during the first move,

defendant Miller said, “You and your paperwork can go bother someone else for a

while,” R. Vol. 1, at 142.

       “It is well-settled that prison officials may not retaliate against or harass an inmate

because of the inmate’s exercise of his right of access to the courts.” Gee v. Pacheco,

627 F.3d 1178, 1189 (10th Cir. 2010) (brackets and internal quotation marks omitted).

Nor may prison officials retaliate against prisoners for filing administrative grievances.

Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991).

       Government retaliation against a plaintiff for exercising his or her First
       Amendment rights may be shown by proving the following elements:
       (1) that the plaintiff was engaged in constitutionally protected activity;

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       (2) that the defendant’s actions caused the plaintiff 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 plaintiff’s exercise of constitutionally
       protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

       The district court held that Mr. Leek failed to allege facts to establish the

second element, but we conclude that Mr. Leek failed to state a claim as to the third

element. “We are free to affirm a district court decision on any grounds for which

there is a record sufficient to permit conclusions of law, even grounds not relied upon

by the district court.” Garcia v. Lemaster, 439 F.3d 1215, 1220 (10th Cir. 2006)

(internal quotation marks omitted). To satisfy the third element, Mr. Leek was

required to establish that “but for the retaliatory motive, the incidents to which he

refers . . . would not have taken place.” Peterson v. Shanks, 149 F.3d 1140, 1144

(10th Cir. 1998) (internal quotation marks omitted).

       “[I]t is not the role of the federal judiciary to scrutinize and interfere with the daily

operations of a state prison, and our retaliation jurisprudence does not change this role.”

Id. Furthermore, “an inmate is not inoculated from the normal conditions of confinement

experienced by convicted felons serving time in prison merely because he has engaged in

protected activity.” Id.

       Mr. Leek alleged that he was transferred within the same prison and did not allege

he suffered a change in security status or loss of privileges. Cf. Fogle v. Pierson, 435

F.3d 1252, 1263-64 (10th Cir. 2006) (stating transfer to another prison or to segregation

may state a retaliation claim where prison “official told [plaintiff] that if he did not stop

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complaining he would be transferred to long-term administrative segregation at another

facility”). He also made no allegation that the strip searches and the searches of his

personal property were unusual when a prisoner was transferred. Indeed, he did not

allege that he was strip searched in retaliation for his protected activity. And strip

searches of prisoners are not per se prohibited. See Farmer v. Perrill, 288 F.3d 1254,

1260 (10th Cir. 2002) (recognizing that prisoner strip searches must be “reasonably

related to a legitimate penological interest” (emphasis omitted)). Mr. Miller’s alleged

comment about Mr. Leek and his paperwork bothering someone else was an offhand

remark made after the decision to move him had been finalized and was not evidence of

retaliatory intent, particularly since Mr. Leek acknowledged that Mr. Miller was not the

decisionmaker.

       Consequently, the only allegation that supports his retaliation claim is the close

temporal proximity of the transfers to the protected activity. This does not constitute

sufficient circumstantial proof of a retaliatory motive to state a claim. Cf. Smith v.

Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (reversing summary judgment because

“circumstantial evidence of the suspicious timing of [plaintiff’s] discipline, coincidental

transfers of his witnesses and assistants, and an alleged pattern by defendants of blocking

his access to legal materials and assistance” was sufficient to create a jury question on

plaintiff’s retaliation claim). We affirm the district court’s dismissal of the retaliation

claim for failure to state a claim.




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       B. Association

              Mr. Leek also appeals the dismissal of his claim that he was denied his First

Amendment rights of familial association when he was unable to communicate with his

family and friends due to a lack of funds to purchase writing materials and postage

stamps.1 The district court held that Mr. Leek failed to state a claim because he did not

“allege facts indicating that he was prevented from communicating with friends and

family through means other than the mail for the period of time he could not buy

stamps.” R. Vol. 1, at 132. We affirm, but for reasons other than those stated by the

district court. See Garcia, 439 F.3d at 1220.

              “The right to familial association is grounded in the Fourteenth Amendment’s Due

Process Clause.” Cordova v. City of Albuquerque, 816 F.3d 645, 654 (10th Cir. 2016)

(brackets and internal quotation marks omitted). A plaintiff must make two showings to

succeed on a familial-association claim: “(1) that the defendants intended to deprive him

of his protected relationship, and (2) that balancing the individual’s interest in the

protected familial relationship against the state’s interests in its actions, defendants either

unduly burdened plaintiff’s protected relationship, or effected an unwarranted intrusion

into that relationship.” Id. (brackets and internal quotation marks omitted). In addition,

“[t]he conduct or statement must be directed at the familial relationship with knowledge


                                                            
              1
        Defendants argue that Mr. Leek’s First Amendment claim is barred on appeal
because he failed to raise it in the district court. The district court construed
Mr. Leek’s claim that he lacked money to purchase stamps as a First Amendment
claim, so we review the court’s ruling.

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that the statements or conduct will adversely affect that relationship.” Id. (internal

quotation marks omitted).

       Mr. Leek’s familial-association claim fails on the first element. He has alleged no

facts suggesting that any of the defendants “had the intent to interfere with a particular

protected relationship,” id. at 654-55 (internal quotation marks omitted).

       Mr. Leek asserts the district court erred in not inviting him to amend his complaint

a second time to address whether he had other means to communicate with his family and

friends. Given our holding above, any such amendment would have been futile. Cf.

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (stating a district court

need not permit an opportunity to amend “where it is obvious that the plaintiff cannot

prevail on the facts he has alleged and it would be futile to give him an opportunity to

amend”).

