                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                      PUBLISH
                                                                              JUL 15 1998
                    UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                  Clerk
                                 TENTH CIRCUIT



 DAVID S. PETERSON,

               Plaintiff-Appellant,
          v.                                               No. 96-2190
 JOHN SHANKS, Warden, WILFRED
 ROMERO, and MAJOR RUBEN
 VIGIL,

               Defendants-Appellees.


                    Appeal from the United States District Court
                          for the District of New Mexico
                             (D.C. No. CIV-95-865-C)


Submitted on the briefs:

Jeffrey J. Buckels, Albuquerque, New Mexico, for Plaintiff-Appellant.

Melinda L. Wolinsky and Ida M. Lujan, Deputy General Counsel, New Mexico
Corrections Department, Santa Fe, New Mexico, for Defendants-Appellees.


Before MURPHY, HOLLOWAY, and MAGILL, * Circuit Judges.




      *
        Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
MAGILL, Circuit Judge.


      David S. Peterson, an inmate at the Penitentiary of New Mexico, brought

this pro se suit under 42 U.S.C. § 1983, alleging that prison officials had violated

his right to be free from retaliation for the exercise of constitutional rights, his

right to have access to the courts, and his right to family visitation. Peterson also

raised claims that prison officials violated the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-68, the New Mexico anti-

racketeering statute, N.M. Stat. Ann. §§ 30-42-1 to 30-42-6, and the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4. The district

court dismissed the family visitation, RICO, New Mexico anti-racketeering, and

RFRA counts for failure to state a claim, and granted summary judgment on the

access to courts and retaliation claims. Peterson now appeals, and we affirm.



                                           I.

      Peterson has been incarcerated in the New Mexico state prison system since

1988. From November 23, 1988, until November 22, 1994, Peterson was housed

at the Central New Mexico Correctional Facility, where he proved himself to be

an ambitious jailhouse lawyer. Peterson represented a number of inmates at

administrative hearings, filed habeas corpus petitions, and brought lawsuits

against prison officials.

                                          -2-
      On December 10, 1993, one day after Peterson attended a child custody

hearing, Peterson was placed in segregation for allegedly attempting to escape

from prison. Peterson alleges that Warden John Shanks, a defendant in the instant

suit, visited him at his segregation cell and said: "'You tricky little bastard, I've

got you now. I'm going to fuck you for each and every suit you have done against

me and the prison. You tried to escape and I got your ass.'" Amend. Compl. at 2,

reprinted in R. at Tab 23. Following his alleged escape attempt, Peterson spent

forty-nine days in segregation and was removed from the honor unit of the prison.

Peterson contends that Warden Shanks directed a hearing officer to find him

guilty of attempting to escape, but that the charge was dismissed on appeal for

lack of evidence.

      On March 18, 1994, Peterson filed suit in New Mexico state court against

Warden Shanks, seeking to have the Warden removed from office. In his suit,

Peterson alleged that Warden Shanks received bribes from a food service

company in exchange for not enforcing the prison's contract with the company. In

September 1994, the New Mexico trial court ruled against Peterson, and Peterson

began pursuing an appeal in the case.

      Peterson alleges that Warden Shanks was angry with him for filing the

March 18 lawsuit. In the summer of 1994, Peterson was removed from an inmate-

child visitation program (the Impact Program), and he was denied a vegetarian


                                           -3-
diet that he allegedly required for an unidentified religious faith. On November

10, 1994, Peterson was again placed in segregation, this time because he had been

assaulted while housed in the prison's general population. Although Peterson now

contends that he was not at risk from other inmates at the Central New Mexico

Correctional Facility, Peterson was transferred to the Penitentiary of New Mexico

on November 22, 1994.

      At the time of his transfer, Peterson was working on a reply brief on his

word processor for his appeal of the dismissal of his March 18 lawsuit against

Warden Shanks. The Penitentiary of New Mexico, however, prohibits inmates

from possessing computers, because inmates can put escape plans, lotteries, and

betting sheets in encrypted files. See PNM Procedures: Inmate Personal Property

§ II(C)(1)(j) (1994) ("Typewriters may be electric or manual, but may not possess

computer, or disk operating features, i.e., floppy discs, magnetic cards, etc."

(emphasis in original)), reprinted in R. at Tab 33; Id. § II(C)(5) ("Computer

hardware or software will not be sold in the canteens or allowed as personal

property."), reprinted in R. at Tab 33. Accordingly, Peterson's word processor

and floppy disks were confiscated and given to his father. Although the New

Mexico Court of Appeals repeatedly gave Peterson extensions of time in which to

file his reply brief, Peterson never filed a reply brief, and the trial court was

ultimately affirmed.


