                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                     August 20, 2013
                                      TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court


    TIMOTHY MEEK,

                 Plaintiff - Appellant,                     No. 13-1249
           v.                                     (D.C. No. 1:13-CV-00659-LTB)
    SARGEANT MR. JORDAN, CAPTIN                           (D. Colorado)
    [sic] MR. ROMERO, SARGEANT MR.
    ROLANDO, and CAPTIN [sic] MOORE,
    each sued individually and in his official
    capacity.

                 Respondents - Appellees.



                                ORDER AND JUDGMENT*


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. Timothy Meek sued four prison officials, and the federal district court

dismissed the action on grounds that it was too vague and that Mr. Meek had failed

to comply with prior orders to correct the pleading defects. Disagreeing with the

district court’s ruling, Mr. Meek appeals. We need not decide whether the

*
         This order and judgment does not constitute precedent. 10th Cir. R. 32.1(A).

      After examining the briefs and appellate record, this panel has determined
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.
amended complaint was too vague, however, because we conclude that Mr. Meek

has failed to state a claim on which relief can be granted. Thus, we affirm the

dismissal on different grounds.

                               The Amended Complaint

      While incarcerated, Mr. Meek was charged with a disciplinary infraction.

He states that authorities conducted a hearing, found him guilty, and ordered

punitive segregation for 60 days. Complaining that this sanction violated his

rights to due process and equal protection, Mr. Meek sues under 42 U.S.C. § 1983.

                         The District Court’s Rationale

      The district court dismissed the action without prejudice on the ground that

the amended complaint was too vague. We need not address the district court’s

rationale when we can affirm on different grounds. See Colo. Flying Academy,

Inc. v. United States, 724 F.2d 871, 879-80 (10th Cir. 1984). We can affirm on

different grounds here because the amended complaint fails to state a claim on

which relief can be granted.

                           The Standard for Dismissal

      Mr. Meek is appearing in forma pauperis and is a prisoner suing

government employees over prison conditions. Because of these circumstances,

federal law would have required the district court to screen the amended complaint

even if it had been sufficiently specific. Prison Litigation Reform Act, 28 U.S.C.

§§ 1915(e)(2)(B), 1915A(b) (2006); Prison Litigation Reform Act, 42 U.S.C.

                                         2
§ 1997e(c)(1) (2006). That screening would have required the court to decide

whether the amended complaint stated a claim on which relief could be granted.

Prison Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1)

(2006); Prison Litigation Reform Act, 42 U.S.C. § 1997e(c)(1) (2006).

      In screening the amended complaint for this purpose, we apply the standard

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a valid claim.

Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (citation omitted). Under this

standard, we disregard conclusory allegations, which are not entitled to a

presumption of truthfulness. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). After

disregarding conclusory allegations, we consider the remaining factual allegations

to determine whether they plausibly suggest a right to relief. Id.

                       Mr. Meek’s Equal Protection Claim

      The equal protection claim consists of one sentence: “The 60 day punitive

sanction violated plaintiff’s Timothy Meek’s rights and constituted a [sic] . . .

equal rights violation due to [his] prior gang affiliation tattoos, under the 14th

Amendment to the United States Constitution.” Am. Compl. at 6, ECF No. 15,

Meek v. Jordan, 13-cv-659-BNB (D. Colo. May 7, 2013). This sentence does not

contain sufficient facts to create a plausible right to relief as an equal-protection

violation.

      The Equal Protection Clause is violated when the government discriminates

between similarly-situated individuals. Penrod v. Zavaras, 94 F.3d 1399, 1406

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(10th Cir. 1996) (per curiam). Though Mr. Meek invokes this clause, he does not

identify anyone who was similarly-situated.

       From the single sentence in the amended complaint, we think the claim is

based on suspicion that Mr. Meek was given 60 days in punitive segregation –

while others were given lighter penalties – because he had tattoos that showed

affiliation with a gang. Am. Compl. at 6, ECF No. 15, Meek v. Jordan, 13-cv-659-

BNB (D. Colo. May 7, 2013). 1 This allegation does not contain enough factual

content to suggest a plausible equal-protection claim.

       Though Mr. Meek refers to his gang tattoos, he does not allege any facts

that would suggest similarities to other prisoners who were treated more

favorably. The omission is fatal to the equal-protection claim. See Templeman v.

Gunter, 16 F.3d 367, 371 (10th Cir. 1994) (concluding that a prisoner’s equal-

protection claim was frivolous because of the inability to allege similarities “in

every relevant respect” to other inmates who were classified more favorably); see

also Fogle v. Pierson, 435 F.3d 1252, 1260-61 (10th Cir. 2006) (a prisoner’s

equal-protection claim, based on a difference in the length of administrative

detention, was frivolous because it was not plausible to suggest identical



1
       The Sixth Circuit Court of Appeals has held that the Equal Protection Clause does
not prohibit classification of prisoners based on gang affiliation. Harbin-Bey v. Rutter,
420 F.3d 571, 576 (6th Cir. 2005). We need not decide whether gang affiliation provides
a permissible basis for differences in classification. As discussed in the text, Mr. Meek
has not alleged any facts that would plausibly indicate similarities with others disciplined
for comparable infractions.
                                             4
circumstances with other inmates who were treated more favorably). As a result,

Mr. Meek has not stated a valid equal-protection claim.

                          Mr. Meek’s Due Process Claim

      The amended complaint also includes a due process claim. For this claim,

the threshold issue is whether Mr. Meek has alleged facts that would plausibly

implicate a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557

(1974). He has not done so.

      For inmates being punished for misconduct, a liberty interest exists only

when the penalty lengthens the confinement or involves an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (atypical and significant

hardship); Wilson v. Jones, 430 F.3d 1113, 1120-21 (10th Cir. 2005) (length of

confinement). Mr. Meek does not suggest that he had to spend more time in prison

because of his disciplinary conviction. Thus, the issue is whether 60 days in

punitive segregation would involve an atypical and significant hardship on Mr.

Meek in relation to the ordinary incidents of prison life.

      In Sandin v. Conner, the Supreme Court held that 30 days in disciplinary

segregation did not implicate a liberty interest. 515 U.S. at 475-76, 486.

Applying this principle, we later held that a prisoner had failed to state a valid

claim because four weeks in an isolation cell would not have created an atypical,




                                           5
significant deprivation without other factual allegations. Gee v. Pacheco, 627

F.3d 1178, 1193-94 (10th Cir. 2010).

      The present case involves punitive segregation for 60 days, rather than 30

days or 4 weeks. But Mr. Meek has not pleaded any facts that would plausibly

indicate that 60 days in disciplinary segregation is atypical in relation to the

ordinary incidents of prison life. See Estate of DiMarco v. Wyo. Dep’t Corr., 473

F.3d 1334, 1343 (10th Cir. 2007) (placement in administrative segregation for

fourteen months did not trigger a liberty interest under Sandin); accord Hoskins v.

Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005) (two months in punitive segregation

did not trigger a liberty interest). Thus, the due-process claim is deficient as a

matter of law based on the absence of a protected liberty interest.

                             Disposition of the Appeal

      The dismissal of the action is affirmed.


                                        Entered for the Court



                                        Robert E. Bacharach
                                        Circuit Judge




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