    IV.     Protected Property Interest in Prison Accounts

       Finally, Mr. Leek challenges the grant of summary judgment to the defendants on

his claim that he was denied access to his prison accounts without procedural due

process. To prevail on a procedural due process claim, a litigant must show (1) the state

deprived him of a protected interest in liberty or property and (2) he was not “afforded an

appropriate level of process[.]” Washington v. Unified Gov't of Wyandotte Cty., 847 F.3d

1192, 1201 (10th Cir. 2017) (internal quotation marks omitted). The district court held

that the defendants were entitled to qualified immunity because it was not clearly

established that a prisoner has a constitutionally protected property interest in his prison

accounts.

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       We review de novo the district court’s grant of summary judgment based on

qualified immunity. Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010). “A defendant

asserting qualified immunity should be granted summary judgment ‘if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)(2)).

       “Qualified immunity is an affirmative defense to a section 1983 action, providing

immunity from suit from the outset.” Washington, 847 F.3d at 1197 (internal quotation

marks omitted). “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). “To survive summary judgment after a

defendant has claimed qualified immunity, the plaintiff must establish (1) the defendant

violated a constitutional right, and (2) the right was clearly established.” Washington,

847 F.3d at 1197. “[W]e have discretion to decide which of the two prongs of the

qualified immunity analysis should be addressed first, [and to affirm a grant of qualified

immunity], we need only find that the plaintiff failed either requirement.” Clark, 625

F.3d at 690 (citation, brackets, and internal quotation marks omitted). A plaintiff may

show that the law is clearly established “by identifying an on-point Supreme Court or

published Tenth Circuit decision; alternatively, the clearly established weight of authority

from other courts must have found the law to be as the plaintiff maintains.” Cox v.

Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (internal quotation marks omitted).

                                             10
 
 


              We address whether the asserted right—a protected property interest in prison

accounts triggering procedural due process—was clearly established. In Clark, this

circuit held that the atypical-and-significant-hardship evaluation announced in Sandin v.

Conner, 515 U.S. 472 (1995), applied “to protected property interest inquiries.” 625 F.3d

at 691.2 In doing so, we overruled an earlier case holding that prisoners have a protected

property interest in the funds in their prison trust accounts. Id. (citing Gillihan v.

Shillinger, 872 F.2d 935 (10th Cir. 1989)). Consequently, the Gillihan holding “is no

longer good law and, hence, not ‘clearly established’ in this circuit.” Id.

              After Clark, in several unpublished decisions this circuit found it unnecessary to

resolve whether a prisoner has a protected property interest in his prison accounts.3 See

Burnett v. Leatherwood, 557 F. App’x 739, 742-43 (10th Cir. 2014) (stating even if the

prisoner had a protected property interest in a $5 fine, he had received constitutionally

adequate due process); Clark v. Oakley, 560 F. App’x 804, 808 n.1 (10th Cir. 2014)

(stating the issue was not before the court, but “[i]t may be that inmates do have a

property interest in their prison accounts”); Tenison v. Morgan, 508 F. App’x 824, 826


                                                            
              2
         Mr. Leek argues on appeal that the defendants’ treatment of his prison funds
caused him atypical and significant hardship, as contemplated by Sandin, thus
implicating a protected property interest. In opposing summary judgment, he did not
raise this argument to the district court, so we do not consider it. See McDonald v.
Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent extraordinary
circumstances, we will not consider arguments raised for the first time on appeal.”).
              3
                 Although generally not dispositive, unpublished decisions “need not be ignored
in determining whether the law was clearly established.” Estate of Booker v. Gomez,
745 F.3d 405, 428 n.29 (10th Cir. 2014).


                                                               11
 
 


n.2 (10th Cir. 2013) (finding it “[un]necessary to resolve the more difficult question of

whether [the prisoner] has a property interest in his Oklahoma prison trust fund

account”); Tijerina v. Patterson, 507 F. App’x 807, 810 (10th Cir. 2013) (recognizing

that the Tenth Circuit had not determined “whether an inmate has a property interest in

funds held in a prison account,” and finding it unnecessary to decide the question);

cf. Whitmore v. Hill, 456 F. App’x 726, 729 (10th Cir. 2012) (assuming that a fine

implicated prisoner’s protected property interests; holding prisoner received adequate

procedural due process). As these cases demonstrate, the law in this circuit is not clearly

established whether a prisoner has a protected property interest in his prison accounts.

         Mr. Leek relies on a case from the Third Circuit holding “the Department of

Corrections’ assessment of [the prisoner’s] institutional account constituted the

deprivation of a protected property interest for purposes of procedural due process.”

Burns v. Penn. Dep’t of Corr., 544 F.3d 279, 291 (3d Cir. 2008). “Normally, a single

recent case from one circuit is not sufficient to make the law clearly established in

another circuit.” Woodward v. City of Worland, 977 F.2d 1392, 1397 (10th Cir. 1992)

(internal quotation marks omitted). Mr. Leek has not cited any Supreme Court or

published Tenth Circuit case, or case law from any circuits other than the Third Circuit,

to support his constitutional claim. Therefore, we conclude that the district court

properly granted summary judgment on qualified-immunity grounds.

    V.      Conclusion

         Defendants’ request to dismiss the appeal is denied. Mr. Leek’s motion to proceed

IFP is denied as moot because the district court granted Mr. Leek leave to proceed IFP on

                                             12
 
 


appeal; he is reminded to continue making partial payments until the entire filing and

docketing fees are paid in full. The judgment is affirmed.


                                             Entered for the Court


                                             Bobby R. Baldock
                                             Circuit Judge




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