                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           FEB 4 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 NOAH R. ROBINSON,

               Plaintiff-Appellant,                     No. 03-1262
          v.                                           (D. Colorado)
 JOSEPH E. GUNJA, Warden; OSCAR                     (D.C. No. 02-Z-2355)
 ACOSTA, Associate Warden;
 CHRISTOPHER B. SYNSVOLL,
 Attorney; D. LOCKE, Legal
 Department; ALLEN CHILDS, S.I.A.;
 JACK WILNER, S.I.S. Legal Tech;
 MS. POTTER, S.I.S. Legal Tech;
 STANLEY ROWLETT, Unit Manager;
 KENNETH LINCOLN, Counselor;
 BERNIE JANUSZ, Case Manager;
 SUSAN OPPENHEIMER, ITS
 Account Tech, JOHN DOE,
 Correctional Officer and MARY DOE,
 Correctional Officer,

               Defendants-Appellees.




                           ORDER AND JUDGMENT *



Before EBEL, HENRY, and HARTZ, Circuit Judges.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See F ED . R.

A PP . P. 34(f); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted

without oral argument.

      Noah R. Robinson, a federal prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his complaint filed pursuant to 42 U.S.C. § 1983.

Mr. Robinson claims various violations of his First, Fourth, Fifth, Sixth, and

Fourteenth Amendment rights as a result of the warden’s decision to terminate

Mr. Robinson’s telephonic access to legal personnel. The district court sua

sponte dismissed his claims as legally frivolous under 28 U.S.C. § 1915A(b)(1).

For the reasons set forth below, we affirm the district court’s dismissal.



                                   I. DISCUSSION

      A. Standard of Review

      In Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000), we noted “this

court has not yet determined whether a dismissal pursuant to § 1915A on the

ground that the complaint is legally frivolous is reviewed de novo or for abuse of

discretion.” Applying the same methodology as we did in Plunk, we note that we

“need not resolve that question at this juncture, however, because our review of

the entire record in this case . . . reveals no hint of reversible error under either

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standard.” Id. Thus, for the reasons stated below, we affirm the district court’s

dismissal of all of Mr. Robinson’s claims.

      B. Merits

      In his complaint, Mr. Robinson asserted the following claims arising from

his incarceration at USP Florence:

      (1) prison authorities violated his First Amendment rights through

termination of access to courts and to legal personnel;

      (2) prison authorities violated his Fourth Amendment rights through the

unwanted monitoring of his privileged telephone conversations;

      (3) prison authorities violated his Fifth Amendment right against self-

incrimination by providing Mr. Robinson with purportedly unmonitored telephone

access for legal purposes from February 2002 – November 2002, and then

monitoring these conversations and using these conversations as the basis for

terminating his legal telephone access;

      (4) prison authorities violated his Sixth Amendment right to privileged

communications with counsel, and

      (5) prison authorities violated his Fourteenth Amendment right to due

process by (a) depriving him of his vested liberty interests in personal privacy and

his right to confidentiality of the contents of his legal conversations, and (b)




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violating his right to equal protection under the law by terminating his telephone

access for legal purposes. On appeal, Mr. Robinson raises the same claims.

      (1) First Amendment violations

      Mr. Robinson claims violations of his First Amendment constitutional right

of access to the courts, to counsel, and to legal assistants, and to confer with

counsel in a confidential manner. The district court dismissed his claim, noting

that, although inmates retain First Amendment protections, “‘incarceration brings

about the necessary withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our penal system.’” Rec.

doc. 24, at 4 (Dist. Ct. Order, filed May 23, 2003) (quoting O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987)). The district court also liberally construed

Mr. Robinson’s claim to allege a Sixth Amendment violation of his right of access

to the courts, and dismissed this claim as unsupportable in light of his manifold

court filings in several courts nationwide.

      We agree with the district court’s rulings. To the extent Mr. Robinson

alleges he was denied access to the courts, he can demonstrate no prejudice. The

Supreme Court in Lewis v. Casey, 518 U.S. 343, 349 (1996), made very clear that

an inmate alleging that a prison has violated his right of access to the courts must

show actual prejudice. Mr. Robinson has offered no facts to show that his ability

to pursue nonfrivolous litigation was hindered by the lack of case law or legal



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assistance. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (noting

that although pro se pleadings are to be construed liberally, “conclusory

allegations without supporting factual averments are insufficient to state a claim

on which relief can be based”).

