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.) 

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ORDER AND JUDGMENT*

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Before MATHESON, EID, and CARSON, Circuit Judges. 

_________________________________ 

Calvin Johnson appeals from the district court’s dismissal of his civil-rights 

complaint under 28 U.S.C. § 1915(e)(2)(B). Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

While Mr. Johnson was incarcerated at the Colorado State Penitentiary, 

another inmate, Tim Grant, started a fight with him in the day hall common area. 

Prison officers responded. From outside the day hall, they ordered both Mr. Johnson 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 10, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

and Mr. Grant to lie on the floor. They then told Mr. Grant to get up and walk 

backwards to the slider-door to have his hands cuffed through the door slot. 

Mr. Grant began complying, but before he was restrained, he launched 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. He was charged with and 

convicted of a disciplinary offense for the incident, but he believes that Mr. Grant 

was not. 

Mr. Johnson filed suit under 42 U.S.C. § 1983. In screening the initial 

complaint, the magistrate judge determined he had not pled sufficient facts to support 

his claims for Eighth Amendment and equal protection violations. He directed 

Mr. Johnson to file an amended complaint “identify[ing] the specific factual 

allegations that support each claim, against which Defendant or Defendants he is 

asserting each claim, and what each Defendant did that allegedly violated his rights.” 

R. at 20. “In order to state an arguable Eighth Amendment claim Mr. Johnson must 

allege specific facts that demonstrate [officers’] deliberate indifference to a 

substantial risk of serious harm.” Id. at 21. And “[i]n order to assert a claim that his 

right to equal protection has been violated Mr. Johnson must allege facts that 

demonstrate he intentionally was treated differently than similarly situated inmates.” 

Id. at 22. 

Mr. Johnson’s amended complaint alleged that unknown prison officers were 

deliberately indifferent to his safety, in violation of his Eighth Amendment rights, 

when they failed to enter the day hall immediately upon arriving at the scene of the 
3 

altercation, ordered him into a vulnerable position, and then failed to stop Mr. Grant 

from attacking him either by tasering or pepper-spraying Mr. Grant through the door 

slot. With regard to the equal protection claim, Mr. Johnson alleged that he and 

Mr. Grant were housed on the same day hall and tier, making them similarly situated. 

The district court construed Mr. Johnson’s pro se amended complaint liberally 

but concluded it was legally frivolous and dismissed it under 28 U.S.C. 

§ 1915(e)(2)(B)(i) (“Notwithstanding any filing fee, or any portion 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.”). After 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 officers knew the inmates posed a 

substantial risk of serious harm to each other after they had complied with 

the order to lie down on the floor, Mr. Johnson does not allege facts that 

demonstrate the responding officers failed to act reasonably to abate the 

risk. Instead, it is apparent that the officers reasonably responded to that 

risk by attempting to place the inmates in handcuffs one at a time. 

Mr. Johnson does not allege that the responding officers knew Mr. 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. Furthermore, Mr. Grant’s failure to 

comply with the attempt to restrain him does not mean the steps taken by 

the responding officers were unreasonable. Mr. Johnson’s speculation that 

the assault could have been prevented if the officers had entered the dayhall 

sooner or if they had used a taser or pepper spray when Mr. Grant failed to 

comply also does not demonstrate the responding officers acted 

unreasonably. 
4 

R. at 36-37. As for the equal protection claim, the district court again reviewed the 

applicable law and held that 

Mr. Johnson fails to allege specific facts that demonstrate he 

intentionally was treated differently than a similarly situated inmate. His 

speculation that Mr. Grant may not have been charged with a disciplinary 

offense is not sufficient to state a cognizable constitutional claim that he 

has been denied equal protection. Furthermore, even assuming Mr. Grant 

was not charged with a disciplinary offense regarding the initial fight, 

Mr. Johnson fails to allege specific facts that demonstrate he and Mr. Grant 

are similarly situated with respect to their relative involvement in that 

altercation. 

Id. at 38 (citations omitted). 

Mr. Johnson now appeals. “We generally review a district court’s dismissal 

for frivolousness under § 1915 for abuse of discretion[, but] where the frivolousness 

determination turns on an issue of law, we review the determination de novo.” Fogle 

v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). 

We are not convinced that Mr. Johnson’s amended complaint was so deficient 

as to be frivolous. “[A] complaint, containing as it does both factual allegations 

and legal conclusions, is frivolous where it lacks an arguable basis either in law or in 

fact. . . . [The] term ‘frivolous,’ when applied to a complaint, embraces not only the 

inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v. 

Williams, 490 U.S. 319, 325 (1989). But the frivolousness standard is intended to 

apply to “claim[s] based on an indisputably meritless legal theory” or “claims 

describing fantastic or delusional scenarios,” id. at 327-28, not claims that merely fail 

to state a claim upon which 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 claims cannot proceed. For substantially the 

reasons discussed by the district court, the facts he alleges fail to rise to the level of 

stating plausible Eighth Amendment 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 appropriate—but under 

§ 1915(e)(2)(B)(ii), which allows dismissal for failure to state 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 motion to proceed 

without prepayment of fees or costs is granted. Mr. Johnson shall continue making 

partial payments to the district 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 Following” is denied. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge