                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 16, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 DEREK RYAN SCHELL,

              Plaintiff-Appellant,

 v.
                                                       No. 12-6267
 EDWARD L. EVANS, Interim
                                                (D.C. No. 5:12-CV-00866-M)
 Director, Oklahoma Department of
                                                       (W.D. Okla.)
 Corrections; * SHARON MCCOY;
 STEVE YOUNG; CHIEF LOGAN;
 MARVIN VAUGHN; LINDA EIKE,

              Defendants-Appellees.


                           ORDER AND JUDGMENT **


Before KELLY, HOLMES, and MATHESON, Circuit Judges.




      *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Edward L.
Evans, the current Interim Director of the Oklahoma Department of Corrections,
is automatically substituted for Justin Jones as a Defendant in this case.
      **
             After examining the briefs and appellate record, this panel has
decided unanimously that oral argument would not materially assist 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             This order and judgment is not binding precedent, except under the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 estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      Plaintiff-Appellant Derek Ryan Schell, an Oklahoma state prisoner

proceeding pro se, 1 appeals from the district court’s dismissal of his claims

brought pursuant to 42 U.S.C. § 1983 against the Director of the Oklahoma

Department of Corrections (“ODOC”) and numerous other ODOC employees

(collectively, “Defendants”). In connection with his appeal, Mr. Schell has filed a

self-styled “motion in limine,” which we address in this order and judgment. Mr.

Schell also seeks leave to proceed in forma pauperis (“IFP”). For the reasons

discussed below, we affirm the district court’s dismissal of Mr. Schell’s § 1983

complaint, deny his motion in limine, and deny him IFP status.

                                          I

      On April 26, 2010, Mr. Schell entered a no-contest plea to pointing a

firearm at a person, in violation of Okla. Stat. tit. 21, § 1289.16. He was

sentenced to a term of ten years’ imprisonment in the ODOC. Despite his request

to the contrary, he was assigned to the John Lilley Correctional Center (“JLCC”)

in March 2011. Mr. Schell contends that Defendants deliberately sent him there

“in hopes that a gladiator fight would arise” between him and a JLCC inmate with

whom he evidently did not get along—and that in July 2011, to conceal this

“wrongful transfer,” Defendants moved him to the Frederick Community Work

Center (“FCWC”). R. at 8–9 (Compl., filed Aug. 10, 2012).

      1
             As we further explicate below, we afford Mr. Schell’s pro se filings a
liberal construction. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir.
2010); Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

                                         -2-
      Mr. Schell also maintains that one of the Defendants blocked his access to

the FCWC’s law library, thereby preventing him from making timely post-

conviction filings and “causing [his] case to be dismissed.” Id. at 6. According

to Mr. Schell, he committed an infraction in order to effect a transfer to a higher-

security facility—the William S. Key Correctional Center (“WSKCC”)—where he

thought he would be able to access a law library and file for state post-conviction

relief. Mr. Schell alleges that his request was denied and that he subsequently

petitioned for federal habeas relief in the Eastern District of Oklahoma. But,

according to Mr. Schell, Defendants again sabotaged his case by withholding his

petition from the mail.

      On August 10, 2012, Mr. Schell filed a § 1983 lawsuit in the Western

District of Oklahoma, alleging violations of his Fifth, Eighth, and Fourteenth

Amendment rights. 2 He requested dismissal of his criminal case, an order

directing the ODOC not to commit any “recourse or retaliation” against him, and

a transfer to a facility “close to home.” Id. at 11. The district court—adopting

the preliminary-screening recommendation of the magistrate judge (over Mr.

Schell’s objection)—dismissed the complaint in accordance with 28 U.S.C.




      2
              Days before filing his § 1983 lawsuit, Mr. Schell also sought habeas
relief in the Western District of Oklahoma. His habeas petition is the subject of a
separate, factually related order in Appeal No. 12-6271, in which we deny Mr.
Schell a certificate of appealability and dismiss that matter.

                                         -3-
§ 1915A. After Mr. Schell filed his notice of appeal on October 18, 2012, the

district court denied his two motions for leave to proceed IFP.

                                          II

      We first address Mr. Schell’s argument that the district court erred in

dismissing his § 1983 complaint. We then turn to his self-styled “motion in

limine,” wherein he requests a transfer to a different facility, and then to his

request to proceed IFP.

                                          A

      Dismissal of a complaint pursuant to 28 U.S.C. § 1915A is a legal question

we review de novo. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009).

