                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3576
                        ___________________________

                                   Brent Ballinger

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

          Cedar County, Missouri; David Starbuck; John and Jane Does

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                    Appeal from United States District Court
                for the Western District of Missouri - Springfield
                                 ____________

                          Submitted: September 21, 2015
                             Filed: January 14, 2016
                                 ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      Brent Ballinger was serving an eight-year sentence in a Missouri Department
of Corrections (DOC) prison when a Missouri state court judge granted Ballinger’s
motion to vacate and set aside his conviction and sentence. The state court judge
ordered that Ballinger be remanded to the custody of the Cedar County Sheriff’s
Department. While awaiting transfer, Ballinger was placed in administrative
segregation, where, he contends, he spent approximately one year. Ballinger sued
Cedar County, the county sheriff, and several unnamed DOC employees, alleging a
deprivation of his constitutional rights. The district court granted the sheriff’s and
the county’s motion and dismissed Ballinger’s lawsuit for failure to state a claim.1
Having jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm in part and reverse
in part.

I.     BACKGROUND2
       On January 23, 2009, a jury convicted Ballinger of three felonies in Missouri
state court. See State v. Ballinger, 298 S.W.3d 572, 573 (Mo. Ct. App. 2009). He
was sentenced to eight years. On September 15, 2010, Ballinger filed in the Circuit
Court of Cedar County, Missouri, a motion to vacate, set aside, or correct his
conviction and sentence under Missouri Supreme Court Rule 29.15, alleging he
received ineffective assistance of counsel at trial. On December 8, 2010, a state court
judge granted Ballinger’s motion, ordering Ballinger’s judgment and sentence
“vacated and set aside.” The state court judge ordered that Ballinger “be remanded
to the custody of the Cedar County Sheriff’s Department for further proceedings in
[his] underlying case.” The state appealed. On November 15, 2011, the Missouri


      1
       Cedar County and Sheriff David Starbuck’s motion to dismiss did not include
the John and Jane Does, yet the district court included the John and Jane Does with
Cedar County and Sheriff Starbuck when granting their motion and dismissing all of
Ballinger’s claims. Ballinger never served the John and Jane Does and has not
pursued the Doe claims in the district court or on appeal. We, therefore, consider any
claims against the John and Jane Does abandoned. However, the John and Jane Does
should not have been included in the district court’s order dismissing Ballinger’s
claims because the Does were never before the district court. Accordingly, we
reverse and remand to dismiss those claims without prejudice. See Fed. R. Civ. P.
4(m).
      2
       “‘[W]e recite the facts as alleged in the complaint, viewing them in the light
most favorable to the plaintiff[.]’” Henley v. Brown, 686 F.3d 634, 636 n.1 (8th Cir.
2012) (alteration in original) (quoting Davenport v. Farmers Ins. Grp., 378 F.3d 839,
841 (8th Cir. 2004)).

                                         -2-
Court of Appeals affirmed the order, and later the state’s motion for rehearing and
transfer to the Missouri Supreme Court was denied.

       Shortly after the state court judge first set aside Ballinger’s conviction, the
DOC, “per [the] court ruling overturning his sentence,” assigned Ballinger to
administrative segregation, which Ballinger refers to as “solitary confinement” and
“the hole.” Ballinger requested a classification hearing to find out how long he would
be kept in solitary confinement. At a hearing on January 27, 2011, a DOC
classification committee recommended Ballinger remain in administrative segregation
until March 24, 2011, “[p]ending . . . transfer by County.” Ballinger alleges in his
complaint he was kept in solitary confinement for at least one year.3

       Ballinger filed this claim pursuant to 42 U.S.C. §§ 1983 and 1988 against
Cedar County Sheriff David Starbuck and DOC employees, who have been
designated as John and Jane Does (collectively, defendants),4 alleging constitutional
violations.5 Asserting he became a pretrial detainee when his conviction was
overturned, Ballinger alleges that the defendants violated his Fourteenth Amendment
due process rights by leaving him in administrative segregation. Ballinger maintains


      3
       Ballinger claims the DOC classification committee held additional hearings
but nonetheless decided Ballinger should remain in solitary confinement. During oral
argument, Ballinger’s counsel explained it was “a little unclear as to exactly how
long” Ballinger spent in solitary confinement, but it was his allegation he was there
for approximately one year.
      4
        During oral argument Ballinger’s counsel explained he requested the names
of the employees on the DOC classification committee, but the DOC did not provide
them.
      5
       Ballinger originally brought claims under the Fourth, Eighth, and Fourteenth
Amendments to the United States Constitution but does not argue his Fourth and
Eighth Amendment claims, so we consider them waived. See Chavero-Linares v.
Smith, 782 F.3d 1038, 1040 (8th Cir. 2015).

