UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOHN PATRICK FLETCHER, Plaintiff - Appellant,

v. CELIA SCHWARTZ; DENT; EDWIN HERNDON; HANSEN; DAVID LISAC; JASON LENGERICH; RICK RAEMISCH, Defendants - Appellees. No. 18-1013 (D.C. No. 1:17- CV-01576-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ John Patrick Fletcher, a Colora do prisoner, filed a pro se civi l rights complaint against several prison officials alleging violations of his rig hts under the First, Eighth, and Fourteenth Amendments . On screening, the district court dismissed his federal claims as legally frivol ous under 28 U.S. C. § 1915 and declined to exercise

* 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 This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel.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 

### August 2, 2018
Elisabeth A. Shumaker Clerk of Court2 supplemental jurisdiction over hi s state-law claims. Exercisin g jurisdiction under 28 U.S.C. § 1291, 1 we affirm the distric t court’s judgment. I. Background Mr. Fletcher’s second amended co mplaint is the operative compl aint. 2
Because all of his federal clai ms ultimately stem from his alle gation that Celia Schwartz, a legal assista nt in the prison library, violat ed his right to freedom of speech under the First Amendment , we repeat those allegations i n their entirety: g. On or about May 09, 2017, at approximately 09:50 a.m., in th e prison law library, Defendant S chwartz and Mr. Fletcher had a disagreement over whether Mr. Fle tcher was allowed to print a motion he needed to file with the court. h. Defendant Schwartz stated that she was busy and was not will ing to listen to Mr. Fletcher’s rebuttal of her reasoning; further ins tructing him to sit down and stop engaging in his right to Freedom of Sp eech. i. Mr. Fletcher immediately sat down and faced the computer mon itor, as ordered. j. Mr. Fletcher then, in a[] ca lm and measured manner, reminded Defendant Schwartz that the Free dom of Speech he was engaging i n, was a constitutionally protected right, and Defendant Schwartz’ s order to stop engaging in such protected conduct, was a federal offense under 18 U.S.C. § 242, d eprivation of rights under colo r of law. k. Having been informed upon the premises of the unlawful natur e of her actions – Defendant Schwart z repeated her unlawful order fo r

1 Section 1291 provides, in relevan t part: “The courts of appea ls . . . shall have jurisdiction of appeals from all final decisions of the distric t courts of the United States . . . .”

