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

                                     TENTH CIRCUIT                            July 23, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    BILLY G. MARSHALL,

         Plaintiff - Appellant,
    v.                                                       No. 14-6070
    L.D. ORMAND; ROBERT BEEBE;                       (D.C. No. 5:13-CV-00865-HE)
    T. DURFEY; TRACY MCCOLLUM;                               (W.D. Okla.)
    MARK KNUTSON,

         Defendants - Appellees.


                                  ORDER AND JUDGMENT*


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. **


         Plaintiff Billy Marshall, proceeding pro se, appeals the district court’s

summary dismissal of his 42 U.S.C. §1983 claim alleging procedural due process

violations in the resolution of a prison disciplinary matter. 1 Plaintiff also seeks


* This order and judgment is not binding precedent, except under the doctrines of law of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 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.
1
  We construe Plaintiff’s pro se filings liberally. See Garza v. Davis, 596 F.3d 1198, 1201
(10th Cir. 2010).
leave to proceed in forma pauperis (“IFP”). For the following reasons, we grant

the petition to proceed IFP and affirm the district court’s judgment.

                                           I.

      The following is a summary of the facts as stated in Plaintiff’s complaint

and of course, “well-pleaded facts [in Plaintiff’s complaint] must be taken as

true.” Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). In April 2013,

as Plaintiff proceeded with his food through the prison mess hall, a prison

employee asked him to tuck-in his shirt tail. He did not immediately comply and

the prison official repeated the request. Plaintiff, again, did not comply. This led

to a verbal altercation in which the employee allegedly used racial slurs and in

response Plaintiff stated he would kill the employee or anyone else who put their

hands on him. Plaintiff filed a written grievance with prison administration about

the employee’s use of racial slurs. In the grievance, Plaintiff reiterated he would

kill “any staff” who laid hands on him.             This statement triggered prison

disciplinary proceedings. The disciplinary committee determined Plaintiff had

committed a “menacing” offense and assigned Plaintiff to maximum security

housing. 2 According to Plaintiff, inmates in maximum security are segregated

from the general population, are “normally on lockdown 23 –24 hours” a day, and

are sometimes housed with other inmates. At the time of his appeal, Plaintiff

states he has been in maximum security for over 400 days.
2
 Plaintiff’s brief at p. 4: Misconduct Offense Code 05-5 defines “menacing” as threats of
bodily harm or death to a staff member or citizen.
      Plaintiff unsuccessfully sought review of the disciplinary action within the

prison grievance system arguing the prison did not allow defense witnesses at any

stage of the disciplinary process. Plaintiff then filed this action in the United

States District Court.    A Magistrate’s Report and Recommendation (“R&R”)

reasoned Plaintiff’s claims were foreclosed by Heck v. Humphrey, 512 U.S. 477

(1994). The district judge did not adopt the magistrate’s reasoning. Instead, on

review of the Magistrate’s R&R the court held Plaintiff’s allegations established

no protected liberty interest that might give rise to a due process claim.

Accordingly, the court summarily dismissed Plaintiff’s complaint under 28 U.S.C.

§ 1915A for failure to state a claim upon which relief can be granted. When a claim is

dismissed under 28 U.S.C. § 1915A we review the dismissal de novo. Thomas v. Guffey,

367 F. App’x 957, 958–59 (10th Cir. 2010).

                                         II.

      The question that concerns us is whether Plaintiff’s placement in maximum

security created a protected liberty interest that might give rise to a procedural

due process claim for failure to allow witnesses during the prison disciplinary

process. The threshold inquiry in a due process analysis is to identify whether a

protected liberty interest is at stake. Wilkinson v. Austin, 545 U.S. 209, 221

(2005). Liberty interests “may arise from an expectation or interest created by

state laws or policies.” Estate of DiMarco v. Wyoming Dep’t of Corr., Div. of



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Prisons, 473 F.3d 1334, 1339 (10th Cir. 2007) (citing Wilkinson 545 U.S. at 221).

In the case of prisoners this “in no way implies that these. . . [interests] are not

subject to restrictions imposed by. . . the regime to which they have been lawfully

committed.”    Wolff v. McDonnell, 418 U.S. 539, 556 (1974).             The key is

balancing the prison’s necessary discretionary authority with the protections due

process provides.    Id. at 566.    Prison disciplinary proceedings can create a

protected liberty interest if they impose “atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life” or “inevitably affect the

duration of. . . [the prisoner’s] sentence.”     Sandin v. Conner, 515 U.S. 472

(1995).

