*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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*
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Before SEYMOUR and 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 not materially 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 oral argument.

Appellant Andrew Lee Ferguson, a state prisoner proceeding pro se,

appeals the district court order dismissing his § 1983 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 of his “jailhouse lawyering”

activities. On November 17, 2000, Mr. Ferguson amended 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 finding that he had no

legally protected interest to represent others. The district court correctly held that

the First Amendment is not implicated by Mr. Ferguson’s alleged “jailhouse

lawyering” activities. Prisoners “do not have a protected interest in providing

legal representation to other inmates.” Smith v. Maschner, 899 F.2d 940, 950
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(10th Cir. 1990). Mr. Ferguson’s reliance on the Ninth 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 represent others). 

Mr. Ferguson next argues that Defendants’ retaliation 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 not 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 “other protection from arbitrary state

action even within the expected conditions of confinement,” such as First

Amendment retaliation claims. Sandin, 515 U.S. at 487 n.11 (1995).

Appellant’s complaint states that after filing grievances regarding alleged

harassment, Defendants “placed plaintiff in involuntary administrative

segregation by alleging plaintiff violated policy without 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 constitutionally protected right is

actionable under . . . Section 1983 even if the act, when taken for a different
1Mr. Ferguson’s complaint surpasses the low threshold required to avoid

disposition through Fed. R. Civ. P. 12(b)(6). However, in order to proceed, it is

essential that Mr. Ferguson prove specific facts showing retaliation resulting from

the exercise of his First Amendment right to file grievances. Conclusory

allegations of constitutional retaliation are simply insufficient.

2We also deny Mr. Ferguson’s “Motion to File Exhibits” as moot. All of

the requested exhibits pertain to his allegation that the Defendants violated his

due process rights while placing him in involuntary administrative segregation.

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reason, would have been proper.’” Smith, 899 F.2d at 948 (10th Cir. 1990)

(citation omitted). A liberal reading of the complaint indicates that Mr. Ferguson

sufficiently pled that the administrative proceeding was a retaliatory act for filing

grievances in violation of Mr. Ferguson’s First Amendment rights.1

Mr. Ferguson’s final issue for review is whether his due process rights were

violated during the proceedings culminating in Mr. Ferguson’s placement in

administrative segregation. The district court correctly dismissed this claim. Mr.

Ferguson’s involuntary placement into segregated confinement does “not present

the type of atypical, significant deprivation in which 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 consideration of Mr.

Ferguson’s First Amendment retaliation claim for filing grievances. In all other

respects, we AFFIRM the District Court.
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Entered for the Court

Monroe G. McKay

Circuit Judge