As we must when assessing any dismissal for failure to state an actionable claim,

we “accept as true all well-pleaded facts, as distinguished from conclusory

allegations, and view those facts in the light most favorable to the nonmoving

party.” Moya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006) (internal

quotation marks omitted).

      To avoid dismissal, a plaintiff must allege facts sufficient to make his

claims facially plausible. See Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950,

959 (10th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). Context is particularly critical to this determination with respect to

                                         -4-
prisoner litigation. See Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010)

(“[A] prisoner claim will often not be plausible unless it recites facts that might

well be unnecessary in other contexts.”). Indeed, prisoners’ constitutional rights

“must be exercised with due regard for the ‘inordinately difficult undertaking’

that is modern prison administration.” Thornburgh v. Abbott, 490 U.S. 401, 407

(1989) (quoting Turner v. Safley, 482 U.S. 78, 85 (1987)).

                                          B

      Mr. Schell asserted three claims for relief against Defendants in his § 1983

complaint: (1) “[i]ndifference toward the plaintiff,” in violation of his Eighth and

Fourteenth Amendment rights (Count I); (2) denial of access to a law library, in

violation of his Fifth Amendment due-process rights (Count II); and (3)

frustration of his efforts to defend and maintain his habeas action in the Eastern

District of Oklahoma, purportedly in violation of his general constitutional rights

(Count III). R. at 8–10.

                                          1

      Mindful of the Supreme Court’s directive in Haines v. Kerner, 404 U.S.

519, 520 (1972) (per curiam), we hold a pro se plaintiff’s pleadings “to a less

stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation

marks omitted). We have understood the Haines rule to mean “that if the court

can reasonably read the pleadings to state a valid claim on which the plaintiff

                                          -5-
could prevail, it should do so.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). In addition, we afford pro se litigants reasonable opportunities to cure any

defects in their pleadings. See id. at 1110 n.3; Reynoldson v. Shillinger, 907 F.2d

124, 126 (10th Cir. 1990). At the same time, “the court should not assume the

role of advocate, and should dismiss claims which are supported only by vague

and conclusory allegations.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1188

(10th Cir. 2003) (internal quotation marks omitted); see also Hall, 935 F.2d at

1110 (“[T]he court need accept as true only the plaintiff’s well-pleaded factual

contentions . . . .” (emphasis added)). The onus does not fall upon the court to

supply additional facts or legal theories to benefit pro se plaintiffs. See Smith v.

United States, 561 F.3d 1090, 1096 (10th Cir. 2009); Whitney v. New Mexico, 113

F.3d 1170, 1173–74 (10th Cir. 1997).

      A plaintiff bringing a § 1983 claim must “allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.”

Bruner v. Baker, 506 F.3d 1021, 1025–26 (10th Cir. 2007) (internal quotation

marks omitted). Where, as here, the plaintiff names several individuals as

defendants, “the complaint [must] make clear exactly who is alleged to have done

what to whom, to provide each individual with fair notice as to the basis of the

claims against him or her.” Robbins v. Okla. ex rel. Dep’t of Human Servs., 519

F.3d 1242, 1250 (10th Cir. 2008). The complaint must also demonstrate personal

                                          -6-
involvement on the part of each individual. See Grimsley v. MacKay, 93 F.3d

676, 680 (10th Cir. 1996). Additionally, the plaintiff must allege a causal

connection—viz., that the defendants “set in motion a series of events that caused

the constitutional violation.” Schneider v. City of Grand Junction Police Dep’t,

717 F.3d 760, 779 (10th Cir. 2013).

                                         2

      Even a generous reading of Mr. Schell’s complaint indicates that Count I,

wherein he alleges violations of the Eighth and Fourteenth Amendments, fails to

state a viable § 1983 claim. To be sure, there is no bright-line test “by which

courts determine whether conditions of confinement are cruel and unusual” for

Eighth Amendment purposes. Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

Nonetheless, Count I does not describe a “deprivation[] denying the minimal

civilized measure of life’s necessities,” thereby offending the Eighth Amendment.

Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (internal quotation marks

omitted).

      The essence of Mr. Schell’s position is that Defendants were “indifferent”

to his housing preferences—not that they acted with “deliberate indifference,” as

the Supreme Court has defined that term. Farmer v. Brennan, 511 U.S. 825, 837

(1994) (emphasis added). Indeed, his specific allegations merely show that he

wanted to be separated from another inmate; yet, Mr. Schell concedes that

Defendants placed the other inmate in protective custody the entire time both men

                                        -7-
resided at the JLCC. This admission suggests that Defendants were actually

responsive to Mr. Schell’s needs, and it plainly defeats his Eighth Amendment

claim. See Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (noting

that a prison official may be liable for an Eighth Amendment violation “only if

the official knows of and disregards an excessive risk” to the inmate (emphasis

added) (internal quotation marks omitted)).

