UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CALVIN JOHNSON, Plaintiff - Appellant,

v. JOHN DOE, (going to be at least 2 or more “John Does”), Defendant - Appellee. No. 18-1038 (D.C. No. 1:17- CV-02800-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , EID , and CARSON , Circuit Judges.

________________ _________________ Calvin Johnson appeals from the d istrict court’s dismissal of h is civil-rights complaint under 28 U.S.C. § 191 5(e)(2)(B). Exercising jurisdic tion under 28 U.S.C. § 1291, we affirm. While Mr. Johnson was incarcerate d at the Colorado State Penite ntiary, another inmate, Tim Grant, start ed a fight with him in the day hall common area. Prison officers responded. From out side the day hall, they ord ered both Mr. Johnson

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 10, 2018
Elisabeth A. Shumaker Clerk of Court2 and Mr. Grant to lie on the floor . They then told Mr. Grant to get up and walk backwards to the slider-door to ha ve his hands cuffed through t he door slot. Mr. Grant began complying, but bef ore he was restrained, he lau nched himself at Mr. Johnson (who was still lying on the floor), hitting him on the back and the back of the head. Mr. Johnson suffered injuries from the attack. H e was charged with and convicted of a disciplinary offe nse for the incident, but he be lieves that Mr. Grant

was not. Mr. Johnson filed suit under 42 U. S.C. § 1983. In screening th e initial complaint, the magistrate judge d etermined he had not pled suff icient facts to support his claims for Eighth Amendment and equal protection violations . He directed Mr. Johnson to file an amended comp laint “identify[ing] the spe cific factual allegations that support each cla im, against which Defendant or Defendants he is asserting each claim, and what each Defendant did that allegedl y violated his rights.” R. at 20. “In order to state an arguable Eighth Amendment clai m Mr. Johnson must allege specific facts that dem onstrate [officers’] deliberate i ndifference to a substantial risk of serious harm.” Id. at 21. And “[i]n order to a ssert a claim that his right to equal protection has b een violated Mr. Johnson must al lege facts that demonstrate he intentionally was t reated different ly than simil arly situated inmates.”
Id. at 22. Mr. Johnson’s amended complaint al leged that unkno wn prison off icers were deliberately indifferent to his safety, in violation of his Eig hth Amendment rights, when they failed to enter the da y hall immediately upon arrivin g at the scene of the3 altercation, ordered him into a vulnerable position, and then f ailed to stop Mr. Grant from attacking him either by ta sering or pepper-spraying Mr. Gr ant through the door slot. With regard to the equal protection claim, Mr. Johnson a lleged that he and Mr. Grant were housed on the same day hall and tier, making the m similarly situated. The district court construed Mr . Johnson’s pro se amended compl aint liberally but concluded it was legally frivo lous and dismissed it under 2 8 U.S.C. § 1915(e)(2)(B)(i) (“Notwithsta nding any filing fee, or any por tion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious.”). Afte r summarizing the applicable Eighth Amendment standards, the court held that Mr. Johnson had failed to allege sufficient facts to support an Eighth Amendment claim: Even assuming the responding offi cers knew the inmates posed a substantial risk of serious harm to each other after they had c omplied with the order to lie down on the fl oor, Mr. Johnson does not allege facts that demonstrate the responding offi cers failed to act reasonably to abate the risk. Instead, it is apparent tha t the officers reasonably res ponded to that risk by attempting to place the i nmates in handcuffs one at a t ime. Mr. Johnson does not allege that the responding o fficers knew M r. Grant would launch a new attack if he was allowed to get up in order to be the first one to be placed in handcuffs. Furth ermore, Mr. Grant’s failure to comply with the attempt to restra in him does not mean the steps taken by the responding officers were unreasonable. Mr. Johnson’s specu lation that the assault could have been pre vented if the officers had enter ed the dayhall sooner or if they had used a tas er or pepper spray when Mr. Gra nt failed to comply also does not demonstrate the responding officers acted unreasonably.4 R. at 36-37. As for the equal pr otection claim, the district c ourt again reviewed the applicable law and held that Mr. Johnson fails to allege speci fic facts that demonstrate he intentionally was treated differe ntly than a similarly situated inmate. His speculation that Mr. Grant may not have been cha rged with a dis ciplinary offense is not sufficient to s tate a cognizable constitutional claim that he has been denied equal protectio n. Furthermore, even assuming M r. Grant was not charged with a disciplin ary offense regarding the initi al fight, Mr. Johnson fails to allege speci fic facts that demonstrate he and Mr. Grant are similarly situated with resp ect to their relative involveme nt in that altercation. Id. at 38 (citations omitted). Mr. Johnson now appeals. “We gene rally review a district court ’s dismissal for frivolousness under § 1915 for a buse of discretion[, but] w here the frivolousness determination turns on an issue of law, we review the determina tion de novo .” Fogle
v. Pierson , 435 F.3d 1252, 1259 (10th Cir. 2006). We are not convinced that Mr. Joh nson’s amended complaint was s o deficient as to be frivolous. “[A] compla int, containing as it does both factual allegations and legal conclusions, is frivol ous where it lacks an arguable basis either in law or in fact. . . . [The] term ‘frivolous,’ when applied to a complain t, embraces not only the inarguable legal conclusion, but a lso the fanciful factual alle gation.” Neitzke v.
Williams , 490 U.S. 319, 325 (1989). But the frivolousness standard is intended to apply to “claim[s] based on an i ndisputably meritless legal the ory” or “claims describing fantastic or delusional scenarios,” id. at 327-28, not claims that merely fail to state a claim upon whic h relief can be granted, id. at 330. Mr. Johnson invokes recognized legal theories and does not present fanciful factual allegations.5 Nevertheless, Mr. Johnson’s clai ms cannot proceed. For substan tially the reasons discussed by the district court, the facts he alleges f ail to rise to the level of stating plausible Eighth Amendmen t or due process violations. He has “not nudged [his] claims across the line from conceivable to plausible,” as he is required to do to state a claim. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 ( 2007). In these circumstances, dismissal under § 1915(b)(2)(B) remains appropri ate—but under § 1915(e)(2)(B)(ii), which allows dismissal for failure to stat e a claim upon which relief can be granted, rather than under § 1915(e)(2)(B)(i). The district court’s judgment is affirmed. Mr. Johnson’s motio n to proceed without prepayment of fees or c osts is granted. Mr. Johnson sh all continue making partial payments to the distri ct court until the full amount of the filing and docketing fees have been paid. His “Motion for the U.S. Court of Appeals Panel of Judges to Grant the Followi ng” is denied.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge