FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 24, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court CALVIN JOHNSON,
Plaintiff - Appellant,
v. No. 17-1249 (D.C. No. 1:17-CV-01559-LTB) TONYA WHITNEY, (employee I.D. (D. Colo.) 13341) (sued in both official/personal capacities),
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, McHUGH, and MORITZ, Circuit Judges. _________________________________
The district court determined that Calvin Johnson’s civil rights claims were
frivolous and dismissed his pro se complaint under 28 U.S.C. § 1915(e)(2)(B)(i). He
appeals the district court’s judgment. Exercising jurisdiction under 28 U.S.C.
§ 1291, we reverse and remand for further proceedings consistent with this order and
judgment.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Background
Mr. Johnson is a state prisoner in Colorado. He filed a complaint under 42 U.S.C.
§ 1983 alleging three claims related to money that was taken from his inmate bank
account. He alleged that, in violation of a Colorado Department of Corrections (CDOC)
administrative regulation—and without due process—$3.82 was withheld from his
account on November 1, 2016, and another $1.41 was withheld from his account on
February 3, 2017. The CDOC regulation that Mr. Johnson cited, AR-200-15, sets forth
procedures for collecting from prisoners’ bank accounts certain debts such as
court-ordered fines and fees, court filing fees, restitution, child support, and balances
owing from disciplinary convictions. A minimum of 20% of all deposits into a prisoner’s
account is withheld to pay these outstanding debts. See AR-200-15(IV). But the
regulation also provides that some accounts may be exempt from withholding. Id.
AR-200-15(IV)(A)(8).1 Mr. Johnson alleged that he is eligible for this exemption
because his inmate pay never exceeds the minimum amount of $7.36 per month, he never
1 This exemption provision states:
If an offender has not had a deposit in the 30 days prior to inmate pay, and if inmate pay is $.32 daily (Grade 1), then the total daily pay of $.32 ($7.36 maximum, per month) may be exempt from withholding. To meet this exemption, the offender’s available account balance which is not being held as reserved or encumbered monies, cannot exceed $10.00 during the 30 days prior to receiving unassigned inmate pay. Any inmate pay that exceeds $7.36, per month, and any other deposits will be subject to the mandatory withholding of at least 20 percent.
2 receives money from any other source, and his monthly account balance did not exceed
$10.00.
Mr. Johnson named one defendant, Tonya Whitney, whom he identified as a
supervisor in the Inmate Banking Office. Claim One alleged that, in responding to his
step-two grievance regarding the withholding of $3.82 from his account, Ms. Whitney
refused to return the funds. Claim Three alleged that Ms. Whitney falsely interpreted
AR-200-15 by adding two months of his inmate pay together, bringing his balance above
$10.00 and making him ineligible for the exemption from withholding. As a result, an
additional $1.41 was withheld from his account. Mr. Johnson alleged that the CDOC
regulation had not previously been interpreted in this manner. Claim Two alleged that
Ms. Whitney applied her false interpretation of AR-200-15 after reviewing and in
retaliation for Mr. Johnson’s grievance regarding the previous withholding of $3.82. In
that earlier grievance, he had maintained that, if the funds were credited to his account,
they should not be added to his inmate pay for the current month to bring his account
balance above $10.00 and take away his exemption from withholding. Mr. Johnson
sought actual and punitive damages and an injunction preventing AR-200-15 from being
changed or misinterpreted.