      Moreover, to the extent that Count I asserts a violation of Mr. Schell’s

Fourteenth Amendment rights, it is equally infirm. As a matter of law, Mr. Schell

has no protected liberty interest in being incarcerated in a facility of his choosing,

see Meachum v. Fano, 427 U.S. 215, 228–29 (1976); Gee, 627 F.3d at 1193, or in

any other discretionary housing classifications by prison officials, see Cardoso v.

Calbone, 490 F.3d 1194, 1197–98 (10th Cir. 2007). Indeed, he has no liberty

interest in his conditions of confinement, unless he alleges facts showing that the

conditions “impose[] atypical and significant hardship on [him] in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995);

accord Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1339 (10th Cir.

2007). Mr. Schell patently has made no such showing. We therefore conclude

that the district court properly dismissed his complaint regarding the Eighth and

Fourteenth Amendments.




                                         -8-
                                          3

      Insofar as Mr. Schell’s second claim for relief alleges a Fifth Amendment

violation, it is likewise unavailing. Mr. Schell contends in Count II that

Defendants violated his Fifth Amendment rights by blocking his access to a law

library (and, in effect, the courts)—which, he asserts, resulted from his transfer to

the FCWC. Throughout this lawsuit, he has claimed that Defendants caused him

to miss the filing deadline for his habeas petition in the Eastern District of

Oklahoma.

      Mr. Schell’s Fifth Amendment claim is predicated on allegations that

Defendants unlawfully denied his “numerous . . . [requests] to use a legal library

system” during his stint at the FCWC. R. at 7. The problem for Mr. Schell is

that the procedural history of his case undercuts his claim for relief. Specifically,

Mr. Schell was transferred to the FCWC on July 20, 2011—almost two months

after the limitations period for Mr. Schell to file his habeas petition expired.

      Mr. Schell entered his plea and was sentenced on April 26, 2010. His

judgment and sentence became final on May 6, 2010, when the time for

withdrawing a guilty plea expired without Mr. Schell taking any action to do so.

See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat.

tit. 22, ch. 18, app. (2010) (allowing a defendant ten days to move to withdraw his

plea after the entry of judgment and sentence). Absent any indication of tolling

(and there is none), the limitations period for Mr. Schell to file his habeas petition

                                         -9-
expired one year later—on May 9, 2011. 3 See 28 U.S.C. § 2244(d)(1). In an

analysis that reflected these operative dates, the district court ultimately

dismissed Mr. Schell’s habeas petition in the Eastern District of Oklahoma as

time-barred. See Schell v. Vaughn, Dist. Ct. No. 6:12-cv-00203-JHP-KEW, Doc.

23, at 2 (Op. & Order, filed July 11, 2012).

      Thus, Mr. Schell’s claim that Defendants’ unconstitutional conduct at the

FCWC caused him to miss his habeas filing deadline is fatally undercut by the

fact that this deadline had already expired when Mr. Schell arrived at the FCWC.

At no point in the instant lawsuit has he argued that he lacked access to the courts

when he was still situated to pursue federal habeas relief—i.e., between March

23, 2011, and May 9, 2011, when he resided at the JLCC. Stated otherwise, at the

time of Defendants’ alleged malfeasance, Mr. Schell suffered no legally

cognizable injury. Because § 1983 requires him to demonstrate an injury that is

causally linked to his conditions of confinement, this is fatal to his claim. See

Tafoya v. Salazar, 516 F.3d 912, 922 (10th Cir. 2008); Grimsley, 93 F.3d at 679;

see also Lewis v. Casey, 518 U.S. 343, 349 (1996) (underscoring the importance

of alleging an “actual injury”).




      3
             The one-year period actually expired on May 7, 2011, which fell on a
Saturday. Accordingly, pursuant to the federal rules, Mr. Schell’s official filing
deadline was the following Monday, May 9, 2011. See Fed. R. App. P. 4(a)(1);
Fed. R. Civ. P. 6(a)(1)(C).

                                         -10-
      Given Mr. Schell’s failure to state a cognizable Fifth Amendment violation,

we conclude that the district court correctly dismissed Count II of his § 1983

complaint.

