Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TERRANCE J. KELLY,
Plaintiff - Appellant
v. No. 24-3019 (D.C. No. 5:23-CV-03142-JWL) DAN SCHNURR; FRED C. EARLY; (D. Kan.) JOHN C. CANNON; BRETT SISSELL; JARRIS PERKINS; DUSTIN M. RANDOLPH; ANDREW C. FUOSS; ELIZABETH A. ALLEN; DEVIN S. CARPENTER; MISTY KROEKER; ALLYSON J. AGNEW,
Defendants - Appellees _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________
Terrance J. Kelly, a prisoner in the custody of the Kansas Department of
Corrections (“KDOC”), appeals the district court’s dismissal of his pro se civil rights
* After examining the brief 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 2
complaint for failure to state a claim for relief. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On June 9, 2023, Mr. Kelly filed a complaint under 42 U.S.C. § 1983 against
multiple KDOC officials asserting violations of the Eighth Amendment guarantee
against cruel and unusual punishment, the Fourteenth Amendment right to due
process, and the Fifth Amendment right to equal protection. He alleged that over the
course of his twenty-nine years in state custody, prison officials repeatedly placed
him “in supermax custody under fraudulent, unsubstantiated and false reports written
by staff containing libelous information and resulting slanderous remarks towards
[him].” R. at 6. He stated that each time he filed grievances about his placement, he
was released until the next time. He further stated he was not currently in
administrative segregation or on supermax status. He sought damages, declaratory
relief, and injunctive relief.
Screening the complaint pursuant to 28 U.S.C. § 1915A(a), the district court
identified numerous problems with Mr. Kelly’s claims:
the two-year statute of limitations for § 1983 claims brought in Kansas
appeared to bar the bulk of the claims;
there is no constitutional due process right to a choice of prison housing;
Mr. Kelly’s Eighth Amendment claim was subject to dismissal because he
failed to allege sufficiently serious conditions and had advanced only
2 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 3
“conclusory allegations that any defendant’s actions were taken in bad faith
and for no legitimate reasons,” R. at 161;
his equal protection claim failed because he either (1) did not demonstrate that
he was similarly situated to inmates in the general population and that any
difference in treatment was not reasonably related to legitimate penological
interests or (2) failed to allege he was treated differently than other inmates in
administrative segregation; and
he failed to allege the personal participation of any defendant.
Based on these shortcomings, the district court ordered Mr. Kelly to show
good cause why the court should not dismiss his complaint.
Mr. Kelly filed a response, a motion for an evidentiary hearing, and a demand
for a jury trial. He clarified that his claims arose from being placed in administrative
segregation on June 24, 2019, and that after he filed a grievance about that
placement, two of the defendants retaliated against him by filing allegedly false
disciplinary reports in June 2020 and March 2021.
As to the limitations problem, he argued that a state habeas action about that
placement he filed in 2019 rendered timely his June 2023 § 1983 complaint. The
district court construed this as a tolling argument and rejected it, explaining that time
spent exhausting state-court remedies tolls the federal habeas statute of limitations
but not § 1983’s statute of limitations. Mr. Kelly also contended that his complaint
was timely under the continuing violation doctrine. The district court assumed the
doctrine could apply to § 1983 claims but concluded it did not apply to Mr. Kelly’s 3 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 4
claims because all of the relevant events—his release from administrative segregation
in June 2019 and the June 2020 and March 2021 disciplinary reports—occurred more
than two years before he filed his complaint.
Regarding his equal protection claim, Mr. Kelly explained that he was
similarly situated to general population inmates and was placed in administrative
segregation without reason and without any disciplinary reports. The district court
found this insufficient to cure the defects in the complaint.
Mr. Kelly also asserted his due process rights were violated when he was
assessed a new “gang-point” validation in 2021, which added six points to his
classification status, without any evidence or proper investigation. R. at 171. The
district court concluded this assertion did not state a valid Fourteenth Amendment
due process claim because Kansas law does not create a liberty interest in an inmate’s
security classification.
Based on this analysis and the reasons set out in the show-cause order, the
district court dismissed Mr. Kelly’s complaint for failure to state a claim for relief
and denied his motion for an evidentiary hearing. The court issued a separate
judgment dismissing the case. The court did not address his demand for a jury trial.
Mr. Kelly filed a post-judgment motion, arguing he had in fact stated a claim
for relief. The district court denied the motion because Mr. Kelly’s argument was
wholly conclusory.
Mr. Kelly appeals.
4 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 5
II. DISCUSSION
A. Standard of review
We review de novo a district court’s decision to dismiss a prisoner complaint
pursuant to § 1915A(b)(1) for failure to state a claim. Young v. Davis, 554 F.3d
1254, 1256 (10th Cir. 2009). “We must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most favorable to the plaintiff.”
