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

                                   TENTH CIRCUIT                       April 9, 2014

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
MARK MCADAMS,

              Plaintiff - Appellant,

v.                                                       No. 13-8074
                                                (D.C. No. 2:12-CV-00263-NDF)
WYOMING DEPARTMENT OF                                     (D. Wyo.)
CORRECTIONS, in its official capacity;
WYOMING DEPARTMENT OF
CORRECTIONS DIRECTOR, in his
official capacity a/k/a Robert O. Lampert;
ROBERT O. LAMPERT, in his individual
capacity a/k/a Wyoming Department of
Corrections Director; WYOMING
DEPARTMENT OF CORRECTIONS
STATE PENITENTIARY WARDEN, in
his official capacity a/k/a Eddie Wilson;
EDDIE WILSON, in his individual
capacity a/k/a Wyoming Department of
Corrections State Penitentiary Warden;
WYOMING DEPARTMENT OF
CORRECTIONS STATE
PENITENTIARY DEPUTY WARDEN, in
his official capacity a/k/a Todd Martin;
TODD MARTIN, in his individual capacity
a/k/a Wyoming Department of Corrections
State Penitentiary Deputy Warden;
WYOMING DEPARTMENT OF
CORRECTIONS STATE
PENITENTIARY HOUSING MANAGER,
in her official capacity a/k/a Janell Thayer;
JANELL THAYER, in her individual
capacity a/k/a Wyoming Department of
Corrections State Penitentiary Housing
Manager,

              Defendants – Appellees.
                              ORDER AND JUDGMENT*


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


       Mark McAdams, a prisoner in the Wyoming Department of Corrections (DOC),

was placed on long-term administrative segregation (LTAS) in January 2011. He was

initially placed on LTAS pending an assault investigation but has remained on LTAS, he

claims, due to (1) false statements from a confidential informant (CI) indicating his safety

is at risk in general population, and (2) past conduct for which he has already been

punished or exonerated. He filed a pro se1 civil rights complaint against the DOC and

several of its officials alleging violations of procedural due process and double jeopardy.

       The district judge directed the DOC to prepare and file a Martinez report.2 It did

so and accompanied the report with a motion to dismiss under Fed. R. Civ. P. 12(b)(6).


       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       1
        We liberally construe McAdams’ pro se filings. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       2
         The report takes its name from the opinion in which we approved a district
court’s order to prison officials to investigate and report on the allegations in an inmate’s
complaint: Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978).


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The judge granted the motion. She concluded McAdams has no protected liberty interest

in avoiding confinement in LTAS and thus the due process clause is not implicated. She

also rejected the double jeopardy claim because prison disciplinary sanctions—such as

administrative segregation—do not implicate double jeopardy protections.

       We review the dismissal of a complaint de novo. Doe v. City of Albuquerque, 667

F.3d 1111, 1118 (10th Cir. 2012). To survive a motion to dismiss under Rule 12(b)(6), a

complaint must contain “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

       In what turns out to be only a prelude to the ultimate resolution of this appeal,

McAdams tells us the district judge improperly accepted the DOC’s version of the facts

stated in the Martinez report. Had the judge accepted his factual allegations, he says, his

claims would have survived dismissal.

       McAdams has a point, albeit an ultimately insignificant one. He specifically

contested a number of facts in the Martinez report. Nevertheless, the judge accepted as

true the facts as outlined in the report. But Martinez reports may not be used at the

motion to dismiss stage to resolve factual disputes. See Swoboda v. Dubach, 992 F.2d

286, 290 (10th Cir. 1993) (“In determining whether a plaintiff has stated a claim, the

district court may not look to the Martinez report, or any other pleading outside the

complaint itself, to refute facts specifically pled by a plaintiff, or to resolve factual

disputes.”); Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992) (Martinez

“process is designed to aid the court in fleshing out possible legal bases of relief from

unartfully drawn pro se prisoner complaints, not to resolve material factual issues.”); Hall

v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (stating a district court may sometimes

consider a Martinez report in deciding a motion to dismiss a complaint under Rule


                                              -3-
12(b)(6) but can do so only “[w]hen the plaintiff challenges a prison’s policies or

established procedures and the Martinez report’s description of the policies or procedures

remains undisputed after plaintiff has an opportunity to respond”; otherwise the motion to

dismiss must be converted to a motion for summary judgment). The district judge should

have accepted “as true all well-pleaded factual allegations in [the] complaint” and viewed

them in the light most favorable to McAdams. Schrock v. Wyeth, Inc., 727 F.3d 1273,

1280 (10th Cir. 2013)(quotation marks omitted).

