                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 20, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                          FOR THE TENTH CIRCUIT




    PAUL RICHARD PAYNE,

              Plaintiff-Appellant,

    v.                                                 No. 07-4121
                                               (D.C. No. 2:04-CV-844-DAK)
    CLINT FRIEL, Warden;                                 (D. Utah)
    RICK BROWN; CRAIG BALLS;
    MATTHEW FAIRBANKS; FNU
    SIBBETT; BLAKE NEILSON;
    EILEEN CLARK; SHELBY
    HERBERT; DAVID ANGERHOFFER;
    WAYNE FREESTONE; FNU PERRY,
    Guard; FNU FEICKERT, Guard;
    BRYANT HERMAN; B. SCOTT,
    Sergeant; M. DELYNN SUMMERS;
    BILLIE CASPER; FNU MEYERS,
    Lieutenant; TOM ANDERSON;
    SCOTT CARVER,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.


*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff Paul Richard Payne, a Utah state prisoner proceeding pro se,

challenges the district court’s sua sponte dismissal of his civil rights complaint

under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. Our jurisdiction

arises under 28 U.S.C. § 1291 and we affirm in part, reverse in part, and remand.

                                   I. Background

      Mr. Payne filed this 42 U.S.C. § 1983 action in September 2004 against the

warden and several corrections officers of the Utah State Prison, certain members

of Utah’s Board of Pardons and Paroles, and lawyers working under contract with

the prison to provide limited legal services to inmates. In an exhaustive 17-count

complaint, Mr. Payne detailed numerous alleged violations of his constitutional

rights, which, for purposes of this appeal, we distill as follows: (1) that he was

disciplined in violation of his due process rights; (2) that the parole board

violated his Fifth Amendment rights by drawing a negative inference from his

refusal to discuss the murder of a fellow inmate; (3) that his due process rights

were violated as a result of the prison’s arbitrary classification system and his

placement in administrative segregation; (4) that he was denied meaningful access

to the courts; (5) that he is forced to live in inhumane conditions in violation of

the Eighth Amendment; (6) that he is denied access to the press; (7) that his

property was seized without due process; and (8) that the prison grievance system

is a farce and a sham.


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      The district court concluded that, even liberally construed, none of the

counts in Mr. Payne’s complaint stated a cognizable claim under § 1983 and that

it would be futile to allow him to amend his pleadings. Accordingly, on April 10,

2007, it dismissed the case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to

state a claim upon which relief can be granted. The following summary of the

district court’s reasoning corresponds to our numbered categories above.

      First, the court concluded that Mr. Payne was afforded the minimum level

of constitutional due process required in his disciplinary proceedings because “he

received advance written notice of the hearing, . . . he was allowed to present

evidence, and . . . the grounds for the guilty finding were set out in writing.” R.

Vol. IV, Doc. 41 at 5. The court also held that “[d]ouble jeopardy protections to

do not apply to prison disciplinary proceedings.” Id. at 6.

      Second, the court rejected his complaints about his parole hearing,

explaining that “there is no constitutional or inherent right of a convicted person

to be conditionally released before the expiration of a valid sentence.” Id. at 7

(quotation and alteration omitted). Since Mr. Payne is serving a life sentence, the

court held there was no constitutional violation in the board’s denial of parole

notwithstanding any alleged procedural errors. The court also held that the parole

board could, consistent with Mr. Payne’s Fifth Amendment right against

compelled self-incrimination, draw a negative inference from his refusal to




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discuss particular subjects at his parole hearing. See id. at 9 (citing Ohio Adult

Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998)).

      Third, the court held Mr. Payne was not entitled to relief under § 1983 by

virtue of his classification in administrative segregation. The court explained that

inmates have no federal constitutional right to any specific classification or

housing assignment. Rather, a protected liberty interest arises with respect to

prison classification only where it “imposes 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). Concluding that “[t]he regime to which [Mr. Payne]

[was] subjected as a result of his classification [was] clearly within the normal

limits or range of custody which his conviction . . . authorized the State to

impose,” R. Vol. IV, Doc. 41 at 11, the court found no liberty interest, and thus

no constitutional deprivation, arising out of his placement in administrative

segregation.

      Fourth, the court held that the volume of material that Mr. Payne was able

to file in this case demonstrated that he could not state a claim for denial of

meaningful access to the courts. The court also rejected his complaints about the

prison’s reliance on contract attorneys in lieu of a law library based on this

court’s acceptance in Carper v. DeLand, 54 F.3d 613, 616-617 (10th Cir. 1995),

of the very system being challenged.




                                          -4-
      The court went on to separately address each of Mr. Payne’s Eighth

Amendment claims, which ranged from complaints about the cold temperature in

his cell to the quality of his meals. None, the court held, constituted cruel and

unusual punishment in violation of the Eighth Amendment. The court explained

that an Eighth Amendment claim entails both objective and subjective

components. “The objective component is met only if the condition complained

of is ‘sufficiently serious,’” meaning that it “poses ‘a substantial risk of serious

harm.’” R. Vol. IV, Doc. 41 at 19 (quoting Farmer v. Brennan, 511 U.S. 825,

834 (1994)). The second component requires the prison official to have a

“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (quotation

omitted). This, the court explained, requires the inmate to allege on the part of

the defendant prison officials, a deliberate indifference to his health or safety.

“Deliberate indifference requires both knowledge and disregard of possible risks,

a mens rea on a par with criminal recklessness.” R. Vol. IV, Doc. 41 at 20

(quotation omitted). The court concluded that Mr. Payne failed to allege facts

meeting either the objective or subjective components of a valid Eighth

Amendment claim.