2 After Mr. Fletcher filed his or iginal complaint and a first am ended complaint, a magistrate judge ordered him to file a second amended complai nt that provided a short and plain statement of his claims in compliance with Fed. R. Civ. P. 8.3 Mr. Fletcher to stop engaging in the protected right to Freedom of Speech. l. Further warning Mr. Fletcher that if he did not stop engagin g in such protected conduct, Defendant Schwartz would retaliate against Mr. Fletcher, by calling for first- responders, (with both parti es fully aware of the disciplinary cons equences and punitive sanctions w hich would result). m. Despite Defendant Schwartz’ s threat of retaliation, Mr. Flet cher continued to exercise his protec ted right to Freedom of Speech, by reexplaining to Defendant Schw artz, in a calm and measured manner, that her order to stop e ngaging in the right to Freedom of Speech, was a federal offens e under 18 U.S.C. § 242. n. Having been so info rmed, Defendant Schwartz followed through with her threat of retaliation against Mr. Fletcher, for engagi ng in the protected right to Fr eedom of Speech, and called for first-resp onders. o. (The facility security video fo otage of the law library show s that at no time during this exchange, did any of the prisoners present stop quietly working on their cases; as each prisoner was seemingly oblivious to Defendant Schwartz ’s unlawful conduct. As such, th is particular usage of such powe r and authority, was not for any reasonable, neutral government/p enological interest, but exerci sed solely for the personal reason o f silencing a dissenting voice Defendant Schwartz di d not want to hear.) R. at 139-40 (footnote and emphasis omitted). Mr. Fletcher alleged that Ms. Sch wartz’s conduct constituted “c riminal victimization,” id. at 142, which violated not only his First Amendment free speec h rights (including his right not to be subject to retaliation fo r exercising his First Amendment rights), but also his rights to due process and equal protection, and his right to be free from crue l and unusual punishment. Mr. Fletcher further alleged that the other defendants, ranging from correctional officers to the Ex ecutive Director of the Colorado Department of Corrections, each violated his constitutional rights by failing or refusing to notify law4 enforcement of his criminal vict imization by Ms. Schwartz, spec ifically her violation of 18 U.S.C. § 242, which p rovides in relevant part: Whoever, under color of any l aw . . . willfully subjects any pe rson in any State . . . to the deprivati on of any rights, privileges, o r immunities secured or protected by the Cons titution or laws of the United States . . . shall be fined under this title o r imprisoned not more than one year, or both[.] The district court dismissed Mr . Fletcher’s second amended comp laint as legally frivolous because “none of the forty claims set forth a violation of Plaintiff’s constitutional rights.” R. at 167.
II. Discussion “We generally review a district court’s dismissal for frivolous ness under § 1915 for abuse of discretion . However, where the frivolousne ss determination turns on an issue of law, w e review the determination de novo .” Fogle v. Pierson , 435 F.3d 1252, 1259 ( 10th Cir 2006) (cita tion omitted). “A dis trict court may deem an in forma pauperis complaint frivolous only if it lacks an ar guable basis either in law or in fact.” Id. (internal quotation marks omi tted). “[The] term ‘frivolous,’ when applied to a complaint, embrace s not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams , 490 U.S. 319, 325 (1989). Thus, frivolous claims are those “based on an indisputably meri tless legal theory” or “describing fantastic or delusional scenarios.” Id. at 327-28. But a complaint is not automatically frivolou s because it fails to state a claim on wh ich relief may be granted. Id. at 331.5 Applying these standards, we re spectfully disagree with the dis trict court’s conclusion that Mr. Fletcher’s f ederal claims are frivolous. H is claims are not based on fanciful factual allegations . Nor does he assert unrecogniz able legal theories or “infringement of a legal interest which clearly does not exist. ” Id. at 327. But we agree with the district court th at the facts he alleged do not set forth violations of the constitutional rights that he as serted. As such, his federal c laims are subject to dismissal under § 1915(e)(2)(B)( ii) for failure to state claims on which relief can be granted, rather than for frivol ousness under subsection (e)(2)( B)(i). Thus, we affirm the dismissal of Mr. Fletcher’s complaint under § 1915(e)(2)(B)

. 3 A. Claims Against Ms. Schwartz Mr. Fletcher’s primary contention is that Ms. Schwartz violated his First Amendment right to fr eedom of speech. The Supreme Court has “a dopted a unitary, deferential standard for revie wing prisoners’ constitutional cl aims: When a prison regulation impinges on inmates’ constitutiona l rights, the regu lation is valid if it is reasonably related to legitima te penological interests.” Shaw v. Murphy , 532 U.S. 223, 229 (2001) (brackets and in ternal quotation marks omitted) . The same reasonable-relation test applies when a prisoner challenges an action by a particular official, rather than a prison regulation. See Boles v. Neet , 486 F.3d 1177, 1181 n.4 (10th Cir. 2007) (“Alt hough plaintiff is not challenging a pris on regulation per se, but

