* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 17 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREW FERGUSON, also known as Andrew Lee Ferguson,

Plaintiff - Appellant, No. 01-2030

v. (D.C. No. CIV-00-1371-MV) NEW MEXICO DEPARTMENT OF CORRECTIONS; WACKENHUT CORRECTIONS CORPORATION; ERASMO BRAVO, Warden, Guadalupe County Correctional Facility; TIMOTHY HATCH, Deputy Warden, Guadalupe County Correctional Facility; DAVID GRIEGO, Associate Warden, Guadalupe County Correctional Facility; JOHN/JANE DOE, also known as Major Johnson, Guadalupe County Correctional Facility; LIEUTENANT MICHAEL NEELY, Guadalupe County Correctional Facility; and SHANNON MCREYNOLD, Director, Special Control Unit, Penitentiary of New Mexico, (D. New Mexico)

Defendants - Appellees.

ORDER AND JUDGMENT *-2-

Before SEYMOURand McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist 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 ora l argument. Appellant Andrew Lee Ferguson, a state prisoner pro ceeding pro se, appeals the district court order dismissing his § 1 983 claims under Fed. R. Civ. P. 12(b)(6). On October 2, 2000, Mr. Ferguson filed a§ 1983 complaint claiming Defendants violated his rights under the First and Fourteenth Amendments of the Constitution. Mr. Ferguson’s complaint arose out o f his “jailhouse lawyering” activities. On November 17, 2000, Mr. Ferguson ame nded his original complaint. The district court dismissed the amended complaint on December 28, 2000. On appeal, Mr. Ferguson challenged the district court’ s decision on three grounds. Mr. Ferguson first disputes the district court’s fi nding that he had no legally protected interest to represent others. Th e district court correctly held that the First Amendment is not implicated by Mr. Fergus on’s alleged “jailhouse lawyering” activities. Prisoners “do not have a pr otected interest in providing legal representation to other inmates.” Smith v. M aschner , 899 F.2d 940, 950-3-

(10th Cir. 1990). Mr. Ferguson’s reliance on the N inth Circuit’s decision in Murphy v. Shaw , 195 F.3d 1121 (9th Cir. 1999), is unfounded; the Supreme Court recently reversed that decision. Shaw v. Murphy , 532 U.S. 223 (2001) (holding that prisoners have no First Amendment right to rep resent others). Mr. Ferguson next argues that Defendants’ retaliati on against him for filing grievances constitutes a deprivation of his constitutional rights. The district court did not address this issue in its ruling. It is true that the Supreme Court in Sandin
v. Conner , 515 U.S. 472 (1995), held that a prisoner does no t have a protected due process interest in administrative segregation proceedings unless the punishment is atypical of what is expected while in confinement. However, the Court specifically held that prisoners retain “othe r protection from arbitrary state action even within the expected conditions of confi nement,” such as First Amendment retaliation claims. Sandin , 515 U.S. at 487 n.11 (1995). Appellant’s complaint states that after filing grie vances regarding alleged harassment, Defendants “placed plaintiff in involuntary administrative segregation by alleging plaintiff violated policy w ithout substantiating the violation. This was done in an attempt to cover up harassment and retaliation.” Plaintiff’s Complaint, Rec., Vol. 1, Doc. 7 at 2-C and D. “‘[I]t is well established that an act in retaliation for the exercise of a co nstitutionally protected right is actionable under . . . Section 1983 even if the act , when taken for a different1 Mr. Ferguson’s complaint surpasses the low threshol d required to avoid

disposition through Fed. R. Civ. P. 12(b)(6). Howe ver, in order to proceed, it is essential that Mr. Ferguson prove specific facts sh owing retaliation resulting from the exercise of his First Amendment right to file g rievances. Conclusory allegations of constitutional retaliation are simpl y insufficient.

2 We also deny Mr. Ferguson’s “Motion to File Exhibit s” as moot. All of the requested exhibits pertain to his allegation th at the Defendants violated his due process rights while placing him in involuntaryadministrative segregation. -4- reason, would have been proper.’” Smith , 899 F.2d at 948 (10th Cir. 1990) (citation omitted). A liberal reading of the compl aint indicates that Mr. Ferguson sufficiently pled that the administrative proceedin g was a retaliatory act for filing grievances in violation of Mr. Ferguson’s First Ame ndment rights. 1 Mr. Ferguson’s final issue for review is whether hi s due process rights were violated during the proceedings culminating in Mr. Ferguson’s placement in administrative segregation. The district court cor rectly dismissed this claim. Mr. Ferguson’s involuntary placement into segregated co nfinement does “not present the type of atypical, significant deprivation in wh ich a State might conceivably create a liberty interest.” Sandin , 515 U.S. at 486. Therefore, Mr. Ferguson’s third issue on appeal fails. 2
We REMAND this case to the District Court for consi deration of Mr. Ferguson’s First Amendment retaliation claim for fi ling grievances. In all other respects, we AFFIRM the District Court.-5- Entered for the Court

Monroe G. McKay Circuit Judge