Id. (internal quotation marks omitted). Because Mr. Kelly is pro se, we construe his
pleadings liberally, but we may not act as his advocate. See Yang v. Archuleta,
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Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TERRANCE J. KELLY,
Plaintiff - Appellant
v. No. 24-3019 (D.C. No. 5:23-CV-03142-JWL) DAN SCHNURR; FRED C. EARLY; (D. Kan.) JOHN C. CANNON; BRETT SISSELL; JARRIS PERKINS; DUSTIN M. RANDOLPH; ANDREW C. FUOSS; ELIZABETH A. ALLEN; DEVIN S. CARPENTER; MISTY KROEKER; ALLYSON J. AGNEW,
Defendants - Appellees _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________
Terrance J. Kelly, a prisoner in the custody of the Kansas Department of
Corrections (“KDOC”), appeals the district court’s dismissal of his pro se civil rights
* After examining the brief 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. Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 2
complaint for failure to state a claim for relief. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On June 9, 2023, Mr. Kelly filed a complaint under 42 U.S.C. § 1983 against
multiple KDOC officials asserting violations of the Eighth Amendment guarantee
against cruel and unusual punishment, the Fourteenth Amendment right to due
process, and the Fifth Amendment right to equal protection. He alleged that over the
course of his twenty-nine years in state custody, prison officials repeatedly placed
him “in supermax custody under fraudulent, unsubstantiated and false reports written
by staff containing libelous information and resulting slanderous remarks towards
[him].” R. at 6. He stated that each time he filed grievances about his placement, he
was released until the next time. He further stated he was not currently in
administrative segregation or on supermax status. He sought damages, declaratory
relief, and injunctive relief.
Screening the complaint pursuant to 28 U.S.C. § 1915A(a), the district court
identified numerous problems with Mr. Kelly’s claims:
the two-year statute of limitations for § 1983 claims brought in Kansas
appeared to bar the bulk of the claims;
there is no constitutional due process right to a choice of prison housing;
Mr. Kelly’s Eighth Amendment claim was subject to dismissal because he
failed to allege sufficiently serious conditions and had advanced only
2 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 3
“conclusory allegations that any defendant’s actions were taken in bad faith
and for no legitimate reasons,” R. at 161;
his equal protection claim failed because he either (1) did not demonstrate that
he was similarly situated to inmates in the general population and that any
difference in treatment was not reasonably related to legitimate penological
interests or (2) failed to allege he was treated differently than other inmates in
administrative segregation; and
he failed to allege the personal participation of any defendant.
Based on these shortcomings, the district court ordered Mr. Kelly to show
good cause why the court should not dismiss his complaint.
Mr. Kelly filed a response, a motion for an evidentiary hearing, and a demand
for a jury trial. He clarified that his claims arose from being placed in administrative
segregation on June 24, 2019, and that after he filed a grievance about that
placement, two of the defendants retaliated against him by filing allegedly false
disciplinary reports in June 2020 and March 2021.
As to the limitations problem, he argued that a state habeas action about that
placement he filed in 2019 rendered timely his June 2023 § 1983 complaint. The
district court construed this as a tolling argument and rejected it, explaining that time
spent exhausting state-court remedies tolls the federal habeas statute of limitations
but not § 1983’s statute of limitations. Mr. Kelly also contended that his complaint
was timely under the continuing violation doctrine. The district court assumed the
doctrine could apply to § 1983 claims but concluded it did not apply to Mr. Kelly’s 3 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 4
claims because all of the relevant events—his release from administrative segregation
in June 2019 and the June 2020 and March 2021 disciplinary reports—occurred more
than two years before he filed his complaint.
Regarding his equal protection claim, Mr. Kelly explained that he was
similarly situated to general population inmates and was placed in administrative
segregation without reason and without any disciplinary reports. The district court
found this insufficient to cure the defects in the complaint.
Mr. Kelly also asserted his due process rights were violated when he was
assessed a new “gang-point” validation in 2021, which added six points to his
classification status, without any evidence or proper investigation. R. at 171. The
district court concluded this assertion did not state a valid Fourteenth Amendment
due process claim because Kansas law does not create a liberty interest in an inmate’s
security classification.
Based on this analysis and the reasons set out in the show-cause order, the
district court dismissed Mr. Kelly’s complaint for failure to state a claim for relief
and denied his motion for an evidentiary hearing. The court issued a separate
judgment dismissing the case. The court did not address his demand for a jury trial.
Mr. Kelly filed a post-judgment motion, arguing he had in fact stated a claim
for relief. The district court denied the motion because Mr. Kelly’s argument was
wholly conclusory.
Mr. Kelly appeals.
4 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 5
II. DISCUSSION
A. Standard of review
We review de novo a district court’s decision to dismiss a prisoner complaint
pursuant to § 1915A(b)(1) for failure to state a claim. Young v. Davis, 554 F.3d
1254, 1256 (10th Cir. 2009). “We must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most favorable to the plaintiff.”