3 Mr. Fletcher does not challenge the district court’s decision not to assert supplemental jurisdiction over hi s remaining state-law claims.6 rather [the warden’s] individual actions, [the rea sonable-relat ion test] is no less applicable.”). To avoid dismissal, Mr. Fletche r’s First Amendment claim agains t Ms. Schwartz “must contain suffi cient factual matter, accepted as true, to state a claim to relief that i s plausible on its f ace. A claim has fac ial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable f or the misconduct alleged.” Gee v. Pacheco , 627 F.3d 1178, 1184 (10th Cir. 2010) (in ternal quotation marks omitted). In making this plausibility determina tion, context matters. Id. at 1185. Nowhere in the law does context have greater relevance to the v alidity of a claim than prisoner civil-rights claims. Prisons are a unique environment, and the Supreme Court has repeat edly recognized that the role o f the Constitution within their walls i s quite limited . Government c onduct that would be unacceptable, even outr ageous, in another setting may be acceptable, even necessary, in a prison. Consequently, a priso ner claim will often not be plausible unle ss it recites facts that might well be unnecessary in other contexts . For example, . . . a prisoner c laim may not be plausible unless it alleges fa cts that explain why the usual justifications for the complained-of acts do not apply. Id. Although we will liberally construe a pro se complaint, “conc lusory allegations without supporting factual averme nts are insufficient to state a claim on which relief can be based.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). Liberally construing Mr. Fletc her’s non-conclusory allegations , his First Amendment claim against Ms. Sch wartz asserts the following fact s: at a particular date and time, Ms. Schwartz sta ted she was busy and would not p ermit Mr. Fletcher to print a motion that he needed to file with a court. When he voiced his7 disagreement with her decision, Ms. Schwartz was not willing to listen. She instead ordered him to sit down and stop repeating his complaint. Desp ite Ms. Schwartz’s warning that she would call fi rst responders, Mr. Fletcher pers isted in voicing his disagreement with her order, a sserting his right to do so under the First Amendment and informing Ms. Schwartz that her conduct violated 18 U.S.C. § 242. Ms. Schwartz eventually called first responders, who escorted M r. Fletcher out of the prison library. During his excha nge with Ms. Schwartz, Mr. Fle tcher remained calm, and other prisoners in the libra ry continued to quietly work on their cases. These allegations fail to state a plausible First Amendment cl aim against Ms. Schwartz. As the Supreme C ourt has recognized, “In a priso n context, an inmate does not retain those First Amen dment rights that are inconsist ent with his status as a prisoner or with the legitimate pe nological objectives of the c orrections system.” Jones v. N.C. Prisoners’ Labor Union, Inc. , 433 U.S. 119, 129 (1977) (internal quotation marks omitted). And it is Mr. Fletcher’s burden to d emonstrate through his allegations that there was no leg itimate basis for Ms. Schwartz ’s conduct. See
Al-Owhali v. Holder , 687 F.3d 1236, 1240-41 (10th Ci r. 2012) (upholding dismissal of First Amendment challenge t o limitations on prisoner’s commu nications with relatives because he fa iled to plead facts s howing defendants l acked a legitimate penological interest in limiting his correspondence). Mr. Flet cher’s allegations that he remained calm and did not disr upt the other prisoners’ legal work do not demonstrate that Ms. Schwartz ha d no legitimate basis to order him to cease arguing with her. Nor did Mr. Fletcher plead any other facts showing t hat the usual8 justification for not permitti ng a prisoner to repeatedly quest ion a staff member’s decision—the need to maintain ord er in a prison setting— did no t apply in this case.
See Gee , 627 F.3d at 1185 (requiring pris oners to allege facts explain ing “why the usual justifications for the c omplained-of act s do not apply”). In sum, he failed to plead that Ms. Schwartz’s conduct was not “reasonably related t o legitimate penological interests.” Turner v. Safley , 482 U.S. 78, 89 (1987). 4 Mr. Fletcher’s other claims ag ainst Ms. Schwartz are based on the same facts as her alleged violation of his First Amendment right to freedo m of speech. He therefore also failed to plead a plausible claim that Ms. Schwa rtz retaliated against him for exercising his First Am endment rights. Nor do these fa cts plead plausible claims that Ms. Schwartz violated his rights to due process or equal protection, or subjected him to cruel and unu sual punishment. Consequently, a ll of Mr. Fletcher’s claims against Ms. Schwartz were properly dismissed pursuant to § 1915(e)(2)(B).

