                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 23, 2014
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 JAMES SUAREZ, JR.,

              Plaintiff - Appellant,

 v.                                                     No. 14-1251
                                                        (D. of Colo.)
 JOHN PALOMINO, in his individual              (D.C. No. 1:14-CV-01078-LTB)
 and official capacities as former
 investigator for Crowley County
 Correctional Facility,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      James Suarez, Jr., a Colorado state prisoner, appeals the district court’s

dismissal of his pro se civil rights action brought under 42 U.S.C. § 1983. 1 He


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Suarez is proceeding pro se, we construe his filings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
also moves to proceed in forma pauperis on appeal. Having jurisdiction under 28

U.S.C. § 1291, we affirm the district court’s dismissal, dismiss the appeal as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), deny the motion to proceed in

forma pauperis, and assess two strikes against Suarez pursuant to 28 U.S.C.

§ 1915(g).

                                 I. Background

      Suarez is a prisoner at the Crowley County Correctional Facility (“CCCF”)

in Olney, Colorado. According to Suarez, prison investigators questioned him

regarding contraband being brought into the facility. 2 Suarez denied any

involvement and stated that he would “be filing a complaint in the courts for

being falsely accused and for [the] line of abusive questioning.” Am. Compl. at

3. He subsequently requested a prisoner complaint form from the prison librarian.

A few weeks later, the defendant, a CCCF investigator, had Suarez placed in

segregation as part of the investigation where he remained for nine days.

      Proceeding pro se and in forma pauperis, Suarez filed a § 1983 action

against the defendant. The complaint asserted two claims: (1) a violation of the

Fourteenth Amendment Due Process Clause because Suarez was placed in

segregation without first receiving notice or a hearing; and (2) a violation of the

First Amendment because he was placed in segregation in retaliation for


      2
        The nature of the contraband is not entirely clear. Suarez alleged that
investigators accused him of bringing “disc[s]” into CCCF. Am. Compl. at 3.

                                         -2-
exercising his right of access to the courts. The magistrate judge found the

complaint deficient and ordered Suarez to file an amended complaint. The

amended complaint did not cure the deficiencies, however, and the district court

dismissed it as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 3 The

district court further certified that any appeal would not be taken in good faith

and denied Suarez in forma pauperis status on appeal. Suarez proceeded to file a

notice of appeal 4 and a renewed motion for leave to proceed in forma pauperis.

                                  II. Discussion

      Section 1915(e) instructs courts to dismiss the complaint or appeal of a

party proceeding in forma pauperis “at any time if the court determines that . . .



      3
          At one point, the district court’s order stated that the complaint was both
legally frivolous and failed to state a claim upon which relief may be granted.
Because the order’s final disposition stated that the complaint was dismissed as
legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), we focus only on the
district court’s finding of frivolousness.
      4
          The notice of appeal was docketed as filed more than thirty days after the
district court’s entry of judgment. This court issued a jurisdictional show cause
order requiring Suarez to provide proof in writing that his appeal was timely
filed. See United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir.
2004) (“The filing of a timely notice of appeal is an absolute prerequisite to our
jurisdiction.”). Because Suarez is incarcerated, we apply the prison mailbox rule,
which provides that “notice is timely filed if it is deposited in the institution’s
internal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1).
An inmate must use an institution’s legal mail system, if such a system exists, to
receive the benefit of the rule. See id. In response to the show cause order,
Suarez submitted a copy of the prison’s outgoing legal mail log. The log
establishes that Suarez deposited his notice of appeal before the last day for
filing. Therefore, the notice of appeal was timely filed and we have jurisdiction.

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the action or appeal is frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A

claim is frivolous “if it lacks an arguable basis either in law or in fact.” Fogle v.

Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). We generally review a district

court’s dismissal for frivolousness for an abuse of discretion. Id. However, if the

“determination turns on an issue of law, we review the determination de novo.”

Id. After reviewing the record and construing Suarez’s pleadings liberally, we

find that Suarez’s amended complaint is frivolous for substantially the same

reasons explained by the district court.

      The due process claim fails because Suarez cannot establish that his

segregation implicated a constitutionally protected liberty interest. “A protected

liberty interest only arises from a transfer to harsher conditions of confinement

when an inmate faces an ‘atypical and significant hardship . . . in relation to the

ordinary incidents of prison life.’” Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th

Cir. 2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)) (internal

quotation marks omitted). We consider four non-dispositive factors to determine

whether a prisoner’s segregation imposes such a hardship: “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 v. Wyo. Dep’t of Corrections, 473 F.3d 1334,

1342 (10th Cir. 2007).