On screening, the district court dismissed Mr. Johnson’s complaint as frivolous
under § 1915(e)(2)(B)(i). Addressing Claims One and Three, which the court construed
as alleging procedural-due-process violations, it first considered whether Mr. Johnson
had a property interest in his prison bank account that had been interfered with by the
state. Citing Cosco v. Uphoff, in which we held that the question is “whether the prison
3 condition complained of presents the type of atypical, significant deprivation in which a
State might conceivably create a liberty or property interest,” 195 F.3d 1221, 1224
(10th Cir. 1999) (brackets and internal quotation marks omitted), the district court held it
was “not persuaded that withholding a percentage of the inmate pay deposited into
Mr. Johnson’s inmate account to pay fees including court filing fees rises to the level of
an atypical and significant hardship in relation to the ordinary incidents of prison life,”
R. at 22.
The district court continued its analysis, stating that even if the alleged facts
implicated a protected property interest, Mr. Johnson’s due-process claims still lacked
merit because he alleged random and unauthorized acts in violation of a prison policy,
but he failed to plead that his state post-deprivation remedy is inadequate. The court held
that the CDOC grievance procedure, which defines “remedy” to include restoration of
property, provides a meaningful remedy for Mr. Johnson’s claims even if he did not
obtain the relief he sought. In addition, the court held that he also failed to plead that he
lacked an adequate remedy in state court.
Turning to Mr. Johnson’s retaliation claim, the court noted that prison officials
cannot retaliate against an inmate for exercising his constitutional rights. But it
concluded that Mr. Johnson’s claim failed because he did not plead that the defendant’s
actions caused him to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in a constitutionally protected activity. See Gee v. Pacheco,
627 F.3d 1178, 1189 (10th Cir. 2010). The district court held that, considered
4 objectively, withholding $1.41 from the inmate pay deposited in Mr. Johnson’s account
was not sufficiently chilling.
The district court dismissed Mr. Johnson’s complaint with prejudice. It did not
grant him leave to amend or determine that amendment would be futile.
II. Discussion
“We generally review a district court’s dismissal for frivolousness under § 1915
for abuse of discretion. However, 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) (citation omitted). “A district court may deem an in forma
pauperis complaint frivolous only if it lacks an arguable basis either in law or in fact.”
Id. (internal quotation marks omitted). “In other words, dismissal is only appropriate for
a claim based on an indisputably meritless legal theory and the frivolousness
determination cannot serve as a factfinding process for the resolution of disputed facts.”
Id. (internal quotation marks omitted). Because Mr. Johnson proceeds pro se, we
liberally construe his complaint and his appellate brief. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
A. Due-Process Claims
In dismissing Mr. Johnson’s due-process claims, the district court based its
frivolousness determination on two grounds: (1) failure to plead an atypical and
significant hardship in relation to the ordinary incidents of prison life, and (2) failure to
plead that his state post-deprivation remedy is inadequate. We hold that the district court
erred by dismissing Mr. Johnson’s claims on the first ground and by dismissing his
5 claims on the second ground without considering whether it would be futile for him to
amend his complaint.
1. Failure to Plead a Protected Property Interest
This court applies the Supreme Court’s analysis in Sandin v. Connor, 515 U.S.
472 (1995), to determine whether a prisoner has a property interest giving rise to a right
to due process. See Cosco, 195 F.3d at 1223-24. In Sandin, 515 U.S. at 480-84, the
Court rejected its previous practice of discerning liberty interests based on mandatory
language in prison regulations. Instead, the Court “recognize[d] that States may under
certain circumstances create liberty interests which are protected by the Due Process
Clause. But these interests will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Id. at 483-84 (citations omitted).
The Supreme Court held that the loss of liberty at issue in Sandin—30 days in
disciplinary segregation—did not “present the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest.” Id. at 486. The Court
considered the evidence as to what was atypical and significant in the prisoner’s
environment, comparing the conditions in disciplinary segregation to those in
administrative segregation and protective custody and concluding there were no
significant differences in duration or degree of restriction. Id. The Court noted further
that the conditions at the prison in question involved significant amounts of lockdown
6 time even for inmates in the general population. Thus, “[b]ased on a comparison between
inmates inside and outside disciplinary segregation, the State’s actions in placing him
there for 30 days did not work a major disruption in his environment.” Id.