      The district court rejected the final three categories of claims more

summarily. It concluded that the prison’s vendor policy, which controls the

books to which inmates have access, was reasonably related to valid penological

interests as required by Turner v. Safley, 482 U.S. 78, 88 (1987), and thus it

                                          -5-
rejected Mr. Payne’s “access-to-the-press” claim. It rejected his property-seizure

claim because Mr. Payne failed to allege insufficient post-deprivation procedures.

And it held he failed to state a claim based on the alleged shortcomings of the

prison’s grievance system because since Jones v. Bock, 127 S. Ct. 910, 921

(2007), exhaustion of administrative remedies is no longer a pleading

requirement.

      Mr. Payne appeals the dismissal of each of his claims, arguing that the

district court both misconstrued his pleadings and committed legal error.

                                    II. Discussion

      We review de novo a district court’s dismissal for failure to state a claim

under 28 U.S.C. § 1915(e)(2)(B). Perkins v. Kan. Dep’t of Corr., 165 F.3d 803,

806 (10th Cir. 1999). “Dismissal of a pro se complaint for failure to state a claim

is proper only where it is obvious that the plaintiff cannot prevail on the facts he

has alleged and it would be futile to give him an opportunity to amend.” Id. In

determining whether dismissal is proper, we accept the plaintiff’s allegations as

true and construe them and all reasonable inferences to be drawn from them in the

light most favorable to the plaintiff. Id. We have carefully examined Mr.

Payne’s complaint in light of the additional consistent facts that he provided in

his appellate brief. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)

(noting that it may be appropriate to consider additional facts asserted in brief so

long as they are consistent with facts and theories advanced in complaint). And

                                          -6-
we are satisfied that the district court correctly dismissed all but Count Three of

the complaint, which alleged a due process violation arising out of Mr. Payne’s

classification in administrative segregation.

      In support of this claim, Mr. Payne alleged that the prison’s classification

system is “defunct and void of due process.” R. Vol. I, Doc. 4 at 6. He claims he

was arbitrarily placed in Intensive Management (“IM”) when he arrived at the

prison in 2003 and that he has remained there ever since. He goes on to explain,

in support of one of his Eighth Amendment claims, that IM is administrative

segregation, which “is not [meant] to be punitive.” Id. at 28. Nonetheless, he

claims that because of his classification, he is locked in his cell all but three hours

per week and is denied access to books, magazines, a television or radio, paper,

art supplies, hobby/craft materials, and all other means of entertainment. He also

claims that he has “zero access to jobs, programming or education[,] thus

negating any form or rehabilitation.” Id. at 37. Further elaborating his plight in

his brief to this court, Mr. Payne argues that his “treatment, in relation to other

IM prisoners is atypical and significant as they do 45 days in IM while [he] has

been in IM for 3 ½ years [without] incident.” Aplt. Op. Br. at 20.

      The district court dismissed this claim because it concluded that Mr. Payne

did not have a constitutional right to any specific classification or housing

assignment. And it further held that he could not show that his classification

“impose[d] an atypical or significant hardship on him in relation to the ordinary

                                          -7-
incidents of prison life, or [was] likely to lengthen his term of confinement.” R.

Vol. IV, Doc. 41 at 11. This unsupported analysis, however, did not go far

enough. The district court correctly observed that “classification of a plaintiff

into segregation does not involve deprivation of a liberty interest independently

protected by the Due Process Clause.” Trujillo v. Williams, 465 F.3d 1210, 1225

(10th Cir. 2006) (quotation and alterations omitted). A liberty interest may be

created, however, if the segregation imposes “atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S.

at 484. When a prisoner makes such an allegation based on his confinement in

segregation, the district court must conduct an evidentiary analysis to determine

whether the duration of the confinement was itself atypical and significant. See

Trujillo, 465 F.3d at 1225 (reversing dismissal of due process claim where

prisoner alleged that he spent 750 days in segregation compared to other inmates’

stays of 180 days); Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006)

(holding that district court abused its discretion in concluding that three-year

period of segregation was not even arguably atypical); Gaines v. Stenseng,

292 F.3d 1222, 1225-26 (10th Cir. 2002) (reversing dismissal of due process

claim and remanding to district court to determine whether 75-day confinement in

disciplinary segregation was itself atypical and significant).

      By the time the district court issued its ruling, Mr. Payne had been confined

to administrative segregation for over three years. Nonetheless, the district court

                                          -8-
dismissed his due process claim at the pleading stage without inquiring into

whether the duration of his confinement in segregation alone constituted an

atypical and significant hardship. This was error. See Perkins, 165 F.3d at 809

(noting that the state must “fully address both the duration and degree of

plaintiff’s restrictions as compared with other inmates”); Gaines, 292 F.3d at

1226 (holding that it was inappropriate to dismiss due process claim at pleading

stage). We therefore reverse the dismissal of Count Three of the complaint and

remand to allow the district court to conduct the appropriate evidentiary analysis.

We note, however, that not all of the defendants are implicated in Mr. Payne’s

due process claim relating to his confinement in segregation. The district court is

therefore advised to examine Mr. Payne’s complaint and order service of process

only upon the appropriate defendants.

      We affirm the district court’s dismissal of all other claims for substantially

the same reasons articulated in its order of April 10, 2007.

                                  III. Conclusion

      The dismissal of Count Three of the complaint is REVERSED and the case

is REMANDED with instructions to the district court to examine the allegations




                                         -9-
supporting this claim and have the appropriate defendants served pursuant to

28 U.S.C. § 1915(d). The dismissal of all other counts is AFFIRMED.


                                              Entered for the Court



                                              Bobby R. Baldock
                                              Circuit Judge




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