                                         -3-
Sheriff Starbuck, who knew or should have known Ballinger would remain in solitary
confinement unless transferred, “purposely and maliciously refused to allow” Cedar
County employees to pick him up and take him to the Cedar County jail. Ballinger
asserts Cedar County, through its policy maker Sheriff Starbuck, maintained policies
that were deliberately indifferent to his Fourteenth Amendment rights.

      Sheriff Starbuck and Cedar County moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be
granted. Sheriff Starbuck and Cedar County argued Ballinger was still a prisoner and
did not suffer a significant or atypical hardship, as required when an inmate makes
a due process challenge. The district court granted the motion to dismiss. Ballinger
appeals.

II.   DISCUSSION
      A.    Standard of Review
      “‘Whether a complaint states a cause of action is a question of law which we
review on appeal de novo.’” Packard v. Darveau, 759 F.3d 897, 900 (8th Cir. 2014)
(quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 936 (8th Cir.
2012)). “To survive a motion to dismiss, the factual allegations in a complaint,
assumed true, must suffice ‘to state a claim to relief that is plausible on its face.’”
Northstar Indus., Inc. v. Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       B.      Ballinger’s Legal Status: Prisoner or Pretrial Detainee
       Prisoners’ and pretrial detainees’ constitutional claims are analyzed under
different standards. See Morris v. Zefferi, 601 F.3d 805, 809 (8th Cir. 2010).
Generally, while a pretrial detainee is presumed innocent and may not be punished,
see Bell v. Wolfish, 441 U.S. 520, 535 (1979); Smith v. Copeland, 87 F.3d 265, 268
(8th Cir. 1996), a prisoner must demonstrate he has suffered “atypical and significant
hardship . . . in relation to the ordinary incidents of prison life” to establish a claim

                                          -4-
under the Fourteenth Amendment Due Process clause, Sandin v. Conner, 515 U.S.
472, 484 (1995). Because the applicable constitutional standard depends on whether
Ballinger was a prisoner or a pretrial detainee during the time relevant to his claims,
we first must determine his legal status.

       Ballinger argues he became a pretrial detainee when his conviction was
overturned and the defendants punished him by keeping him in solitary confinement.
The district court decided Ballinger was still a prisoner. The district court relied on
Missouri Supreme Court Rule 30.17, a rule of appellate criminal procedure that
establishes what happens to a defendant when the state appeals a postconviction
order. The rule states:

      If an appeal is taken by the state, such appeal shall not stay the operation
      of an order or judgment in favor of the defendant. . . . This Rule 30.17
      shall not apply to an appeal taken by the state from an order entered in
      a proceeding under . . . Rule 29.15, but in such case, if the defendant is
      in custody, he shall remain in custody during the pendency of the appeal.


Mo. Sup. Ct. R. 30.17 (emphasis added). The district court determined, because
Ballinger’s conviction was overturned pursuant to Rule 29.15 and the state appealed
while Ballinger was in custody, “under Rule 30.17, [Ballinger] was to remain in
custody while the state’s appeal was pending.”

       Ballinger argues Rule 30.17 is not dispositive because it is silent as to the legal
status of the defendant—“only requir[ing] that he remain in custody.” Analogizing
to a successful habeas petition, Ballinger asserts there is no reason he should be
“entitled to any less status than a person that has had [his] murder conviction
overturned as the result of a habeas proceeding.” Ballinger offers two Missouri
habeas cases in support of his position. In both Ferguson v. Dormire, 413 S.W.3d 40,
73 n.51 (Mo. Ct. App. 2013), and State ex rel. Koster v. Green, 388 S.W.3d 603, 605

                                           -5-
n.2 (Mo. Ct. App. 2012), the Missouri Court of Appeals ruled when a prisoner’s
conviction is vacated through habeas relief, the prisoner’s legal status returns to the
status of a pretrial detainee.

        Though these habeas cases do suggest a prisoner may in some circumstances
regain pretrial detainee status, neither of the convictions in Green or Ferguson were
vacated pursuant to Rule 29.15. See Ferguson, 413 S.W.3d at 73; Green, 388 S.W.3d
at 605. As the district court noted, this is a critical distinction because Rule 30.17
expressly does not apply when the state appeals an order entered under Rule 29.15.
Further, the state cannot appeal from a grant of a writ of habeas corpus, see Ferguson,
413 S.W.3d at 50 (noting that when a Missouri circuit court grants a petition for a
writ of habeas corpus, the state’s “only recourse is to seek review by filing a petition
for writ of certiorari”), so it appears Rule 30.17 would not apply to Green or Ferguson
at all.