This court has extended the Sandin analysis to due-process claims based on
property interests, but we have little case law applying Sandin in this context. In Cosco,
we held that a prison regulation regarding the type and quantity of personal property that
prisoners could keep in their cells was “typical of the kinds of prison conditions that the
Court has declared to be subject to the [Sandin] analysis.” 195 F.3d at 1224. We
concluded that new regulations limiting the property permitted in cells did not present an
atypical and significant deprivation of the prisoners’ existing privileges in which the state
might create a property interest. Id. at 1222, 1224.
We have also affirmed grants of qualified immunity in two cases involving
prisoners’ property-interest due-process claims. In Steffey v. Orman, 461 F.3d 1218,
1220-21 (10th Cir. 2006), we held that a prisoner had no protected property right in
receiving a contraband money order in violation of prison policy. We based our
conclusion on case law demonstrating that the seizure and forfeiture of contraband is “a
typical incident of prison life, and is not a significant property interest deprivation.” Id.
at 1223. We therefore affirmed summary judgment based on qualified immunity because
there was no constitutional violation. Id. at 1223. We took a different tack in Clark v.
Wilson, 625 F.3d 686, 691 (10th Cir. 2010), which raised the issue “whether freezing a
prison account in response to a garnishment summons imposes an atypical and significant
hardship on an inmate in relation to the ordinary incidents of prison life.” Noting that we
7 had not previously addressed that question, we declined to decide it in Clark; instead, we
affirmed summary judgment based on qualified immunity holding there was a lack of
clearly established law. Id. at 691-92.
Here, the district court held that Mr. Johnson’s due-process claims were frivolous
because withholding a percentage of his inmate wages to repay certain debts does not rise
to the level of an atypical and significant hardship in relation to the ordinary incidents of
prison life. We take no issue with that conclusion. Under AR-200-15, this is, in fact, an
ordinary incident of prison life for CDOC prisoners. A federal statute similarly requires
prisoners to make monthly payments equal to 20% of their income toward the payment of
filing fees incurred in civil cases in federal court. See 28 U.S.C. § 1915(b)(2).
But in reaching its holding, the district court appears to have misconstrued
Mr. Johnson’s due-process claims. He did not broadly challenge the application of
AR-200-15. He challenged only the withholding of a percentage of his inmate pay—
which is equal to a maximum of $7.36 per month—when he has no other source of
income and his account balance is less than $10.00. We note that the CDOC regulation
and § 1915 both exempt account balances under $10.00 from withholding under certain
circumstances. See § 1915(b)(2); AR-200-15(IV)(A)(8). We read Mr. Johnson’s claims
to assert that the alleged deprivation is both atypical in his prison environment and
significant in the context of the minimal pay he receives each month. We hold that the
district court abused its discretion in concluding that there was no arguable basis for
Mr. Johnson’s claim of a protected property interest. See Fogle v. Pierson, 435 F.3d
1252, 1259 (10th Cir. 2006) (noting, in reversing a frivolousness determination, the
8 importance of “carefully examining the conditions of the prisoner’s confinement”
(brackets and internal quotation marks omitted)).
2. Failure to Plead an Inadequate State Post-Deprivation Remedy
The district court held, alternatively, that Mr. Johnson’s due-process claims were
frivolous because he failed to plead that his state post-deprivation remedy was
inadequate. “[A]n unauthorized intentional deprivation of property by a state employee
does not constitute a [due-process] violation . . . if a meaningful postdeprivation remedy
for the loss is available,” and “the state’s action is not complete until and unless it
provides or refuses to provide a suitable postdeprivation remedy.” Hudson v. Palmer,
468 U.S. 517, 533 (1984). Under Hudson, a prisoner’s complaint must allege facts
sufficient to show the lack of an adequate state remedy. Durre v. Dempsey, 869 F.2d
543, 548 (10th Cir. 1989) (per curiam).
Mr. Johnson appears to argue that this element is not applicable to his due-process
claims because the constitutional violations he alleged were not random. We disagree.
