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

                             FOR THE TENTH CIRCUIT                          July 10, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
CALVIN JOHNSON,

      Plaintiff - Appellant,

v.                                                        No. 18-1038
                                                 (D.C. No. 1:17-CV-02800-LTB)
JOHN DOE, (going to be at least 2 or                        (D. Colo.)
more “John Does”),

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges.
                  _________________________________

      Calvin Johnson appeals from the district court’s dismissal of his civil-rights

complaint under 28 U.S.C. § 1915(e)(2)(B). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

      While Mr. Johnson was incarcerated at the Colorado State Penitentiary,

another inmate, Tim Grant, started a fight with him in the day hall common area.

Prison officers responded. From outside the day hall, they ordered both Mr. Johnson


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and Mr. Grant to lie on the floor. They then told Mr. Grant to get up and walk

backwards to the slider-door to have his hands cuffed through the door slot.

Mr. Grant began complying, but before he was restrained, he launched himself at

Mr. Johnson (who was still lying on the floor), hitting him on the back and the back

of the head. Mr. Johnson suffered injuries from the attack. He was charged with and

convicted of a disciplinary offense for the incident, but he believes that Mr. Grant

was not.

       Mr. Johnson filed suit under 42 U.S.C. § 1983. In screening the initial

complaint, the magistrate judge determined he had not pled sufficient facts to support

his claims for Eighth Amendment and equal protection violations. He directed

Mr. Johnson to file an amended complaint “identify[ing] the specific factual

allegations that support each claim, against which Defendant or Defendants he is

asserting each claim, and what each Defendant did that allegedly violated his rights.”

R. at 20. “In order to state an arguable Eighth Amendment claim Mr. Johnson must

allege specific facts that demonstrate [officers’] deliberate indifference to a

substantial risk of serious harm.” Id. at 21. And “[i]n order to assert a claim that his

right to equal protection has been violated Mr. Johnson must allege facts that

demonstrate he intentionally was treated differently than similarly situated inmates.”

Id. at 22.

       Mr. Johnson’s amended complaint alleged that unknown prison officers were

deliberately indifferent to his safety, in violation of his Eighth Amendment rights,

when they failed to enter the day hall immediately upon arriving at the scene of the

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altercation, ordered him into a vulnerable position, and then failed to stop Mr. Grant

from attacking him either by tasering or pepper-spraying Mr. Grant through the door

slot. With regard to the equal protection claim, Mr. Johnson alleged that he and

Mr. Grant were housed on the same day hall and tier, making them similarly situated.

       The district court construed Mr. Johnson’s pro se amended complaint liberally

but concluded it was legally frivolous and dismissed it under 28 U.S.C.

§ 1915(e)(2)(B)(i) (“Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the court determines

that . . . the action . . . is frivolous or malicious.”). After summarizing the applicable

Eighth Amendment standards, the court held that Mr. Johnson had failed to allege

sufficient facts to support an Eighth Amendment claim:

       Even assuming the responding officers knew the inmates posed a
       substantial risk of serious harm to each other after they had complied with
       the order to lie down on the floor, Mr. Johnson does not allege facts that
       demonstrate the responding officers failed to act reasonably to abate the
       risk. Instead, it is apparent that the officers reasonably responded to that
       risk by attempting to place the inmates in handcuffs one at a time.
       Mr. Johnson does not allege that the responding officers knew Mr. Grant
       would launch a new attack if he was allowed to get up in order to be the
       first one to be placed in handcuffs. Furthermore, Mr. Grant’s failure to
       comply with the attempt to restrain him does not mean the steps taken by
       the responding officers were unreasonable. Mr. Johnson’s speculation that
       the assault could have been prevented if the officers had entered the dayhall
       sooner or if they had used a taser or pepper spray when Mr. Grant failed to
       comply also does not demonstrate the responding officers acted
       unreasonably.




                                             3
R. at 36-37. As for the equal protection claim, the district court again reviewed the

applicable law and held that

              Mr. Johnson fails to allege specific facts that demonstrate he
       intentionally was treated differently than a similarly situated inmate. His
       speculation that Mr. Grant may not have been charged with a disciplinary
       offense is not sufficient to state a cognizable constitutional claim that he
       has been denied equal protection. Furthermore, even assuming Mr. Grant
       was not charged with a disciplinary offense regarding the initial fight,
       Mr. Johnson fails to allege specific facts that demonstrate he and Mr. Grant
       are similarly situated with respect to their relative involvement in that
       altercation.
Id. at 38 (citations omitted).

       Mr. Johnson now appeals. “We generally review a district court’s dismissal

for frivolousness under § 1915 for abuse of discretion[, but] where the frivolousness

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

v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).

       We are not convinced that Mr. Johnson’s amended complaint was so deficient

as to be frivolous. “[A] complaint, containing as it does both factual allegations

and legal conclusions, is frivolous where it lacks an arguable basis either in law or in

fact. . . . [The] term ‘frivolous,’ when applied to a complaint, embraces not only the

inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). But the frivolousness standard is intended to

apply to “claim[s] based on an indisputably meritless legal theory” or “claims

describing fantastic or delusional scenarios,” id. at 327-28, not claims that merely fail

to state a claim upon which relief can be granted, id. at 330. Mr. Johnson invokes

recognized legal theories and does not present fanciful factual allegations.

                                            4
       Nevertheless, Mr. Johnson’s claims cannot proceed. For substantially the

reasons discussed by the district court, the facts he alleges fail to rise to the level of

stating plausible Eighth Amendment or due process violations. He has “not nudged

[his] claims across the line from conceivable to plausible,” as he is required to do to

state a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In these

circumstances, dismissal under § 1915(b)(2)(B) remains appropriate—but under

§ 1915(e)(2)(B)(ii), which allows dismissal for failure to state a claim upon which

relief can be granted, rather than under § 1915(e)(2)(B)(i).

       The district court’s judgment is affirmed. Mr. Johnson’s motion to proceed

without prepayment of fees or costs is granted. Mr. Johnson shall continue making

partial payments to the district court until the full amount of the filing and docketing

fees have been paid. His “Motion for the U.S. Court of Appeals Panel of Judges to

Grant the Following” is denied.


                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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