UNITED STATES COURT OF APPEALS TENTH CIRCUIT

BILLY G. MARSHALL, Plaintiff - Appellant, v. No. 14-6070 L.D. ORMAND; ROBERT BEEBE; T. DURFEY; TRACY MCCOLLUM; MARK KNUTSON, Defendants - Appellees. (D.C. No. 5:13-CV-00865-HE) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and BACHARACH , Circuit Judges. **

Plaintiff Billy Marshall, proceeding pro se, appeals the district court’s summary dismissal of his 42 U.S.C. §1983 claim allegi ng procedural due process violations in the resolution of a prison disciplinary matter. 1 Plaintiff also seeks
* This order and judgment is not binding precedent, except un der the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howe ver, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appella te 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 Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument.

1 We construe Plaintiff’s pro se filings liber ally. See Garza v. Davis, 596 F.3d 1198, 1201 (10th Cir. 2010). FILED United States Court of Appeals Tenth Circuit 

### July 23, 2014
Elisabeth A. Shumaker Clerk of Courtleave to proceed in forma pauperis (“IFP”). For the following reasons, we grant the petition to proceed IFP and affirm the dist rict court’s judgment.
I. The following is a summary of the fact s as stated in Pl aintiff’s complaint and of course, “well-pleaded facts [in Pl aintiff’s complaint] must be taken as true.” Ruiz v. McDonnell, 299 F.3d 1 173, 1181 (10th Cir. 2002). In April 2013, as Plaintiff proceeded with his food through the prison me ss hall, a prison employee asked him to tuck-in his shirt ta il. He did not immediately comply and the prison official rep eated the request. Plaintiff, ag ain, did not comply. This led to a verbal altercation in which the empl oyee allegedly used ra cial slurs and in response Plaintiff stated he would kill the employee or anyone else who put their hands on him. Plaintiff file d a written grievance with prison administration about the employee’s use of racial sl urs. In the grievance, Pl aintiff reiterated he would kill “any staff” who laid hands on him. This stat ement triggered prison disciplinary proceedings. The disciplin ary committee determined Plaintiff had committed a “menacing” of fense and assigned Plaintiff to maximum security housing. 2 According to Plainti ff, inmates in maximum s ecurity are segregated from the general population, are “normally on lockdown 23

– 24 hours” a day, and are sometimes housed with ot her inmates. At the time of his appeal, Plaintiff states he has been in maxi mum security for over 400 days.

2 Plaintiff’s brief at p. 4: Misconduct Offense Code 05-5 defines “menacing” as threats of bodily harm or death to a staff member or citizen.3 Plaintiff unsuccessfully sought review of the disciplinary action within the prison grievance system argui ng the prison did not allow defense witnesses at any stage of the disciplinary process. Plain tiff then filed this action in the United States District Court. A Magistra te’s Report and Recommendation (“R&R”) reasoned Plaintiff’s clai ms were foreclosed by Heck v. Humphrey, 512 U.S. 477 (1994). The district judge did not adopt the magistrate’s reas oning. Instead, on review of the Magistrate’s R&R the court held Plaintiff’s alle gations established no protected liberty interest that might give rise to a due process claim. Accordingly, the court summ arily dismissed Plaintiff’s complaint under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted. When a claim is dismissed under 28 U.S.C. § 1915A we review the dismissal de novo . Thomas v. Guffey, 367 F. App’x 957, 958

– 59 (10th Cir. 2010).
II. The question that concerns us is whet her Plaintiff’s plac ement in maximum security created a protected liberty interest that might give rise to a procedural due process claim for failure to allow witnesses during the prison disciplinary process. The threshold inqui ry in a due process analysis is to identify whether a protected liberty interest is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Liberty interests “may arise from an expectation or interest created by state laws or policies.” Estate of DiMa rco v. Wyoming Dep’t of Corr., Div. of4 Prisons, 473 F.3d 1334, 1339 ( 10th Cir. 2007) (citing Wilk inson 545 U.S. at 221). In the case of prisoners this “in no way im plies that these. . . [interests] are not subject to restrictions imposed by. . . the regime to which they have been lawfully committed.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The key is balancing the prison’s nece ssary discretionary authority with the protections due process provides. Id. at 566. Prison disciplinary proceed ings can create a protected liberty interest if they impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” or “i nevitably affect the duration of. . . [the pris oner’s] sentence.” Sand in v. Conner, 515 U.S. 472 (1995). To determine whether a disciplinary pr oceeding creates su ch a burden, the court must “identify... the baseline from which to meas ure what is atypical and significant in any particular prison system.” Estate of DiMarco, 473 F.3d at 1340. In Estate of DiMarc o, the plaintiff was housed in solitary conditions for over a year. We used the following to he lp establish a baseline for whether her confinement conditions created a protec ted liberty interest : (1) Whether the segregation furthers a legiti mate penological interest su ch as safety, (2) whether the conditions in the placem ent are extreme, (3) whether the punishment impacts the inmate’s duration of incarceration, and (4) whether the placement was indeterminate. 473 F.3d at 1342. No singl e factor is dispositive and the factors5 are not all inclusive. Id. In analyzing whether the placement is indeterminate the court considered placement duration and frequency of placement review. Id