Hudson held that a post-deprivation remedy does not satisfy due process “where the
property deprivation is effected pursuant to an established state procedure.” 468 U.S. at
534. Mr. Johnson alleged in his complaint that his inmate pay was withheld in violation
of, rather than according to, established procedure. Therefore, he must plead facts
showing that his state remedy was inadequate. He did not do so. Noting this deficiency,
the district court went on to hold that his due-process claims were frivolous because his
available state remedies, via a prison grievance and a state-court action, were adequate as
9 a matter of law. But our case law makes clear that a state-court action in Colorado may
be, but is not necessarily, an adequate post-deprivation remedy.
In Durre, we held that a prisoner failed to allege an inadequate state remedy.
869 F.2d at 547-48. In particular, Colorado has waived sovereign immunity for damages
claims resulting from the operation of a correctional facility. Id. at 547; see also
Colo. Rev. Stat. § 24-10-106(1)(b). The prisoner claimed that remedy was inadequate,
but we rejected his conclusory allegations of indigency, lack of counsel, and
confinement. Durre, 869 F.2d at 547. Rather, we found that the prisoner could petition
the state court for a waiver of costs and expenses; he could proceed pro se, submit
pleadings, and conduct discovery by mail, and present testimony by deposition; and he
did not allege any attempt to retain counsel, nor is there a constitutional right to appointed
counsel in a civil case. Id.
In contrast, we recognized in Freeman v. Department of Corrections, that the
existence of a state-court remedy does not preclude a prisoner from pleading that the
remedy is nonetheless inadequate. 949 F.2d 360, 362 (10th Cir. 1991) (“The fact that
Colorado law permits a suit against a state correctional facility may create a presumption
of adequate due process and may stave off a facial attack, but it is not conclusive.”
(citation omitted)). The inmate in Freeman alleged that prison officials confiscated his
stereo and refused to return it; he filed grievances to no avail; he then filed a small claims
action and asked for a default judgment, but he received no response despite repeatedly
writing to the state court regarding the status of his case; and finally, prison officials
induced him to dismiss his small claims action by saying they would return his stereo, but
10 they never did. Id. at 361. We held that, in contrast to Durre, the prisoner “alleged
specific facts showing that the state procedure has been unresponsive and inadequate,”
and we concluded that “[i]f in fact the state remedy was constitutionally insufficient, the
appellant may have a cause of action under section 1983 for the confiscation of his
property.” Id. at 362.2
The district court neither granted Mr. Johnson leave to amend his complaint nor
considered whether the defects in it could be cured by amendment. Cf. Gee v. Pacheco,
627 F.3d 1178, 1182, 1195 (10th Cir. 2010) (“[D]ismissal 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.”
(internal quotation marks omitted)). In light of Freeman, this was an abuse of discretion.
We therefore reverse the district court’s dismissal of Mr. Johnson’s due-process claims
and direct the court to consider futility of amendment in the first instance on remand. If
amendment would not be futile, the court should give Mr. Johnson an opportunity to
amend his complaint to include facts showing that his state remedy is inadequate.3
2 The district court also held that the CDOC prison grievance process provided Mr. Johnson an adequate state remedy as a matter of law. But we held in Freeman that the prisoner sufficiently pled an inadequate state remedy even though he had initially pursued a grievance. 949 F.2d at 361. In any event, our reasoning in Freeman—that a remedy may be, but is not necessarily adequate—applies as well to the grievance process available to Mr. Johnson. 3 To the extent there may be other shortcomings in Mr. Johnson’s due-process allegations that could be remedied by amendment, we trust that the district court “will explain the pleading’s deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint.” Gee, 627 F.3d at 1186. Under our case (continued) 11 B. Retaliation Claim
Mr. Johnson alleged that Ms. Whitney withheld the additional $1.41 from his
inmate pay in retaliation for his filing a grievance challenging the earlier withholding of
$3.82. “It is well-settled that prison officials may not retaliate against or harass an inmate
because of the inmate’s exercise of his right of access to the courts.” Gee, 627 F.3d at
1189 (brackets and internal quotation marks omitted). The elements of a retaliation claim
are: (1) the plaintiff engaged in constitutionally protected activity; (2) the defendant
responded by causing an injury that “would chill a person of ordinary firmness from
continuing to engage in that activity,” and (3) the defendant’s action was substantially
motivated as a response to the plaintiff’s protected activity. Id. (internal quotation marks
omitted). Mr. Johnson’s filing of a grievance qualifies as protected activity under the
first element. See id. The district court dismissed his retaliation claim as frivolous,
holding that the injury he alleged—withholding of $1.41 from his inmate pay—did not
satisfy the second element because it would not chill a person of ordinary firmness from
engaging in constitutionally protected activity.