                                           -4-
      On April 8, 1995, Warden Shanks also transferred from the Central New

Mexico Correctional Facility and became the warden of the Penitentiary of New

Mexico. Following Warden Shank's arrival at the Penitentiary of New Mexico,

Peterson contends that Warden Shanks ordered prison employees to read

Peterson's mail, and that a contract Peterson mailed to a friend was removed and

destroyed. Peterson also contends that he was denied a transfer into a clean and

quiet housing unit at the penitentiary.

      On August 7, 1995, Peterson filed this lawsuit in the United States District

Court for the District of New Mexico against Warden Shanks and other officials

of the Penitentiary of New Mexico. On March 21, 1996, the magistrate judge

recommended dismissing all of Peterson's claims, except for the retaliation and

access to courts claims, for Peterson's failure to state a claim upon which relief

could be granted. The district court adopted the recommendation without

modification. On July 12, 1996, after the defendants filed a report pursuant to

Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978) (per curiam), the

magistrate judge recommended granting summary judgment against Peterson on

his remaining claims. The district court again adopted the magistrate's




                                          -5-
recommendation and granted summary judgment against Peterson. Peterson now

appeals. 1



                                           II.

       We review the district court's dismissal of Peterson's complaint and grant of

summary judgment de novo. See Coosewoon v. Meridian Oil Co., 25 F.3d 920,

924, 929 (10th Cir. 1994). Because Peterson filed his complaint pro se, we must

construe his complaint liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991).

       "We believe that this rule means that if the court can reasonably read
       the pleadings to state a valid claim on which the plaintiff could
       prevail, it should do so despite the plaintiff's failure to cite proper
       legal authority, his confusion of various legal theories, his poor
       syntax and sentence construction, or his unfamiliarity with pleading
       requirements. At the same time, we do not believe it is the proper
       function of the district court to assume the role of advocate for the
       pro se litigant."

Id. (footnote omitted). Accordingly, "we will not supply additional facts, nor will

we construct a legal theory for plaintiff that assumes facts that have not been

pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam).




       1
        During the pendency of this appeal, Peterson has filed motions with this Court to
sanction the defendants for contempt, to amend the docketing statement, and to amend
this Court's prior grant of Peterson's motion for additional time. These motions are
denied.

                                           -6-
      In considering an inmate's suit against prison officials, we recognize "that

courts are ill equipped to deal with the increasingly urgent problems of prison

administration and reform." Turner v. Safley, 482 U.S. 78, 84 (1987) (quotations

omitted). As the Supreme Court has explained,

      "the problems of prisons in America are complex and intractable,
      and, more to the point, they are not readily susceptible of resolution
      by decree. Running a prison is an inordinately difficult undertaking
      that requires expertise, planning, and the commitment of resources,
      all of which are peculiarly within the province of the legislative and
      executive branches of government. Prison administration is,
      moreover, a task that has been committed to the responsibility of
      those branches, and separation of powers concerns counsel a policy
      of judicial restraint. Where a state penal system is involved, federal
      courts have . . . additional reason to accord deference to the
      appropriate prison authorities."

Id. at 84-85 (quotations and citation omitted).

      We have held that "[p]rison officials may not retaliate against or harass an

inmate because of the inmate's exercise of his" constitutional rights. Smith v.

Maschner, 899 F.2d 940, 947 (10th Cir. 1990). "This principle applies even

where the action taken in retaliation would be otherwise permissible." Id. at 948.

As the Supreme Court made clear in Turner, however, it is not the role of the

federal judiciary to scrutinize and interfere with the daily operations of a state

prison, and our retaliation jurisprudence does not change this role. Obviously, an

inmate is not inoculated from the normal conditions of confinement experienced

by convicted felons serving time in prison merely because he has engaged in


                                          -7-
protected activity. Accordingly, a plaintiff "must prove that 'but for' the

retaliatory motive, the incidents to which he refers, including the disciplinary

action, would not have taken place." Id. at 949-50. An inmate claiming

retaliation must "allege specific facts showing retaliation because of the exercise

of the prisoner's constitutional rights." Frazier v. DuBois, 922 F.2d 560, 562 n.1

(10th Cir. 1990) (emphasis added).

      We conclude that Peterson's allegations of retaliation must fail because he

has presented no evidence that the defendants' alleged retaliatory motives were

the "but for" cause of the defendants' actions. Peterson's placement in segregation

following his alleged escape attempt could not have been in retaliation for his

March 18 suit against Warden Shanks: Peterson was placed in segregation on

December 10, 1993, over three months before Peterson would file his suit. While

Peterson's complaint suggests that he was placed in segregation in retaliation for

his advocacy efforts on behalf of other inmates, this Court has made clear that an

inmate "does not have a protected interest in providing legal representation to

other inmates." Smith, 899 F.2d at 950.

