Sperry v. Wildermuth

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 30, 2022
• Docket: 21-3009
• Status: Unpublished

Opinion

Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 30, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JEFFREY J. SPERRY,

Plaintiff - Appellant,

v. No. 21-3009 (D.C. No. 5:16-CV-03222-SAC) LINDSEY WILDERMUTH; (D. Kan.) ANDREW LUCHT; CHRISTOPHER ROSS; KEVIN BOSCH; (FNU) HUNT; COLLETTE WINKLEBAUER; REX PRYOR; K. LEE; LARRY HOSHAW; DANIEL JACKSON; PHILLIP PATTERSON; ROBERT SAPIEN; HANNAH BOOTH; JAMES HEIMGARTNER; JOHNNIE GODDARD; DOUGLAS BURRIS; BILL SHIPMAN; RAYMOND ROBERTS; KANSAS DEPARTMENT OF CORRECTIONS,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, BACHARACH, and CARSON, Circuit Judges.

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 2

_________________________________

This appeal involves ten claims by a Kansas prisoner, Mr. Jeffrey

Sperry. In these claims, Mr. Sperry complains of placement and conditions

in administrative segregation, housing in a cell infested with roaches,

systematic deprivation of sleep, withholding of publications that had been

mailed, denial of access to a law library and legal assistance, seizure and

loss of personal property and legal materials, deprivation of fair hearings

in disciplinary matters, and shortcomings in the grievance system. The

defendants include the Kansas Department of Corrections and eighteen

prison employees.

The defendants moved, in the alternative, for dismissal or summary

judgment. The district court stated that it was granting “Defendants’

motion” but didn’t say which motion was being granted. We treat the

ruling as a dismissal and reverse the dismissal of Mr. Sperry’s claims

 against Lindsey Wildermuth and Andrew Lucht for retaliation through placement in administrative segregation and

 against K. Lee, Bill Shipman, Hannah Booth, and Robert Sapien for withholding of mail.

We affirm the dismissal of Mr. Sperry’s other claims.

I. Characterization of the Ruling and the Standard of Review

Because the defendants had moved alternatively for dismissal or

summary judgment, we must decide which motion was granted.

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Some of the court’s language suggests that the ruling constituted a

grant of summary judgment. For example, the court said that it was

deciding “the motion under the request for summary judgment contained

therein.” R. at 667. And in the conclusion, the court used the terminology

of summary judgment, granting “judgment as a matter of law” based on the

absence of a “genuine issue as to any material fact.” Id. at 691; see Fed. R.

Civ. P. 56(a) (stating that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law”).

But the court used other language suggesting dismissal for failure to

state a valid claim. See Fed. R. Civ. P. 12(b)(6). For example, the

disposition stated that “[t]his matter is dismissed for failure to state a

claim upon which relief can be granted.” R. at 691 (bolding omitted). And

when concluding each section, the court said that it was dismissing each

cause of action for failure to state a valid claim. 1

In their briefs, both parties treat the ruling as a dismissal for failure

to state a valid claim. 2 Given the ambiguity in the ruling, we accept the

1 On appeal, the defendants don’t present an alternative argument to affirm based on their summary-judgment motion. 2 Mr. Sperry’s characterization isn’t consistent. For example, in his notice of appeal, he treats the ruling as an “order of summary judgment.” R. at 693. In his appeal brief, however, he consistently refers to the ruling as one for dismissal for failure to state a valid claim. He also argues that if the defendants question the evidentiary support for any of the claims, they 3 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 4

parties’ characterization. We thus apply the standard used when the district

court dismisses an action for failure to state a valid claim.

That standard of review is de novo. Acosta v. Jani-King of Okla.,

Inc., 905 F.3d 1156, 1158 (10th Cir. 2018). Engaging in de novo review,

we credit the factual allegations in the complaint and view them favorably

to Mr. Sperry. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). But the

complaint must contain sufficient factual allegations to state a claim for

relief that is facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

II. Constitutional Claims

In the complaint, Mr. Sperry alleges many constitutional violations.

The district court dismissed each claim.

A. Placement in Administrative Segregation

Mr. Sperry was put in administrative segregation, leading to claims

involving violation of the First and Fourteenth Amendments. 3

1. First Amendment (Retaliation)

In asserting a violation of the First Amendment, Mr. Sperry alleges

retaliation for his exercise of constitutionally protected activity. The

can move for summary judgment after the completion of discovery. Appellant’s Opening Br. at 6–11. 3 In the complaint, Mr. Sperry also asserted that his placement in administrative segregation had violated the Eighth Amendment and 4 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 5

district court dismissed this claim, stating that Mr. Sperry had failed to

adequately plead facts showing each defendant’s substantial motivation to

retaliate for protected conduct. For most of the defendants, we agree. But

not for two prison employees (Lindsey Wildermuth and Andrew Lucht).

A retaliation claim bears three elements: (1) identification of

constitutionally protected activity, (2) conduct “that would chill a person

of ordinary firmness from continuing to engage in that activity,” and (3)

facts indicating that the conduct was intended to respond to the exercise of

protected activity. Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010).

The complaint contains allegations that would satisfy each element.

The first element involves protected activity. Mr. Sperry says that he

helped other inmates in their litigation, and the defendants point out that

such help isn’t constitutionally protected. Shaw v. Murphy, 532 U.S. 223,

231 (2001). But Mr. Sperry also claims that he brought his own civil suit,

which is constitutionally protected. Cohen v. Longshore, 621 F.3d 1311,

1317–18 (10th Cir. 2010); Trujillo v. Williams, 465 F.3d 1210, 1226–27

(10th Cir. 2006).

The second element is conduct that would inhibit continued pursuit

of Mr. Sperry’s civil case. In the complaint, Mr. Sperry alleged that Ms.

Fourteenth Amendment’s Equal Protection Clause. He does not reassert these claims here.

5 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 6

Wildermuth and Mr. Lucht had imposed administrative segregation, which

resulted in transfer to another prison with harsher conditions. A factfinder

could reasonably infer that the harsher conditions could chill a person of

ordinary firmness from continued pursuit of a civil case. Gee, 627 F.3d at

1189; Fogle v. Pierson, 435 F.3d 1252, 1263–64 (10th Cir. 2006).

The third element involves a retaliatory motive. The defendants

attribute placement in administrative segregation to a disciplinary

violation. But Mr. Sperry disagrees, attributing placement in administrative

segregation to retaliation. He alleges that Ms. Wildermuth and Mr. Lucht

monitored the civil suit, Ms. Wildermuth issued a disciplinary report

riddled with errors and refused to make corrections, and Ms. Wildermuth

blamed the mistakes on a department run by Mr. Lucht. From these

allegations, a factfinder could reasonably infer a retaliatory motive.

We thus conclude that Mr. Sperry adequately pleaded satisfaction of

each element as to Ms. Wildermuth and Mr. Lucht. But Mr. Sperry did not

plausibly allege the participation of any of the other defendants in the

retaliatory transfer to administrative segregation. 4 We thus reverse the

dismissal of this claim only as to Ms. Wildermuth and Mr. Lucht. 5

4 The other defendants on this claim are Raymond Roberts, Johnnie Goddard, Collette Winklebauer, Rex Pryor, Phillip Patterson, Larry Hoshaw, Daniel Jackson, and James Heimgartner. 5 Mr. Sperry also alleged a conspiracy and argues on appeal that this conspiracy included his placement in administrative segregation. 6 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 7

2. Fourteenth Amendment (Due Process)

Mr. Sperry also claims a denial of due process in violation of the

Fourteenth Amendment. The district court dismissed this claim, and we

agree with this ruling.

The Fourteenth Amendment requires due process only if the

defendant affected a liberty or property interest. Ky. Dep’t of Corr. v.

Thompson, 490 U.S. 454, 460 (1989). Mr. Sperry alleges a liberty interest

based on the state’s regulations governing placement in administrative

segregation.

But a liberty interest can arise from state regulations only when they

extend the duration of confinement or impose an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). The district court

properly concluded that Mr. Sperry had failed to allege facts showing that

the placement in administrative segregation extended his prison

confinement or constituted an “atypical and significant hardship” in

comparison to the typical terms of prison confinement. Id.