. While no time limit for placement in admini strative housing exists , a panel of this court has held a 399-day administrative detention does not create a protected liberty interest. Hill v. Fleming, 173 F. App’x 664, 6 72 (10th Cir. 2006) (unpublished). To determine if Plain tiff’s confinement c onditions create a protected liberty inte rest we apply the sa me analysis here. We begin by looking for a legitimate penological interest. Plaintiff’s placement in maximum security is the c onsequence of verbal and written threats to kill prison employees who laid hands on him. Segregati ng a prisoner as a consequence of death threats serves the legitimate penol ogical interest of safety for both staff and other pris oners. See Estate of Di Marco, 473 F.3d at 1342 (noting safety is a legitim ate penological interest). Th is factor weighs against Plaintiff. Second, we determine if th e confinement conditions are extreme in nature. Plaintiff does not gi ve substantial detail as to the conditions in maximum security; however, we do know he is not hous ed alone. Although this in itself is not conclusive evidence the co nditions are not extreme, it distinguishes Plaintiff’s claim from solitary conf inement cases. See Wolff 418 U.S. at 594 (noting solitary confinement is in a distinct category as compared to ot her deprivations). Plaintiff also states th e unit is normally in lockdown 23

– 24 hours per day. Lockdown6 periods in prison housing for inmates who may pose a safety risk are not unexpected or extreme. Gi ven Plaintiff is not housed alone and lockdowns in themselves are not extreme, th is factor does not weigh in Plaintiff’s favor. Third, Plaintiff’s term of incarce ration is not impacted. Pl aintiff is serving an 85% sentence and is not yet elig ible to accumulate good behavi or credits; this weighs against Plaintiff. Finally, we look to the duration of th e placement. Plaintiff did not specify how long he will be in maxi mum security, how often his status is reviewed while housed there, nor a typical timeframe fo r similar situ ations. At the time of his appeal, Plai ntiff states he has been in maximum security for “over 400 days.” This exceeds the 399-day time period in Hill, th ough by how much is not clear. Construing the fa cts in a light most favorable to Plaintiff, this factor could weigh in Pl aintiff’s favor. Weighed together, the fact ors as applied to the fa cts provided by Plaintiff do not show his confinement in maximu m security housing cr eates a protected liberty interest. They do s upport a conclusion that livi ng in maximum security is indeed more restric tive than ordinary prison living. The difference, however, is

not so extreme as to rise to a level of atypical or significant. See Sandin 515 U.S. at 486 (holding “discipline in segregated confinement d[ oes] not present the type of atypical, significant deprivation in which a Stat e might conceivably create a liberty interest”). Therefore, Plaintif f’s placement in maximum security housing7 does not create a protected liberty interest that would give ri se to a due process claim. We therefore need not reach Plaintiff’s pro cedural due process claim because “[w]e need reach the question of wh at process is due only if the inmate[] establish[es] a constitutionally protected liberty interest.” Wilkinson, 545 U.S. at 221. Plaintiff did not establis h a protected liberty interest and thus fail s to state a claim upon which relief can be granted; th e district court properly dismissed the Plaintiff’s comp laint.
IV. Plaintiff also petitions the court to proceed IFP. Thou gh his claims were ultimately without merit, th ey were not so frivolous or unreasoned as to imply bad faith. See 28 U.S.C. § 1915(a)(1) & (a)( 3). No evidence suggests Plaintiff’s monthly income exceeds his monthly expenses by any significant amount such that he would have had suffi cient income to pay the fi ling fees at the time he sought appeal. Cf. Brewer v. City of Overland Park Police Dep’t, 24 F. App’x 977, 979 (10th Cir. 2002) (unpublished). Therefore Pl aintiff’s petition to proceed IFP is GRANTED.8 *** For the reasons set forth above, the judgment of th e district court as to Plaintiff’s due process claim is AFFIRMED. Entered for the Court,

Bobby R. Baldock United States Circuit Judge