Lusero v. Welt

223 F. App'x 780
Court of Appeals for the Tenth Circuit·Decided March 27, 2007·No. No. 06-1395·Published·Cited by 2 cases

Opinion

ORDER AND JUDGMENT*

MICHAEL W. McCONNELL, Circuit Judge.

In an action brought under 42 U.S.C. § 1983, Plaintiff Loren R. Lusero, a Colorado prisoner proceeding pro se, alleges that prison officials violated his rights under the Eighth and Fourteenth Amendments by placing him in administrative segregation after he informed them that another prisoner had threatened and attacked him. The district court dismissed the action, finding Mr. Lusero’s claims Iegaily frivolous. We affirm in part and reverse in part.

BACKGROUND

In August 2006, Mr. Lusero filed an amended complaint under 42 U.S.C. § 1983 alleging that various prison officials violated his due process and equal protection rights and inflicted cruel and unusual punishment by placing him in administrative segregation following his request for protection from another inmate who allegedly threatened and assaulted him.1 After granting Mr. Lusero leave to proceed in forma pauperis, the district court found his claims legally frivolous and dismissed his complaint under 28 U.S.C. § 1915(e)(2)(B).

Addressing Mr. Lusero’s due process claim, the district court held that the “Constitution does not entitle [Mr. Lusero] to any procedural protection either before or after he was placed in administrative segregation because he does not have a protected liberty interest in his classification or placement.” R. Vol. I, Doc. 18, at 4. The court recognized that prison conditions can implicate a protected liberty interest if they create an “ ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,’ ” but found that Mr. Lusero failed to allege any such conditions in his case. Id. (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 [782] (1995)). The court also found “no indication that Mr. Lusero’s placement in administrative segregation inevitably will affect the length of his confinement.” R. Vol. I, Doc. 18, at 4.

The district court also found frivolous Mr. Lusero’s claim that his placement in administrative segregation subjects him to cruel and unusual punishment. The court noted that: (1) a prisoner must demonstrate “ ‘extreme deprivations ... to make out a conditions-of-confinement claim,’ ” id. at 5 (quoting Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)); (2) that “[i]n the absence ‘of a specific deprivation of a human need, an Eighth Amendment claim based on prison conditions must fail,’ ” id. (quoting Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994)); and (3) that a prisoner must show “Defendants acted with deliberate indifference,” that is, that the prison official “ ‘knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it,’ ” id. (quoting Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Finding that Mr. Lusero failed to allege that the Defendants had knowledge of a risk of serious harm, the court dismissed his Eighth Amendment claim.

As to Mr. Lusero’s equal protection claim, the court noted that it “ ‘need accept as true only the plaintiffs well-pleaded factual contentions, not his eonclusory allegations.’ ” Id. at 6 (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). The court found that Mr. Lusero’s equal protection claim consisted only of “vague and eonclusory allegations,” id., void of any factual support, and therefore dismissed it.

DISCUSSION

As with his complaint, Mr. Lusero’s filing before this Court is not a model of clarity. Because he proceeds pro se, however, we construe his claims and allegations liberally.2 Hunt v. Uphoff, 199 F.3d 1220, 1223 (10th Cir.1999); Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.1998). We review the district court’s conclusions of law de novo. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.2006).

We turn first to Mr. Lusero’s due process claims. The necessary predicate to a due process claim is a deprivation of a protected interest. In general, “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Such confinement therefore does not typically implicate a protected liberty interest. In Sandin v. Conner, however, the Supreme Court held that administrative segregation may implicate a liberty interest protected by the Due Process Clause if it “imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” 515 U.S. at 484, 115 S.Ct. 2293 or if it inevitably increases the duration of the sentence imposed. Id. at 487, 115 S.Ct. 2293; Wilson v. Jones, 430 F.3d 1113, 1120-21 (10th Cir.2005). The district court dismissed Mr. Lusero’s due process claim on the ground that his segregation satisfied neither of these standards.

Turning first to the issue of whether Mr. Lusero alleged that his segregation imposed an atypical and significant hardship, we believe that he did allege that the length of his segregation imposed such a [783] hardship. In his initial complaint, Mr. Lusero averred that he has been in administrative segregation since November 23, 2005, R. Vol. I, Doc. 3, at 3, and argued that “the magnitude of plaintiffs deprivation of his liberty from the general prison population is clearly [a] wrong protected by the [D]ue [PJrocess [CJlause,” id. at 6(A). And in his “Amended Complaint,” Mr. Lusero stated that “there was no purpose for indeterminate segregation from the general prison population.” Id., Doc. 14, at 7-8 (emphasis added). He also argued that “defendants!’] ‘deliberate negligence’ helped contribute to illegal continued segregation that should have been ‘temporary’ that maliciously got turned into ‘punitive segregation.’ ” Id. at 10 (emphasis added). We construe these statements as allegations that he has been in indefinite or indeterminate segregation since November, 2005, when a typical segregation in his circumstances would have been only temporary.

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