      (2) Fourth Amendment right to confidentially confer with counsel and
      standby counsel

       Mr. Robinson next contends he was denied his Fourth Amendment right to

be free from unwanted monitoring of confidential communications with

consulting and standby counsel. The district court reasoned that attorney-client

privilege cannot attach to Mr. Robinson’s calls because he “is using the attorneys

he references to as legal resources.” Rec. doc. 24, at 8. Because he is proceeding

pro se, and thus not represented by counsel, his calls were properly monitored by

prison authorities.

      Mr. Robinson has supplied letters from several attorneys who stated that

they, along with various paralegals, were providing Mr. Robinson with out-of-

prison legal assistance on various matters. He contends that the only persons on

his “approved telephone list” were legal personnel, and thus a privilege should

attach to these calls.

      As the government points out, however, Mr. Robinson’s claims involve

only the Inmate Telephone System (ITS), in which there is no confidentiality

promised by prison authorities. The Admission and Orientation Handbook for

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USP Florence specifies that all calls made on the ITS may be recorded and

monitored. Aple’s Br. at 5. “To make an unmonitored legal telephone call, [an

inmate] must submit an “Inmate Request to a Staff Member” to the counselor for

approval.” Id. ex. 4 (Excerpt from the Admission and Orientation Handbook,

USP Florence, at 12). Mr. Robinson does not allege that he submitted an “Inmate

Request to a Staff Member” to make an unmonitored telephone call. Clearly, Mr.

Robinson had no reasonable expectation of privacy in the ITS calls. See Aple’s

Br. ex. 2 at 6 (Tel. Regs. for Inmates FLP5264.07A) (“Inmates may elect to use

the ITS to place calls to an attorney. If so, those calls will be subject to recording

and monitoring by staff.”).

      (3) and (4) Fifth Amendment right against self-incrimination; Sixth
      Amendment right to privileged communications with counsel

      Mr. Robinson raises related claims that his Fifth and Sixth Amendment

rights were violated through the monitoring of his ITS conversations with legal

counsel. Because we have determined these calls at issue were placed on the ITS

system, and thus were calls that may be recorded or monitored, the district court

properly dismissed these claims. Furthermore, we hold that Mr. Robinson cannot

establish a claim for the violation of his right against self-incrimination because

he does not allege that any of the information obtained from the monitored calls

was used against him in any criminal proceeding. See Chavez v. Martinez, 123 S.

Ct. 1994, 2003 (2003) (“[A] violation of the constitutional right against

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self-incrimination occurs only if one has been compelled to be a witness against

himself in a criminal case.”) (emphasis deleted).

      (5) Fourteenth Amendment rights to due process

      Finally, Mr. Robinson claims that prison authorities violated his Fourteenth

Amendment rights to due process by (a) depriving him of his vested liberty

interest in personal privacy and his right to confidentiality in the content of his

legal conversations, and (b) violating his right to equal protection under the law

by terminating his telephone access for legal purposes. He also points to several

other similarly situated inmates who allegedly violated various telephone

procedure provisions, but who retained their phone privileges for legal calls.

      As the government points out, “prison officials can, and often do, use

information obtained from calls placed on the ITS system to discipline inmates.”

Aple’s Br. at 13 (citing 28 C.F.R. § 540.100 (“[I]nmate telephone use is subject to

those limitations which the Warden determines are necessary to ensure the

security or good order, including discipline, of the institution or to protect the

public. Restrictions on inmate telephone use may also be imposed as a

disciplinary sanction (see 28 CFR part 541).”)).

      Mr. Robinson cannot demonstrate that the disciplinary action taken as

alleged herein constitutes the sort of “atypical, significant deprivation in which




                                          -7-
the [government] might conceivably create a liberty interest.” Sandin v. Connor,

515 U.S. 472, 486 (1995). Furthermore,

      an inmate “has no right to unlimited telephone use.” Benzel v.
      Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989) . . . Instead, a prisoner's
      right to telephone access is “subject to rational limitations in the face
      of legitimate security interests of the penal institution.” Strandberg v.
      City of Helena, 791 F.2d 744, 747 (9th Cir. 1986). “The exact nature of
      telephone service to be provided to inmates is generally to be
      determined by prison administrators, subject to court scrutiny for
      unreasonable restrictions.” Fillmore v. Ordonez, 829 F. Supp. 1544,
      1563-64 (D. Kan. 1993), aff'd, 17 F.3d 1436 (10th Cir. 1994).

Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994). We hold that Mr.

Robinson cannot demonstrate that the restriction on his telephone use was an

inappropriate disciplinary sanction.

                                II. CONCLUSION

      Accordingly, we affirm the district court’s dismissal of Mr. Robinson’s

complaint pursuant to 28 U.S.C. § 1915A(b).



                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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