4 We note, as well, that Mr. Fle tcher did not plead any facts sh owing that he lacked alternative means, such as the prison grievance system, to lodge his complaint about Ms. Schwartz’s decision not to allow him to print his mot ion. See Jones , 433 U.S. at 130 & n.6 (noting “F irst Amendment speech rights ar e barely implicated in this case,” in par t, because “[t]he Stat e has not hampered t he ability of prison inmates to communicate their gri evances to correctional officia ls” through a grievance procedure). Nor did M r. Fletcher plead facts showing that accommodation of a prisoner’s right to verba lly voice such complaints, withou t restriction, would have no significant impact on guards and other inmates. See Turner , 482 U.S. at 90 (“When accommodation of an asse rted right will have a significa nt ‘ripple effect’ on fellow inmates or on prison staf f, courts should be particularl y deferential to the informed discretion of corrections official s.”). The absence o f such allegations further demonstrates that Mr. Fle tcher failed to set forth a pl ausible First Amendment claim against Ms. Schwartz. See Gee , 627 F.3d at 1185 (no ting “a prisoner claim will often not be plausible unles s it recites facts that might well be unnecessary in other contexts”).9 B. Claims Against the Other Defendants All of Mr. Fletcher’s claims aga inst the other defendants are b ased upon their failure or refusal to report to law enforcement authorities his so-called criminal victimization, specifically Ms. S chwartz’s alleged criminal vio lation of his First Amendment rights under 18 U.S.C . § 242. But having failed to p lead a plausible civil claim of a constitutional violation against Ms. Schwartz, Mr. Fletcher likewise did not plead facts showing th at her conduct amounted to a crim inal violation of his constitutional rights. Like 42 U. S.C. § 1983, § 242 requires a deprivation of a constitutional right under color of law. See 18 U.S.C. § 242 (“W hoever, under color of any law . . . willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured orprotected by the C onstitution . . . shall be fined under this title or impris oned not more than one year, or both[.]”); see also
United States v. LaVallee , 439 F.3d 670, 687 (10th Cir . 2006) (“Section 242 makes it criminal to act (1) willfully a nd (2) under color of law (3) to deprive a person of rights protected by the Constitu tion . . . .” (internal quotati on marks omitted)); Berry v. City of Muskogee , 900 F.2d 1489, 1501 n.17 (10th Cir. 1990) (noting § 242 is th e “criminal civil rights act counterpart” of § 1983). Thus, abse nt facts supporting a plausible criminal violation by Ms. Schwartz, Mr. Fletcher’s cl aims against the other10 defendants likewise fail to plaus ibly assert constitutional vio lations based on their failure or refusal to report hi s alleged “criminal victimizatio n” by Ms. Schwartz. C. Other Contentions on Appeal Mr. Fletcher raises several cont entions regarding the district judge and magistrate judge who presided in this case. He fails to demons trate that either judge was biased in deciding any of h is motions or in dismissing his second amended complaint. Nor does he show tha t either judge “knowingly conce aled the actual commission of multiple federal f elonies from discovery by feder al law enforcement.” Aplt. Opening Br. at 11. Mr. Fle tcher’s request for a change o f venue on remand is mooted by this court’s affirman ce of the district court’s judgm ent. Lastly, Mr. Fletcher argues th at 18 U.S.C. § 4 is unconstitutio nal. 5 It is unclear how this contention relate s to Mr. Fletcher’s claims of error in the district court’s dismissal of his second amended complaint. But in any event, we do not address this argument because Mr . Fletcher did not raise it in the district court. “An issue is preserved for appeal if a party alerts the district co urt to the issue and seeks a ruling.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co. , 497 F.3d 1135, 1141 (10th Cir. 2007). Mr. Fletcher did not include a claim challen ging § 4 in his second amendment complaint. And he fai ls to cite any other place in t he record where this

5 This statute provides: “Whoever , having knowledge of the actu al commission of a felony cognizable by a court of the United Stat es, conceals and does not as soon as possibl e make known the same to some judge or ot her person in civil or military authority under the United States, shall be fined u nder this title or imprisoned not more than three y ears, or both.” 18 U.S.C. § 4.11 contention was raised and then r uled on by the district court. See 10th Cir. R. 28.2(C)(2); Ecclesiastes 9:10-11-12, Inc. , 497 F.3d at 1141-42. Nor has he argued for plain error review. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130-31 (10th Cir. 2011) (noti ng appellant’s failure to assert plain er ror “surely marks the end of the road for an argument for reversal not first presented to the district court”).
III. Conclusion The judgment of the district cour t is affirmed. Mr. Fletcher’s motion for leave to proceed on appeal without prepa yment of fees and costs and h is motion for leave to amend his appeal brief are g ranted. All other pending motio ns are denied.

Entered for the Court

Joel M. Carson Circuit Judge