      To determine whether a disciplinary proceeding creates such a burden, the

court must “identify… the baseline from which to measure what is atypical and

significant in any particular prison system.”      Estate of DiMarco, 473 F.3d at

1340. In Estate of DiMarco, the plaintiff was housed in solitary conditions for

over a year. We used the following to help establish a baseline for whether her

confinement conditions created a protected liberty interest: (1) Whether the

segregation furthers a legitimate penological interest such as safety, (2) whether

the conditions in the placement are extreme, (3) whether the punishment impacts

the inmate’s duration of incarceration, and (4) whether the placement was

indeterminate. 473 F.3d at 1342. No single factor is dispositive and the factors



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are not all inclusive. Id. In analyzing whether the placement is indeterminate the

court considered placement duration and frequency of placement review.           Id.

While no time limit for placement in administrative housing exists, a panel of this

court has held a 399-day administrative detention does not create a protected

liberty interest.    Hill v. Fleming, 173 F. App’x 664, 672 (10th Cir. 2006)

(unpublished).      To determine if Plaintiff’s confinement conditions create a

protected liberty interest we apply the same analysis here.

       We begin by looking for a legitimate penological interest.        Plaintiff’s

placement in maximum security is the consequence of verbal and written threats

to kill prison employees who laid hands on him. Segregating a prisoner as a

consequence of death threats serves the legitimate penological interest of safety

for both staff and other prisoners. See Estate of DiMarco, 473 F.3d at 1342

(noting safety is a legitimate penological interest). This factor weighs against

Plaintiff.   Second, we determine if the confinement conditions are extreme in

nature. Plaintiff does not give substantial detail as to the conditions in maximum

security; however, we do know he is not housed alone. Although this in itself is

not conclusive evidence the conditions are not extreme, it distinguishes Plaintiff’s

claim from solitary confinement cases. See Wolff 418 U.S. at 594 (noting solitary

confinement is in a distinct category as compared to other deprivations). Plaintiff

also states the unit is normally in lockdown 23 –24 hours per day. Lockdown



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periods in prison housing for inmates who may pose a safety risk are not

unexpected or extreme. Given Plaintiff is not housed alone and lockdowns in

themselves are not extreme, this factor does not weigh in Plaintiff’s favor. Third,

Plaintiff’s term of incarceration is not impacted.    Plaintiff is serving an 85%

sentence and is not yet eligible to accumulate good behavior credits; this weighs

against Plaintiff. Finally, we look to the duration of the placement. Plaintiff did

not specify how long he will be in maximum security, how often his status is

reviewed while housed there, nor a typical timeframe for similar situations. At

the time of his appeal, Plaintiff states he has been in maximum security for “over

400 days.” This exceeds the 399-day time period in Hill, though by how much is

not clear. Construing the facts in a light most favorable to Plaintiff, this factor

could weigh in Plaintiff’s favor.

      Weighed together, the factors as applied to the facts provided by Plaintiff

do not show his confinement in maximum security housing creates a protected

liberty interest. They do support a conclusion that living in maximum security is

indeed more restrictive than ordinary prison living. The difference, however, is

not so extreme as to rise to a level of atypical or significant. See Sandin 515 U.S.

at 486 (holding “discipline in segregated confinement d[oes] not present the type

of atypical, significant deprivation in which a State might conceivably create a

liberty interest”). Therefore, Plaintiff’s placement in maximum security housing



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does not create a protected liberty interest that would give rise to a due process

claim.     We therefore need not reach Plaintiff’s procedural due process claim

because “[w]e need reach the question of what process is due only if the inmate[]

establish[es] a constitutionally protected liberty interest.” Wilkinson, 545 U.S. at

221. Plaintiff did not establish a protected liberty interest and thus fails to state a

claim upon which relief can be granted; the district court properly dismissed the

Plaintiff’s complaint.

                                              IV.

         Plaintiff also petitions the court to proceed IFP. Though his claims were

ultimately without merit, they were not so frivolous or unreasoned as to imply

bad faith. See 28 U.S.C. § 1915(a)(1) & (a)(3). No evidence suggests Plaintiff’s

monthly income exceeds his monthly expenses by any significant amount such

that he would have had sufficient income to pay the filing fees at the time he

sought appeal. Cf. Brewer v. City of Overland Park Police Dep’t, 24 F. App’x

977, 979 (10th Cir. 2002) (unpublished). Therefore Plaintiff’s petition to proceed

IFP is GRANTED.




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                                     ***

     For the reasons set forth above, the judgment of the district court as to

Plaintiff’s due process claim is AFFIRMED.

                                           Entered for the Court,



                                           Bobby R. Baldock
                                           United States Circuit Judge




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