Id. (internal quotation marks omitted). Because Mr. Kelly is pro se, we construe his
pleadings liberally, but we may not act as his advocate. See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
B. Mr. Kelly’s claims are untimely
We conclude that all of Mr. Kelly’s claims are barred by the relevant statute of
limitations. State statutes of limitations applicable to general personal injury claims
supply the limitations periods for § 1983 claims. See Garcia v. Wilson, 731 F.2d
640, 651 (10th Cir. 1984) (en banc). Kansas’s statute of limitations for personal
injury claims, Kan. Stat. Ann. § 60-513(a)(4), is two years. Federal law governs the
question of accrual of a § 1983 claim. Smith v. City of Enid, 149 F.3d 1151, 1154
(10th Cir. 1998). Section 1983 “claims accrue when the plaintiff knows or should
know that his or her constitutional rights have been violated.” Id. (internal quotation
marks omitted).
Mr. Kelly admits that his 2019 placement in administrative segregation was
“the last installment” in a long series of allegedly improper placements. Aplt.
Opening Br. at 2. However, he did not file his complaint until almost four years
5 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 6
later, well beyond the two-year limitations period. To avoid this result, Mr. Kelly
contends that the “gang point stigma” cast upon him shows a continuing wrong,
which he characterizes as “the continual attack on [his] character.” Id. We are not
persuaded.
We may assume the continuing violation doctrine is applicable to § 1983
claims. See Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (making such
an assumption for purposes of argument). Under that doctrine, “where a tort involves
a continuing or repeated injury, the cause of action accrues at, and limitations begin
to run from, the date of the last injury.” Tiberi v. CIGNA Corp., 89 F.3d 1423, 1430
(10th Cir. 1996) (internal quotation marks omitted). “In other words, the statute of
limitations does not begin to run until the wrong is over and done with.” Id.
at 1430–31 (internal quotation marks omitted). But “the doctrine cannot be
employed where the plaintiff’s injury is definite and discoverable, and nothing
prevented the plaintiff from coming forward to seek redress.” Id. at 1431 (internal
quotation marks omitted).
Mr. Kelly’s allegations reveal that he sustained a definite and discoverable
injury from his 2019 placement in administrative segregation and the 2020 and 2021
disciplinary reports, and he does not argue that anything kept him from seeking
redress for those actions within the limitations period. Mr. Kelly argues that any
continuing stigma or attack on his character from the validation is sufficient to render
his complaint timely under the continuing violation doctrine. This argument fails
because “the doctrine is triggered by continual unlawful acts, not by continual ill
6 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 7
effects from the original violation,” Mata, 635 F.3d at 1253 (emphasis added)
(internal quotation marks omitted). Because Mr. Kelly’s claims are time barred, we
need not address his arguments contesting the district court’s analysis of the
substance of those claims.1
C. Denial of evidentiary hearing; failure to address jury demand
Mr. Kelly faults the district court for denying his motion for an evidentiary
hearing and disregarding his demand for a jury trial. We see no error. As the district
court explained, Mr. Kelly premised his motion for an evidentiary hearing on case
law concerning the right to an evidentiary hearing on a motion filed by a criminal
defendant under 28 U.S.C. § 2255. Mr. Kelly, however, proceeded under § 1983, and
his allegations failed to state a claim for relief. The district court, therefore, properly
dismissed his action without holding an evidentiary hearing or addressing his jury
demand.
1 We note one possible exception to our conclusion that we need not address any of Mr. Kelly’s arguments going to the merits of his claims. It is unclear from the record when in 2021 the gang-point validation occurred. If it was more than two years before he filed his complaint (i.e., before June 9, 2021), any free-standing due process claim based on the gang-point validation would be untimely. If was less than two years before he filed his complaint, the district court properly dismissed the claim for failure to state a claim for relief. “A due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). Mr. Kelly’s gang-point validation claim does not implicate any property interest, and “Kansas law does not create a liberty interest regarding a prison inmate’s security classification,” Lile v. Simmons, 929 P.2d 171, 173 (Kan. App. 1996). 7 Appellate Case: 24-3019 Document: 27-1 Date Filed: 09/19/2024 Page: 8
III. CONCLUSION
We affirm the district court’s judgment. We deny Mr. Kelly’s motion to
proceed on appeal without prepayment of costs or fees (“IFP”). To obtain permission
to proceed IFP, Mr. Kelly had to show that he was “unable to pay” the fees.
28 U.S.C. § 1915(a)(1). The copy of his inmate trust fund account he filed with his
motion on April 15, 2024, shows that as of April 4, 2024, he had an available balance
of $3381.87 and no monthly expenses. Based on those figures, we find Mr. Kelly
was not “unable to pay” the $605 filing and docketing fee. Consequently, he is
obligated to immediately pay the entire filing fee. See § 1915(a)(2) (excusing only
“prepayment of fees”); § 1915(b)(1) (“Notwithstanding subsection (a), if a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of a filing fee.”).
Entered for the Court
Gregory A. Phillips Circuit Judge