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

                             FOR THE TENTH CIRCUIT                          June 23, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ADRIAN M. REQUENA,

      Plaintiff - Appellant,

v.                                                        No. 17-3096
                                                 (D.C. No. 5:13-CV-03186-SAC)
G. SHERIDAN, CCII Unit Team, in his                         (D. Kan.)
individual and official capacity; A.
FLORY, Librarian, in her individual and
official capacity; D. LANGFORD, Deputy
Warden, in his individual and official
capacity; B. LARSON, Deputy Warden, in
her individual and official capacity; J.
CHICK, CSII, in his individual and official
capacity; S. CLINE, Warden, in his
individual and official capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
                  _________________________________

      Adrian Requena appeals the district court’s dismissal of his 42 U.S.C. § 1983

claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                           I

      Requena initially filed this action as a 28 U.S.C. § 2254 petition challenging

the result of a prison disciplinary proceeding. The district court characterized his

petition as falling under § 2241 and dismissed for failure to exhaust state court

remedies. On appeal, we concluded that Requena’s claims were not cognizable under

§ 2241 but remanded for consideration of whether Requena stated a claim under

§ 1983. Requena v. Roberts, 552 F. App’x 853, 855-56 (10th Cir. 2014)

(unpublished). Requena filed an amended complaint, asserting Eighth Amendment

and due process violations, as well as denial of access to the courts. The district

court again dismissed. It concluded that Requena’s claims failed because he did not

allege that the disciplinary proceeding resulted in an atypical hardship triggering due

process protections, the alleged Eighth Amendment deprivations were not sufficiently

serious, and he had not shown that he was denied the right to advance a non-frivolous

legal claim. Requena filed a Fed. R. Civ. P. 59 motion, which was denied. He timely

appealed.

                                           II

      “We review de novo the district court’s decision to dismiss an [in forma

pauperis] complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.”

Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). In doing so, we must accept

the allegations in the complaint as true and construe them in the light most favorable

to the plaintiff. Id. Although we construe Requena’s pro se filings liberally, we may



                                           2
not make arguments for him. Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005).

      Requena argues that there is no evidence suggesting the prison’s limitations on

admitting documentary evidence in disciplinary proceedings are based on security

concerns. In assessing due process claims, “we engage in a two-step inquiry: (1)

Did the individual possess a protected interest to which due process protection was

applicable? (2) Was the individual afforded an appropriate level of process?”

Washington v. Unified Gov’t of Wyandotte Cty., 847 F.3d 1192, 1201 (10th Cir.

2017) (quotation omitted). Requena’s argument goes to the second question. But the

district court concluded that Requena’s claim failed on the first. See Sandin v.

Conner, 515 U.S. 472, 484, 487 (1995) (Due Process Clause creates a liberty interest

only as to penalties that “impose[] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life” or “will inevitably affect the duration

of [a] sentence”). Because Requena does not challenge that ruling on appeal, his

argument necessarily fails.

      Requena also argues that the district court erred in dismissing his claim for

denial of access to courts, in which he asserted that prison rules hindered his ability

to pursue a state court challenge to his disciplinary proceeding. The district court

rejected this claim, concluding that Requena could not point to a non-frivolous

argument to be advanced in that case. See Christopher v. Harbury, 536 U.S. 403, 415

(2002) (retrospective claim for denial of access to courts “must identify a



                                            3
nonfrivolous, arguable underlying claim” (quotation omitted)). Having reviewed the

state court filings, we agree with the district court’s determination.

       Lastly, Requena argues that the “some evidence” standard applicable to review

of prison disciplinary proceedings is unfair.1 See Superintendent v. Hill, 472 U.S.

445, 455 (1984). But this court is not empowered to overrule Supreme Court

precedent as to that standard. See United States v. Barrett, 496 F.3d 1079, 1119

(10th Cir. 2007).

                                            III

       AFFIRMED. Requena is reminded of his continuing obligation to make

partial payments until the fees are paid in full.


                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




       1
           Requena does not appeal the dismissal of his Eighth Amendment claim.
                                            4