To determine whether the conditions were atypical and significant,

the court engages in a fact-intensive assessment, considering the totality of

Appellant’s Opening Br. at 5. But this argument consists only of a single sentence and is conclusory. We thus affirm the dismissal of the conspiracy claim related to the placement in administrative segregation. Cummings v. Dean, 913 F.3d 1227, 1235–36 (10th Cir. 2019). 7 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 8

the circumstances. Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012).

This assessment includes four factors:

1. the existence of a legitimate penological interest,

2. the extremity of the conditions,

3. the possible effect on the duration of confinement, and

4. the indeterminate nature of the placement.

Est. of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir.

2007).

On the first factor, Mr. Sperry pleaded a factual basis to question the

legitimacy of the penological interest, for he attributed his placement in

administrative segregation to petty retaliation.

On the second factor, Mr. Sperry alleged various losses of privileges:

 lockdown for 24 hours without human interaction,

 constant lighting in the cell,

 lack of visitation,

 limited access to outside recreation,

 limited shower access,

 lack of law-library access,

 lack of opportunities to participate in religious ceremonies,

 lack of access to publications,

 lack of mental-health programs,

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 inability to participate in work-release programs,

 cuffing and connection to a dog leash upon exit from the cell,

 inability to participate in fundraisers,

 inability to access his JPay account,

 inability to use his MP4 player, and

 limited ability to purchase items from the commissary.

R. at 152. We’ve regarded similar restrictions as typical and insignificant

in comparison to the ordinary incidents of prison life. Rezaq v. Nalley, 677

F.3d 1001, 1014–15 (10th Cir. 2012); see also Requena v. Roberts, 893

F.3d 1195, 1218 (10th Cir. 2018) (“[R]estrictions on an inmate’s telephone

use, property possession, visitation and recreation privileges are not

different in such degree and duration as compared with the ordinary

incidents of prison life.” (internal quotation marks omitted)). 6

On the third factor, placement in administrative segregation doesn’t

affect the duration of the sentence. Mr. Sperry complains that he couldn’t

participate in rehabilitation programs or in work release, which could have

hurt his chances to obtain parole at his 2020 hearing. But there’s little in

6 In non–precedential opinions, we have also concluded that similar conditions at this prison weren’t severe enough to create a liberty interest. Shields v. Cline, 829 F. App’x 321, 324 (10th Cir. 2020) (unpublished); Stallings v. Werholtz, 492 F. App’x 841, 845 (10th Cir. 2012) (unpublished). 9 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 10

the complaint to assess Mr. Sperry’s chance of getting parole even if he

could have participated in these programs.

On the fourth factor, Mr. Sperry doesn’t allege that he was to remain

in administrative segregation for an indefinite period.

Given the factors as a whole, we conclude that Mr. Sperry’s

“placement in administrative segregation . . . does not give rise to a liberty

interest.” Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996). Because no

liberty interest existed, the Fourteenth Amendment did not require due

process. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). So this

claim was properly dismissed.

B. Infestation of Roaches

Mr. Sperry also claims that his cell swarmed with roaches for

roughly 2 ½ months. This claim implicates the Eighth Amendment, which

is violated only if the prison official recognizes and “disregards an

excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S.

825, 837 (1994). 7

Mr. Sperry acknowledges in the complaint that he was told that the

defendants had an exterminator regularly spray for roaches. (He does not

7 In the complaint, Mr. Sperry alleged that at any one time, 3–20 roaches could be seen anywhere in the cell. Despite these allegations, the district court concluded that the alleged infestation was not serious enough to implicate the Eighth Amendment. We need not address this issue and express no opinion on the objective seriousness of the alleged infestation of roaches. 10 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 11

question the truthfulness of what was said.) Given the efforts to rid the cell

of roaches, Mr. Sperry has failed to allege a plausible basis to infer

conscious disregard to his health or safety. See Wishon v. Gammon, 978

F.2d 446, 449 (8th Cir. 1992) (upholding summary judgment for prison

officials based on evidence that they regularly sprayed the cells for pests).