       Unlike habeas, Rule 29.15(k) authorizes the state to appeal an order sustaining
or overruling a motion filed under the rule. Rule 30.17 states, “If an appeal is taken
by the state, such appeal shall not stay the operation of an order or judgment in favor
of the defendant. . . . This Rule 30.17 shall not apply to an appeal taken by the state
from an order entered in a proceeding under . . . Rule 29.15.” We read the rule’s
exception plainly to provide that an appeal by the state from an order under Rule
29.15 does stay the operation of the order. Here, the state court judge vacated
Ballinger’s judgment and sentence in an order entered in a proceeding under Rule
29.15, and the state appealed. Because the order was stayed by the appeal and
Ballinger’s conviction and sentence were not in fact vacated, he remained a prisoner
while the appeal was pending and did not regain the status of a pretrial detainee. See
Crane v. Logli, 992 F.2d 136, 139 (7th Cir. 1993) (“Bell does not require us to hold
that [the plaintiff] became a pretrial detainee, in a constitutional sense, once his
conviction was reversed.”); cf. Tourscher v. McCullough, 184 F.3d 236, 241-42 (3d
Cir. 1999) (concluding the intermediate reversal of a conviction did not take

                                          -6-
immediate effect and was not final under applicable state law until a petition for
further review was acted upon and the automatic stay on that reversal expired).

       C.    Ballinger’s Due Process Claims
       Ballinger alleges the defendants were deliberately indifferent to his due process
rights under the Fourteenth Amendment by keeping him in solitary confinement for
approximately one year. While in solitary confinement, Ballinger declares he
experienced different conditions than inmates in the general population, including
“[c]omplete isolation from the general population” and limited access to showers,
social interaction, a telephone, and exercise. As a result of extended solitary
confinement, Ballinger claims he “has been diagnosed with Post-Traumatic Stress
Disorder” and “has suffered emotional distress.”

       “[T]o prevail on a Fourteenth Amendment due process claim, [Ballinger] must
first demonstrate that he was deprived of life, liberty or property by government
action.” Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). Because we agree with
the district court that Ballinger remained a prisoner while he was in solitary
confinement, Ballinger “must identify conditions that impose ‘atypical or significant
hardship . . . in relation to the ordinary incidents of prison life’” to establish his
deprivation of liberty claims under the Fourteenth Amendment. Orr v. Larkins, 610
F.3d 1032, 1034 (8th Cir. 2010) (per curiam) (alteration in original) (quoting Sandin,
515 U.S. at 484).

       The district court found Ballinger failed to plead how “being placed in solitary
confinement was an atypical and significant hardship such that his due process rights
were violated,” and denied Ballinger’s request to amend his complaint, stating doing
so “would be futile.” Notably, the district court considered Ballinger’s time spent in
solitary confinement as “approximately three months.” While Ballinger pled he was
in solitary confinement continuously from sometime in late December 2010 “until at
least March 24, 2011,” he later stated he “remained in the hole for at least one year.”

                                          -7-
On appeal from a Rule 12(b)(6) dismissal, we assume Ballinger’s factual allegations
are true. See Northstar, 576 F.3d at 832. Therefore, we assume Ballinger spent
approximately one year in administrative segregation.

       But any error the district court made by failing to consider the greater length
of time Ballinger alleges he was kept in solitary confinement does not change the
result. “‘We have consistently held that a demotion to [administrative] segregation,
even without cause, is not itself an atypical and significant hardship.’” Orr, 610 F.3d
at 1034 (quoting Phillips, 320 F.3d at 847) (deciding a prisoner was not deprived of
a liberty interest during a nine-month stay in administrative segregation); accord
Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (repeating “administrative
and disciplinary segregation are not atypical and significant hardships under
Sandin”).

       There is “no liberty interest in avoiding administrative segregation unless the
conditions of . . . confinement ‘present the type of atypical, significant deprivation in
which a state might conceivably create a liberty interest.’” Wycoff v. Nichols,
94 F.3d 1187, 1190 (8th Cir. 1996) (quoting Sandin, 515 U.S. at 486). The
conditions Ballinger experienced in solitary confinement were not materially different
from other cases in which we have declined to find a liberty interest. Cf. Kennedy v.
Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (declaring a “transfer from
administrative segregation to punitive isolation was not ‘a dramatic departure from
the basic conditions’ of [a prisoner’s] confinement”) (quoting Sandin, 515 U.S. at
486)); Rahman X v. Morgan, 300 F.3d 970, 973-74 (8th Cir. 2002) (reasoning that
although a twenty-six-month assignment to a segregation cell “was substantial, [the
defendant] was not subject to the hardships that prisoners placed in that ward for
punitive reasons face” and “was given sufficient process by the prison officials”). As
a prisoner, Ballinger has not sufficiently alleged he was deprived of a liberty interest
under the Fourteenth Amendment Due Process clause.



                                          -8-
III.   CONCLUSION
       We affirm the district court’s dismissal of Ballinger’s claims against Cedar
County and Sheriff Starbuck. We reverse the district court in part and remand with
instructions to dismiss without prejudice Ballinger’s claims against the John and Jane
Does.
                        ______________________________




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