law, for example, Mr. Johnson cannot allege a defendant’s personal involvement based solely on her role as a supervisor or on her denial of a grievance, by itself. See Cox v. Glanz, 800 F.3d 1231, 1248 & n.9 (10th Cir. 2015); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
12 Whether an injury is sufficient to chill the exercise of a protected right is an
objective inquiry. Thus, the question is not whether the injury has, in fact, dissuaded
Mr. Johnson from pursuing a grievance. See Smith v. Plati, 258 F.3d 1167, 1177
(10th Cir. 2001).
Because it would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity, . . . the proper inquiry asks whether an official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities. Id. (internal quotation marks omitted). A trivial or de minimus injury, however, is not
sufficient to support a retaliation claim. Eaton v. Meneley, 379 F.3d 949, 954-55
(10th Cir. 2004).
Mr. Johnson contends that he alleged a sufficiently chilling injury. He asserts that
he needs to use his small income—a maximum of $7.36 per month—to purchase
necessities such as additional food and clothing, neither of which, he claims, is
sufficiently provided by the prison. Aplt. Opening Br. at 3 (stating that “in practical
application you need more than what the prison staff provide”). Mr. Johnson maintains
that taking 20% or more of his limited income is therefore significant, and that small
amounts can add up to a lot if the prison regulation exempting his account from
withholding is violated over and over.
When considered in the context of prison and the wages that inmates earn, we are
not convinced that Mr. Johnson’s alleged injury is, as a matter of law, not sufficiently
chilling to dissuade a person of ordinary firmness from pursuing a grievance. Although
not controlling, we are persuaded by our holding in an unpublished decision, Mallard v.
13 Tomlinson, 206 F. App’x 732 (10th Cir. 2006). In Mallard, a prisoner alleged that, in
retaliation for filing an administrative grievance, he was transferred to a different prison
job, resulting in a wage reduction of ten cents per hour. Id. at 735. We held that “a cut in
wages of this type is an injury that would chill a person of ordinary firmness’ will to file
future grievances.” Id. at 737. Thus, while a $1.41 loss would likely be de minimus in
other contexts, it is not trivial when considered in a prison setting.
Mr. Johnson also must plead that Ms. Whitney’s action was substantially
motivated as a response to his protected activity. He alleged Ms. Whitney had reviewed
his grievance regarding the withholding of $3.82, which gave her the idea to purposely
misinterpret the CDOC regulation to take away his exemption from withholding.
Mr. Johnson alleged that his previous grievance stated that, if the $3.82 was returned to
his account, it should not be added to his inmate pay for the current month to bring his
account balance above $10.00. We conclude that Mr. Johnson has pled sufficient facts to
connect Ms. Whitney’s alleged retaliation to his filing of the previous grievance. “The
allegations may be improbable, but they are not implausible.” Gee, 627 F.3d at 1189.
We reverse the district court’s dismissal of Mr. Johnson’s retaliation claim.
III. Conclusion
The district court’s judgment is reversed and this case is remanded for further
consideration consistent with this order and judgment. Mr. Johnson’s “Motion for the
Court to Issue Order of Preliminary Injunction for the Things Listed Below” is denied.
14 Mr. Johnson’s motion to proceed on appeal without prepayment of fees and costs is
granted.
Entered for the Court
Jerome A. Holmes Circuit Judge