C. Sleep Deprivation

Mr. Sperry also claims an Eighth Amendment violation from the

deprivation of sleep. The alleged sleep deprivation consisted of constant

lighting of every cell and wakening of every inmate throughout the night.

The district court dismissed this claim for two reasons: (1) Mr.

Sperry hadn’t alleged the participation of any of the defendants, and (2)

the sleep interruptions hadn’t deprived Mr. Sperry of the minimal measures

of life’s necessities.

Even if we were to reject the second reason, Mr. Sperry hasn’t

questioned the first reason for dismissal of this claim. By failing to

challenge that reason, Mr. Sperry waived his opportunity to show personal

participation of the defendants. See Moya v. Garcia, 895 F.3d 1229, 1233

(10th Cir. 2018) (stating that the plaintiff must allege facts showing how

each defendant “had been personally involved in the underlying violations

through their own participation or supervisory control”).

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D. Withholding of a Book, Magazines, and a Photograph

Prison authorities prevented mail delivery of a book, three

magazines, and a photograph. 8 Based on the inability to obtain these

materials, Mr. Sperry alleges violation of the First and Fourteenth

Amendments.

On this claim, the district court reasoned that prison authorities had a

legitimate penological objective to withhold the book, magazines, and

photograph. But the court ruled on a motion to dismiss, which limited the

universe of facts to those alleged in the amended complaint. See Part I,

above. 9 In the amended complaint, Mr. Sperry needed only to “plead facts

from which a plausible inference [could] be drawn that the action was not

reasonably related to a legitimate penological interest.” Gee v. Pacheco,

8 In the complaint, Mr. Sperry also alleged withholding of a second book (Full Blast by Janet Evanovich and Charlotte Hughes). But he acknowledged in district court that this incident had fallen outside the limitations period. 9 Prison officials relied on an investigative report (otherwise called a “Martinez report”) for their summary-judgment motion, but the district court ruled on the motion to dismiss rather than the motion for summary judgment. When ruling on a motion to dismiss for failure to state a valid claim, the court can consider investigative reports only if “the plaintiff challenges a prison’s policies or established procedures and the [investigative] report’s description of the policies or procedures remains undisputed after plaintiff has an opportunity to respond.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (quoting Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991)). As the defendants point out, Mr. Sperry hasn’t challenged the prison’s policies or procedures. Appellees’ Resp. Br. at 25. So we cannot consider the investigative report. 12 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 13

627 F.3d 1178, 1188 (10th Cir. 2010). Mr. Sperry’s allegations satisfied

this standard.

He alleges five facts:

1. Authorities seized a Us Weekly magazine because it contained an advertisement for drink recipes, but

 there’s no rule against possession of publications containing drink recipes and

 authorities allowed many other publications containing the same advertisement.

2. Authorities withheld an issue of Wired Magazine, stating that it posed a threat to the security of the facility. But Mr. Sperry’s family saw nothing in the magazine that could remotely threaten security.

3. Authorities seized a second issue of Wired Magazine , but never gave a reason for seizing it.

4. Authorities seized the book The Target and identified five pages as improper. These pages contained fictional discussions

 about the length of a prisoner’s incarceration,

 between two death-row inmates,

 about vetting of CIA agents, and

 about the selection of two CIA agents for a mission.

5. Authorities seized a photograph of a sexily dressed female, but it was not pornographic.

The amended complaint contained nothing to suggest a penological

objective to seize these materials. So the district court erred in dismissing

the First Amendment claim for withholding Mr. Sperry’s mail.

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The resulting issue is which defendants should remain on this claim.

Mr. Sperry alleged direct involvement by K. Lee, Bill Shipman, Hannah

Booth, and Robert Sapien. So these defendants should remain on this

claim. But Mr. Sperry also asserted this claim against Raymond Roberts,

Johnnie Goddard, Douglas Burris, Rex Pryor, James Heimgartner, and

Collette Winklebauer based on their failures to properly address

administrative appeals. Those alleged failures would not constitute

personal participation. See Gallagher v. Shelton, 587 F.3d 1063, 1069

(10th Cir. 2009) (stating that “a denial of a grievance, by itself without any

connection to the violation of constitutional rights alleged by plaintiff,

does not establish personal participation under [42 U.S.C.] § 1983”). So

the dismissals were correct for Mr. Roberts, Mr. Goddard, Mr. Burris, Mr.

Pryor, Mr. Heimgartner, and Ms. Winklebauer.

The district court also properly dismissed the Fourteenth Amendment

claim. The court reasoned that (1) Mr. Sperry could have the materials sent

elsewhere and (2) he had an adequate remedy in state court. On appeal, Mr.

Sperry does not say what was wrong with the reasoning on the Fourteenth

Amendment claim. We thus affirm the dismissal of this claim. See Nixon v.

City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (stating that

the appellant must “explain what was wrong with the reasoning that the

district court relied on in reaching its decision”); see also Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840–41 (10th Cir. 2005) (stating

14 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 15

that even unrepresented litigants must present an argument citing the

record and providing legal authority).

E. Denial of Access to a Law Library or Persons Trained in the Law

Mr. Sperry also alleges denial of court access from his inability to

use the law library or consult individuals trained in the law. 10 But these

denials would have crossed a constitutional line only if they had hindered

Mr. Sperry’s effort to litigate a nonfrivolous claim. Penrod v. Zavaras, 94

F.3d 1399, 1403 (10th Cir. 1996) (per curiam). The district court reasoned

that Mr. Sperry had failed to explain how better legal access would have

allowed him to pursue another claim.

He points to a state court’s rejection of his motion attacking a

criminal sentence. See Kan. Stat. Ann. § 60–1507. Under Kansas law,

however, this statute imposes a strict deadline and restricts the filing of

second or subsequent motions. Id. § 60–1507(c), (f). Based on these

restrictions, the Kansas Court of Appeals upheld the dismissal of his

motion as both untimely and successive. Sperry v. State, No. 112,143, 2016

WL 2942280 (Kan. Ct. App. 2016) (unpublished; per curiam).

10 In district court, Mr. Sperry also claimed that this denial of court access had constituted retaliation, deprivation of due process, and denial of equal protection. On appeal, however, Mr. Sperry doesn’t reassert these claims.

15 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 16

In reviewing the constitutional claim for denial of court access, the

district court reasoned that Mr. Sperry hadn’t said how better legal access

would have changed the outcome in state court. On appeal, Mr. Sperry

doesn’t address this reasoning. So we must affirm this ruling. See Nixon v.

City & Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (stating that

the appellant must “explain what was wrong with the reasoning that the

district court relied on in reaching its decision”); see also Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840–41 (10th Cir. 2005) (stating

that even unrepresented litigants must present an argument citing the

F. Seizure of Personal Property

The prison restricted every inmate’s personal belongings, stating that

they had to fit in two small boxes. Based on this restriction, the defendants

allegedly seized Mr. Sperry’s belongings, including his legal materials.

Based on these alleged seizures, Mr. Sperry claimed violations of the First

Amendment, the Fourteenth Amendment’s Due Process Clause, 11 a

conspiracy to violate these amendments, and violation of the Racketeering

Influenced and Corrupt Organizations Act.

11 In the complaint, Mr. Sperry also claimed a denial of the Fourteenth Amendment’s Equal Protection Clause. But on appeal, he doesn’t reassert this claim. 16 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 17

The district court didn’t address the First Amendment claim. We’d

ordinarily remand for consideration of this claim, see Tabor v. Hilti, Inc.,

703 F.3d 1206, 1227 (10th Cir. 2013), but a remand is unnecessary because

the claim was facially deficient, see Fogle v. Pierson, 435 F.3d 1252, 1262

As noted above, the First Amendment was violated if the seizure had

hindered Mr. Sperry’s effort to litigate a nonfrivolous claim. Penrod v.

Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per curiam). And on this

claim, Mr. Sperry referred only to the state appellate court’s rejection of

his motion attacking a criminal sentence. See Sperry v. State, No. 112,143,

2016 WL 2942280 (Kan. Ct. App. 2016) (unpublished; per curiam). But

again, Mr. Sperry hasn’t shown how the seized materials would have

helped him obtain a better outcome in that state-court appeal. We thus

reject Mr. Sperry’s reliance on the First Amendment. See Part II(E), above.

On the Fourteenth Amendment claim, the district court reasoned that

the defendants had supplied due process by allowing Mr. Sperry to tell

authorities where to send the seized items. Mr. Sperry doesn’t question this

reasoning, so we must affirm the ruling. See Nixon v. City & Cty. of

Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (stating that the appellant

must “explain what was wrong with the reasoning that the district court

relied on in reaching its decision”); see also Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840–41 (10th Cir. 2005) (stating that even

17 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 18

unrepresented litigants must present an argument citing the record and

providing legal authority).

On the claims involving conspiracy and violation of the Racketeering

Influenced and Corrupt Organizations Act, Mr. Sperry says only that the

seizure of his property “states a claim upon which relief could be had for

. . . conspiracy to violate his rights by targeting his legal files for suits

against [the Kansas Department of Corrections] and its agents, and RICO

under 18 U.S.C. § 1964.” Appellant’s Opening Br. at 9. 12

For a conspiracy claim, Mr. Sperry had to “allege specific facts

showing an agreement and concerted action amongst the defendants.”

Frasier v. Evans, 992 F.3d 1003, 1024 (10th Cir. 2021) (quoting Tonkovich

v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998)). The district

court regarded the conspiracy allegations as conclusory, and his appellate

argument is no more specific. The same is true of the claim involving

violation of the Racketeering Influenced and Corrupt Organizations Act.

We thus uphold the rulings on the claims involving a conspiracy and

violation of the Racketeering Influenced and Corrupt Organizations Act.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of

12 Mr. Sperry also pleaded conspiracy claims in connection with his other constitutional theories. But in his appeal brief, he refers to the conspiracy claim only in connection with his placement in administrative segregation and the seizure of his belongings. Appellant’s Opening Br. at 5, 9. 18 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 19

the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”); Khalik v. United Air Lines, 671 F.3d 1188,

1191 (10th Cir. 2012) (“[I]n examining a complaint under Rule 12(b)(6),

we will disregard conclusory statements and look only to whether the

remaining, factual allegations plausibly suggest the defendant is liable.”);

Cummings v. Dean, 913 F.3d 1227, 1235–36 (10th Cir. 2019) (declining to

consider an argument consisting of “single conclusory sentence”); Birch v.

Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) (declining to

consider an argument that was “inadequately briefed” because it was

“vague, confusing, conclusory, and unsupported by record evidence”).

G. Loss of Belongings after Their Seizure

Mr. Sperry also claims that authorities lost his belongings, violating

the Fourteenth Amendment’s Due Process Clause. 13 The district court

rejected this claim, reasoning that Mr. Sperry had adequate post-

deprivation remedies. Mr. Sperry doesn’t challenge this reasoning, so we

affirm this ruling. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366

(10th Cir. 2015) (stating that the appellant must “explain what was wrong

with the reasoning that the district court relied on in reaching its

decision”); see also Garrett v. Selby Connor Maddux & Janer, 425 F.3d

13 In the complaint, Mr. Sperry also claimed a denial of equal protection. But on appeal, he doesn’t reassert this claim. 19 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 20

836, 840–41 (10th Cir. 2005) (stating that even unrepresented litigants

must present an argument citing the record and supporting legal authority).

H. Lack of Fairness in Disciplinary Proceedings

Mr. Sperry also claims that his disciplinary proceedings were unfair.

The district court rejected the claim, reasoning that the proceedings hadn’t

affected the duration of the sentence. Mr. Sperry again fails to address the

district court’s reasoning, so we must uphold the ruling. See Nixon v. City

& Cty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (stating that the

appellant must “explain what was wrong with the reasoning that the district

court relied on in reaching its decision”); see also Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840–41 (10th Cir. 2005) (stating that even

unrepresented litigants must present an argument citing the record and

I. Deficiencies in the Prison’s Grievance System

In the complaint, Mr. Sperry also alleges that prison authorities made

a mockery of the grievance system. The district court rejected these

allegations, concluding that Mr. Sperry had failed to show hindrance to a

nonfrivolous claim or a constitutional right to a grievance system. Mr.