       McAdams has won a pyrrhic victory. He ultimately loses because his version of

the facts, accepted as true, fails to state a claim.

       A. Due Process Claim

       According to McAdams, the DOC placed him in LTAS without due process of law

in that he was not provided reasons for his placement until fifteen months after his

placement and has never been given a hearing to dispute those reasons. But before he

can cry foul as to inadequate process, he must identify a liberty interest in avoiding

transfer to LTAS. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“The Fourteenth

Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or

property; and those who seek to invoke its procedural protection must establish that one

of these interests is at stake.”); Rezaq v. Nally, 677 F.3d 1001, 1016 (10th Cir. 2012)

(“Because no liberty interest is implicated, we do no reach the question of whether the

inmates received adequate process to justify their transfers to ADX.”).

       “[T]he Constitution itself does not give rise to a liberty interest in avoiding

transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at 221. State

policies or regulations, however, may create a liberty interest in avoiding particular

conditions of confinement when they “‘impose[] atypical and significant hardship on the


                                              -4-
inmate in relation to the ordinary incidents of prison life.’” Id. at 221-23 (quoting Sandin

v. Conner, 515 U.S. 472, 484 (1995)).

       We consider several nondispositive factors in determining whether a certain

confinement imposes “atypical and significant hardship” (and thus a liberty interest in

avoiding such confinement). Estate of DiMarco v. Wyo. Dep’t of Corrs., Div. of Prisons,

473 F.3d 1334, 1342 (10th Cir. 2007); see also Rezaq, 677 F.3d at 1012 n.5. The factors

include “whether (1) the segregation relates to and furthers a legitimate penological

interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3)

the placement increases the duration of confinement . . .; and (4) the placement is

indeterminate.” Estate of DiMarco, 473 F.3d at 1342. “[A]ny assessment [of these

factors] must be mindful of the primary management role of prison officials who should

be free from second-guessing or micro-management from the federal courts.” Id.

       In the Martinez report, the DOC cited McAdams’ safety and disciplinary record as

reasons for placing him in LTAS and keeping him there since January 2011. McAdams

disputes several key facts in the Martinez report, namely, information received from a CI

indicating his safety is at risk in general population and the charge of his involvement in

gang activities and threatening to harm other inmates. However, while he alleges the

CI’s information is false,3 he does not dispute that such information was provided to the

DOC. The DOC had reason to question his safety in the general population. Moreover,

while he may dispute the accuracy of his reported threats to other inmates and his

claimed participation in gang activity, the undisputed facts show a history of serious

       3
        McAdams’ challenges to the credibility of the CI essentially put “the cart before
the horse” because they concern the process he was due. Again, he is not entitled to any
process under the Constitution absent a liberty interest.


                                            -5-
infractions.4 The DOC has a legitimate penological interest in confining McAdams in

LTAS.

        The conditions of LSAT are not pleasant. McAdams is confined to his cell for

twenty-three hours a day; he is limited to one hour of recreation five days a week and

three showers a week; the property he is allowed to keep in his cell is restricted; his visits

are non-contact; and the lights are on twenty-four hours a day. But these conditions are

not extreme.5 See Rezaq, 677 F.3d at 1014-15 (concluding conditions were not extreme

where inmates had control over their cell lights, the opportunity for outdoor recreation,

regular contact with staff, the ability to occasionally communicate with other inmates and

their cells contained a television airing religious and educational programming even

though cells were small and stark, inmates spent twenty-three hours a day in their cells,

their outdoor recreation was limited to a small fenced-in area and they were only allowed

five non-contact social visits and two fifteen-minute phone calls per month); Stallings v.




        4
         McAdams selectively disputes the accuracy of his disciplinary history: (1) the
reported stabbing of two inmates is inaccurate (because the second stabbing charge was
dismissed by a state judge), and (2) he was not involved in inciting a prison riot (because
his conviction was only for criminal mischief). These disputes are specious. That a state
court judge dismissed a charge based on the State’s motion, see infra Section B, does not
equate to innocence or establish insufficient proof of his guilt for prison disciplinary
purposes. Furthermore, inciting a riot can support a criminal mischief conviction.
        5
        Relying on the Martinez report, the district judge concluded the conditions of
McAdams’ confinement in LTAS are not extreme because they mirror those he would
experience in general population due to “the heightened custody level his record
warrants.” (R. Vol. 1 at 294.) But the author of the Martinez report admitted McAdams’
custody classification would be medium in general population (due to the time which has
elapsed since his last serious disciplinary violation) and would only be bumped up to
maximum if prison staff exercised their authority to override the custody determination.