                                           -4-
      Applying these factors to the facts alleged, there is no basis from which we

could find Suarez faced an atypical and significant hardship. Segregation pending

an investigation into alleged criminal activity by an inmate can serve a legitimate

penological interest. See Jordan v. Fed. Bureau of Prisons, 191 F. App’x 639,

653 & n.11 (10th Cir. 2006). Suarez argued that the defendant could have

conducted his investigation into the contraband while Suarez remained in general

population. 5 Our role in making this assessment, however, is not to second-guess

or micro-manage the judgments of prison officials. Rezaq, 677 F.3d at 1014.

Accordingly, we look only for a reasonable relationship between isolation and a

penological interest. Id.

      The remaining factors similarly cut against finding a liberty interest.

Suarez labeled his segregation as “the most harsh condition of confinement,” but

the only specific deprivation in the complaint was the fact that he had no access

to radio, television, or personal items. That hardly amounts to extreme

conditions. Finally, there is no indication that the segregation increased the




      5
         The complaint also alleged the investigation was completed at the time
Suarez was segregated. Even if that were the case, applying the remaining factors
makes clear that Suarez was not subject to an atypical and significant hardship.
Moreover, “we are mindful [in making this assessment] that nondisciplinary
administrative segregation ‘is the sort of confinement that inmates should
reasonably anticipate receiving at some point in their incarceration.’” Rezaq, 677
F.3d at 1012 (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983), overruled on
other grounds by Sandin v. Conner, 515 U.S. 472, 479–83 (1995)).

                                         -5-
duration of Suarez’s confinement or that the duration of his segregation was

indeterminate. He was returned to general population after nine days.

      Because there is no liberty interest, we need not reach Suarez’s claim that

he received inadequate process prior to his segregation. On appeal, Suarez

presents no argument that could conceivably refute the district court’s conclusion.

He asserts only that prison officials must provide due process as a matter of

course before segregating prisoners.

      We can just as easily dispose of Suarez’s First Amendment retaliation

claim. Inmates are “not inoculated from the normal conditions of confinement

experienced by convicted felons serving time in prison merely because [they]

engage[] in protected activity.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th

Cir. 1998). Therefore, to state a claim of retaliation, an inmate “must allege

specific facts showing retaliation because of the exercise of the prisoner’s

constitutional rights.” Id. (quoting Frazier v. Dubois, 922 F.2d 560, 562 n.1

(10th Cir. 1990)).

      The district court found, and we agree, that Suarez failed to allege specific

facts showing the defendant was motivated by the fact that Suarez requested a

prisoner complaint form from the prison librarian. The amended complaint

asserted the prison librarian “must have informed” the defendant that Suarez had

requested the complaint. Am. Compl. at 3. On appeal, Suarez does not address

why this allegation is not, in the district court’s words, “mere speculation.” See

                                         -6-
D. Ct. Op. at 7. He now argues the defendant was motivated by a personal

antipathy towards him. Even if we were to consider arguments raised for the first

time on appeal, we would still be left without any specific facts showing that the

defendant retaliated against Suarez because he exercised his constitutional rights.

      In sum, Suarez’s amended complaint and his appeal are frivolous under 28

U.S.C. § 1915(e)(2)(B)(i). We therefore dismiss the appeal and assess two strikes

against him. See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 175 F.3d

775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an action the

district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as

strikes.”). We would caution Mr. Suarez that he is one strike away from being

subject to the filing restrictions set forth in § 1915(g).

      Finally, we must address Suarez’s motion to proceed in forma pauperis on

appeal. The district court certified pursuant to 28 U.S.C. § 1915(a)(3) that any

appeal from its order would not be taken in good faith. Suarez can overcome the

district court’s certification only if he can show “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” Crownhart v. Muller, No. 14-1281, 2014 WL 4251610, at *2 (10th Cir.

Aug. 29, 2014) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.

1991)). For the reasons explained above, Suarez failed to do so. His motion is

therefore denied.




                                           -7-
                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the dismissal of Suarez’s amended

complaint. We DISMISS Suarez’s appeal as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i) and assess two strikes against him. Finally, we DENY

Suarez’s motion to proceed in forma pauperis on appeal. We remind Suarez of

his obligation to pay the full appellate filing fee.

                                                       Entered for the Court,


                                                       Timothy M. Tymkovich
                                                       Circuit Judge




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