Sperry again fails to address the district court’s reasoning, so we affirm

the ruling. See Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1366 (10th

Cir. 2015) (stating that the appellant must “explain what was wrong with

the reasoning that the district court relied on in reaching its decision”); see

20 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 21

also Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840–41 (10th

Cir. 2005) (stating that even unrepresented litigants must present an

argument citing the record and providing legal authority).

III. State-Law Claims

In his appeal brief, Mr. Sperry invokes the Kansas Tort Claims Act

and asserts claims for battery, breach of fiduciary duty, negligence, and

outrage. These claims were properly dismissed.

A. Battery

In Kansas, a battery takes place only if the defendant makes contact

or puts another in apprehension of contact. Wilson v. Meeks, 98 F.3d 1247,

1253 (10th Cir. 1996). But the complaint lacks any allegations of a

touching or threatened touching by any of the defendants. So the district

court properly dismissed this claim.

Mr. Sperry argues on appeal that he was touched by the roaches and

likens the roaches to dogs, insisting that a dog owner can incur liability for

a battery when a dog attacks someone. But a dog owner owns and controls

the dog, and the prison doesn’t own or control the roaches. Given this

difference, the district court properly dismissed the battery claim.

B. Other State–Law Claims

In his appeal brief, Mr. Sperry also sprinkles references to various

other causes of action under Kansas law:

21 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 22

 “If mistreatment of a confined person is a crime, it certainly constitutes a violation of the Prison officials[’] fiduciary duty to protect Plaintiff from criminal abuse, and a jury could certainly find that torturing prisoners with roaches for 2½ months constitutes outrageous conduct.” Appellant’s Opening Br. at 6.

 “For the same reasons as the roach infestation, sleep deprivation constitutes the torts of battery, breach of fiduciary duty, outrageous conduct and negligence.” Id. at 7.

 “[Seizure of his belongings] clearly states a claim upon which relief could be had for . . . state torts . . . .” Id. at 9.

 “He is also protected from loss by [Kansas Department of Corrections] and its agents due to intentional or negligent seizure, damage or loss of his property by [the Kansas Department of Corrections’] agents. K.S.A. 75–6101 et seq.” Id.

 “[T]he Kansas Tort Claims Act protects him from these corrupt disciplinary proceedings as this is a diversity jurisdiction case. 75–6101 et seq.” Id. at 10.

 “These privileges and rights [available to inmates in general population and denied to inmates in administrative segregation] are protected by the Kansas Tort Claims Act under K.S.A. 75– 6101 et seq.” Id. at 11.

In these statements, Mr. Sperry does not adequately develop an argument

involving the Kansas Tort Claims Act or a cause of action for breach of

fiduciary duty, negligence, or outrage. We thus do not consider these

references as distinct arguments. See Adler v. Wal-Mart Stores, Inc., 144

22 Appellate Case: 21-3009 Document: 010110664499 Date Filed: 03/30/2022 Page: 23

F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the

opening brief are waived . . . .”). 14

IV. Conclusion

We reverse and remand on (1) the First Amendment retaliation claim

against defendants Wildermuth and Lucht and (2) the First Amendment

claim against defendants Lee, Shipman, Booth, and Sapien for withholding

of his mail. On the remaining dismissals, we affirm. 15

Entered for the Court

Robert E. Bacharach Circuit Judge

14 Though Mr. Sperry is pro se, he must comply with the same procedural rules governing other litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). 15 The defendants have not argued for affirmance on any alternative ground, so we express no opinion on the availability of summary judgment. Because the district court did not rule on the defendants’ alternative argument for summary judgment, the court should consider that argument on remand, if appropriate, as to the claims involving (1) retaliation against defendants Wildermuth and Lucht and (2) censorship of a photograph, the book The Target, and the magazines Us Weekly and Wired Magazine.