                                             -6-
Werholtz, 492 F. App’x 841, 845 (10th Cir. 2012) (unpublished)6 (deciding conditions

not extreme where inmate was confined in seventy square foot cell twenty-three hours a

day, had limited time outside his cell each week and social visits were conducted via

videoconferencing).

       LTAS placement does not increase the duration of McAdams’ confinement.

Placement in administrative segregation may lengthen an inmate’s incarceration if the

placement “disqualifies an otherwise eligible inmate for parole consideration.”

Wilkinson, 545 U.S. at 224; see also Rezaq, 677 F.3d at 1015-16. McAdams asserts he

has “limited programming/rehabilitative opportunities [in LTAS] making it impossible to

conform to his case plan which may negatively affect any parole board[’]s decision.” (R.

Vol. 1 at 155 (emphasis added).) Even if LTAS placement may influence a parole

board’s decision it is a far cry from rendering one ineligible for parole.7

       Finally, the Supreme Court in Wilkinson and our own cases suggest two

significant indicators of an indeterminate placement: the length of the placement and the

lack of meaningful periodic review. See Wilkinson, 545 U.S. at 224; Rezaq, 677 F.3d at

1016; Estate of DeMarco, 473 F.3d at 1343-44. McAdams has now been in LTAS for

over three years, but that pales in comparison to the duration of confinement in Rezaq,

677 F.3d at 1005-08 (over ten years for one plaintiff; over five years for three plaintiffs).

Moreover, his status is regularly reviewed. According to the Martinez report, the DOC’s

policy is to review LTAS status every ninety days. McAdams does not dispute the fact of

       6
      Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Stallings because of its persuasive and reasoned analysis.
       7
        While not necessarily a factor in whether LTAS placement increases the duration
of confinement, McAdams has not alleged LTAS results in any loss of good time credit.



                                             -7-
regular review and admits he has been present at two of the reviews. Thus, his

confinement in LTAS is not indefinite. See Rezaq, 677 F.3d at 1016 (even though

inmates had been housed in ADX for many years, confinement was not indefinite where

they were given twice a year reviews); Estate of DiMarco, 473 F.3d at 1343-44 (inmate’s

confinement in administrative segregation for fourteen months was not indefinite where

her status was reviewed every ninety days and she was allowed to present her views);

Stallings, 492 F. App’x at 845-46 (inmate’s placement in administrative segregation for

over three years was not indefinite where he received monthly reviews in which he was

allowed to participate).8

       Taken together, the factors do not indicate McAdams has a protected liberty

interest in avoiding LTAS confinement. His due process claim was properly dismissed.

       B. Double Jeopardy Claim

       We can easily dispose of McAdams’ double jeopardy claim. His only complaint

on appeal concerns the DOC’s use of a stabbing/assault charge to justify, in part, his

LTAS confinement even though a Nevada state court judge dismissed the charge. The

record shows criminal charges were dismissed against McAdams by a Nevada state court

judge upon motion by the State. It is unclear what those charges entailed but even

       8
         McAdams claims the reviews are pro forma. Admittedly, the review team does
not materially revise the reasons for keeping McAdams on LTAS at each review. But
“[c]ircumstances justifying an inmate’s continuation in administrative segregation are
often slow to change. This is especially so when the placement is based on documented
threats to the inmate’s life and the inmate’s history of retaliatory violence.” See Stallings,
492 F. App’x at 845 n.3. He also claims the reviews are a “sham” because the results are
predetermined by two defendants (the deputy warden and housing manager) who have
directed their staff not to recommend returning him to general population. (R. Vol. 1 at
158.) But McAdams has not alleged what role, if any, these staff members and their
recommendations have in the review process.



                                            -8-
assuming they included conduct used by the DOC to justify McAdams’ confinement in

LTAS, no double jeopardy violation occurred. Because he was not punished by the State

for the conduct, nothing in the double jeopardy clause prevents the DOC from

“punishing” McAdams for the conduct. See United States v. Rentz, 735 F.3d 1245, 1252

(10th Cir. 2013) (stating the double jeopardy clause “protects criminal defendants against

multiple punishments for the same offense imposed in a single proceeding”) (emphasis

added) (quotation marks omitted). In any event, “[b]ecause the Double Jeopardy clause

only applies to proceedings that are essentially criminal in nature, it is well established

that prison disciplinary sanctions—such as administrative segregation—do not implicate

double jeopardy protections.” Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006)

(quotation marks omitted).

       AFFIRMED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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