                                          4

      Mr. Schell’s theory of relief in Count III is that Defendants frustrated his

efforts to defend and maintain his habeas petition in the Eastern District of

Oklahoma. More specifically, Mr. Schell alleges that he had a deadline to

respond to counsel for the State of Oklahoma and that, through the WSKCC

librarian, Defendants “knew of the deadline . . . and withheld the mail sent on

June 25th, 2012 [until] July 09th, 2012.” R. at 9–10. For similar reasons to those

that we advanced as to Count II, this claim is untenable because of timing. Quite

simply, even if some Defendants frustrated his efforts to defend and maintain his

habeas action around June and July 2012, Mr. Schell could not have suffered a

cognizable, constitutional injury from such conduct because the limitations period

for Mr. Schell to file his habeas petition unquestionably had expired long before

the misconduct of which he complains (i.e., in May 2011). Therefore, we

conclude that the district court’s dismissal of Count III for failure to state a claim

was also proper.

                                          C

      During the pendency of this appeal, Mr. Schell also filed a self-styled

“motion in limine” seeking physical protection and different housing. Arguing

                                         -11-
that Defendants have acted with deliberate indifference to his medical needs after

an alleged gang fight, he requests our assistance in effecting his transfer to a

“halfway house in Tulsa.” Mot. at 3 (10th Cir., filed Jan. 17, 2013). This motion

has no discernible merit.

      From a procedural perspective, Mr. Schell does not explain why his request

is proper in the context of this appeal from the district court’s § 1983 judgment.

Indeed, he does not seek “in limine” relief at all, as that language is customarily

understood. See Black’s Law Dictionary 1109 (9th ed. 2009) (defining “motion in

limine” as “[a] pretrial request that certain inadmissible evidence not be referred

to or offered at trial”). Even were we to construe Mr. Schell’s filing as a request

for a writ of mandamus (an arguably viable procedural mechanism, in light of the

relief that he seeks), the writ could not issue under these circumstances due to the

absence of a clear duty by the district court to provide the relief that he desires.

See, e.g., Hadley Mem’l Hosp., Inc. v. Schweiker, 689 F.2d 905, 912 (10th Cir.

1982) (noting that “[f]or mandamus to issue there must be,” among other things,

“a plainly defined and preemptory duty on the part of the defendant to do the

action in question”); see also In re Motor Fuel Temperature Sales Practices

Litig., 641 F.3d 470, 487 (10th Cir. 2011) (requiring litigant to demonstrate “more

than what we would typically consider to be an abuse of discretion” (internal

quotation marks omitted)); In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187

(10th Cir. 2009) (“It is not appropriate to issue a writ when the most that could be

                                         -12-
claimed is that the district courts have erred in ruling on matters within their

jurisdiction.” (internal quotation marks omitted)).

      Furthermore, substantively speaking, Mr. Schell’s motion is riddled with

unsupported allegations concerning Defendants that do not implicate the

Constitution. While we understand him to be challenging some conditions of his

confinement, the fact remains that he has not shown “that he is incarcerated under

conditions posing a substantial risk of serious harm.” DeSpain v. Uphoff, 264

F.3d 965, 971 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834) (internal

quotation marks omitted). We note again that Mr. Schell has no protected liberty

interest in being housed in his preferred correctional facility. See Overturf v.

Massie, 385 F.3d 1276, 1279 (10th Cir. 2004). Transfer may be a remedy in

extraordinary circumstances, but it is certainly not a right. See Blackmon v.

Sutton, 734 F.3d 1237, 1246 (10th Cir. 2013) (noting that the Supreme Court’s

key Eighth Amendment cases do not “recognize[] anything like a right to transfer

simpliciter”). In sum, Mr. Schell’s “motion in limine” is wholly without

foundation and must be denied.

                                          D

      Mr. Schell seeks leave to proceed IFP on appeal. To qualify for IFP status,

he must demonstrate “the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” Watkins v. Leyba, 543

F.3d 624, 627 (10th Cir. 2008) (internal quotation marks omitted). This, Mr.

                                         -13-
Schell has not done. We order Mr. Schell to make immediate payment on the

unpaid balance due.

                                       III

      For the foregoing reasons, we affirm the district court’s dismissal of Mr.

Schell’s § 1983 complaint, deny Mr. Schell IFP status, and deny his motion in

limine.

                                              Entered for the Court


                                              JEROME A. HOLMES
                                              Circuit Judge




                                       -14-