      Peterson's allegation that his word processor was removed in retaliation for

his March 18 suit against Warden Shanks is similarly meritless. The Penitentiary

of New Mexico has an explicit, written policy prohibiting inmates from

possessing computers. Peterson has not alleged that the defendants failed to


                                          -8-
enforce this policy towards all inmates, and Peterson has no right to be exempted

from a generally applicable prison regulation.

      Nor can Peterson's transfer to the Penitentiary of New Mexico support a

cause of action for retaliation. As Peterson acknowledged, prison officials

believed that he had been assaulted while at the Central New Mexico Correctional

Facility, prompting his placement in segregation. See Letter from David S.

Peterson to the Hon. Pamela B. Minzner, Chief Judge, New Mexico Court of

Appeals (11/18/94) ("Recently I was placed in segregation. The prison

administrators believe that I either got into a fight or was assaulted."), reprinted

in R. at Tab 33. Rather than keep Peterson in segregation to protect him from

other inmates, Peterson was transferred to another facility--which we conclude is

a reasonable means of meeting the legitimate penological interest of preserving

Peterson's safety. See Frazier, 922 F.2d at 562 (allegedly retaliatory transfer of

inmate must be reasonably related to legitimate penological interests).

      Peterson's remaining allegations of retaliation are based on mere

speculation rather than evidence. For example, Peterson has not referred us to

any evidentiary support for his assertion that his mail was read and destroyed by

the defendants, and our examination of the record revealed no such evidentiary

support. Accordingly, we conclude that the district court properly granted

summary judgment against Peterson on his claim of retaliation.


                                          -9-
      Peterson's remaining claims are meritless. Peterson's RFRA claim, which is

based on the defendants' failure to provide a vegetarian diet for Peterson's

unnamed religion, is no longer actionable. See City of Boerne v. Flores, 117 S.

Ct. 2157, 2171-72 (1997) (holding that RFRA is unconstitutional as applied to

state governments). In addition, Peterson's allegation that he was denied the right

to family visitation because he was unable to participate in the Impact Program is

not a viable claim under § 1983. Contrary to Peterson's apparent assumption that

his right to visitation is absolute, the Supreme Court has held that inmates have

no right to unfettered visitation. See Kentucky Dep't of Corrections v. Thompson,

490 U.S. 454, 460 (1989). Rather, prison officials necessarily enjoy broad

discretion in controlling visitor access to a prisoner, see Ramos v. Lamm, 639

F.2d 559, 580 (10th Cir. 1980), and Peterson has not alleged that this discretion

has been abused.

      The district court also properly dismissed Peterson's claims based on

Warden Shanks's alleged racketeering activities. A private RICO claim can only

be brought by a plaintiff claiming a personal injury arising from the use or

investment of racketeering income, see Grider v. Texas Oil & Gas Corp., 868

F.2d 1147, 1149 (10th Cir. 1989), and Peterson has alleged no such injury. To

state a claim under New Mexico's anti-racketeering statute, Peterson was required

to allege an actual injury. See N.M. Stat. Ann. § 30-42-6(A) (allowing a cause of


                                        -10-
action by one "who sustains injury to his person, business or property by a pattern

of racketeering activity"). Rather than allege a specific, actual injury, however,

Peterson's complaint only alleges that "Shanks jeopardized the saftey [sic] and

security of the prison employees and the inmates by not enforcing the contract."

Amend. Compl. at 2F. Because "conclusory allegations without supporting

factual averments are insufficient to state a claim on which relief can be based,"

Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (quotations omitted),

we conclude that the district court properly dismissed this claim as well.

      Finally, the district court properly granted summary judgment against

Peterson on his denial of access to courts claim. Peterson bases his claim on the

defendants' removal of Peterson's word processor, which allegedly interfered with

Peterson's filing of a reply brief to the New Mexico Court of Appeals. To present

a viable claim for denial of access to courts, however, an inmate must allege and

prove prejudice arising from the defendants' actions. See Penrod v. Zavaras, 94

F.3d 1399, 1403 (10th Cir. 1996) (per curiam) ("an inmate must satisfy the

standing requirement of 'actual injury' by showing that the denial of legal

resources hindered the prisoner's efforts to pursue a nonfrivolous claim"); see also

Peterson v. Vargas, No. 93-2143, 1994 WL 50452, at *2 (10th Cir. Feb. 22, 1994)

(unpublished) (affirming grant of summary judgment against denial of access to

courts claim brought by Peterson in a prior suit against a different prison official


                                         -11-
because "Peterson has failed to produce evidence sufficient to show that he was

actually prejudiced by Vargas' alleged conduct"). In this case, the New Mexico

Court of Appeals gave Peterson multiple opportunities to complete his reply brief.

Despite having ample time to complete his reply brief without his word processor,

Peterson chose not to do so. Because Peterson did not accept the opportunities

that were offered to him, he cannot complain of prejudice at this late date.

      Accordingly, we AFFIRM the judgment of the district court.




                                        -12-
