UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DARREL ALAN HYBERG, JR., Plaintiff - Appellant,

v. KEN ENSLOW; TOM RITTENHOUSE; TIM QUINN; MIKE CUNNINGHAM, Defendants - Appellees. No. 19-1155 (D.C. No. 1:18-CV -00014-RM-NRN) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Darrel Alan Hyberg, Jr., appeals the dism issal of his pro se complaint alleging prison staff subjected him to retaliation and unreasonable st rip searches in violation of his First and Fourth Ame ndment rights. We affirm.
I Hyberg is an inmate at the Sterling Correctional Facility, where he works at the Colorado Correctional Indus tries Seating Factory. A ccording to th e complaint,

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 21, 2020 Christopher M. Wolpert Clerk of Court2 “[s]trip searches are a rou tine part of life for inmates at Sterling,” and “Hyberg can be subjected to a strip search every time he enters or leaves the Seating Factory at the beginning or end of his shift. ” R. at 11, para. 1-2. Although Hyberg has a medical condition that makes him especi ally sensitive to searches, his claims stem from two searches in particular. First, on January 24, 2017, Defendant Rittenhouse ordered Hyberg to present his body for visual inspection after completi ng his shift at the Seating Factory. Defendant Enslow conducted the search. Hyberg entered the co mmon area used for strip searches, where three other inmates we re present. He entered one of four booths, which “provided no real privacy du e to the height” and depth of the walls, and because there were “no sc reens or privacy barriers.” Id. at 14, para. 24. While Hyberg was naked, Enslow ordered him to lift his arms, put his fingers in his mouth to demonstrate he was not concealing anything, separate his penis from his scrotum and lift his scrotum, turn around and lift hi s feet to inspect be tween his toes, bend over and spread his buttocks, and squat and cough. Hyberg performed these movements in view of three inmates, two of whom were less than five feet away. On February 13, 2017, Hyberg filed a grievanc e complaining that th is search violated prison regulations. Afterwards , the booths used for the st rip searches were rebuilt and a curtain was installed in one booth. The second strip search at issue was conducted on April 17, 2017. Again, Rittenhouse ordered Hyberg to submit to a strip search at the end of his shift. Defendant Quinn conducted the search, and as before, three other inmates were in the3 common area where the search was performed . Quinn directed Hyberg to the booth with the curtain and said, “You get the cubicl e with the curtain, [j]ust for you[.]” Id. at 18, para. 56 (internal quot ation marks omitted). He required Hyberg to perform the same movements as before, but af ter giving the final command, Quinn immediately stepped back and purposely a llowed another inmate to walk between himself and Hyberg so the othe r inmate could see Hyberg na ked. Surprised, the other inmate raised his hands and said, “Whoa-whoa -whoa,” as he walked out of the search

area. Id. at 19, para. 65 (capitalization omitte d). The next day, curtains were installed on the other booths and a sign wa s displayed, stating, “Stop Read and Listen[.] No Entrance or Exit Without Staff Approval[.]” Id. , para 68. Based on these allegations, Hyberg as serted Fourth Amendment unreasonable search claims agains t Rittenhouse, Enslow, Quinn, an d their supervisor, Defendant Cunningham. Hyberg also brought a Fi rst Amendment retali ation claim against Quinn, alleging Quinn told him to use the booth with the curtain “in a very demeaning and derogatory way” in retalia tion for filing the February 13 grievance. Id. at 28, para. 123. Defenda nts moved to dismiss the su it under Federal Rule of Civil Procedure 12(b)(6), and in his res ponse, Hyberg sought leave to amend his complaint, although he provi ded no new factual allegati ons. He did, however, separately file a “supplement” to his complaint in which he alleged that after he complained about the searches, he stopped receiving monthly performance evaluations for his work at the Seating Factory. Id. at 117. Althou gh he continued working, he averred that when he finally did receive his evaluations, he noticed his4 performance scores were lower than his prev ious scores and that the lower scores coincided with his complaints about the searches. Hyberg therefore sought to bring two additional retaliation claims, one agains t Quinn for giving him lower scores and the other against Enslow for withholding the evaluations. The district court adopted a magistrate judge’s report and recommendation and dismissed the complaint, concluding that Hybe rg failed to state a violation of either the First or the Fourth Amendment. The court also denied him leave to amend the complaint, ruling that amendm ent would be futile because the proposed allegations in the supplement still failed to st ate a First Amendment claim.
II “We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Gee v. Pacheco , 627 F.3d 1178, 1183 ( 10th Cir. 2010). “In reviewing the district court’s dismissal pur suant to Rule 12(b)(6 ), we assume the factual allegations are true and ask whether it is plausible that the plaintiff is entitled to relief.” Gallagher v. Shelton , 587 F.3d 1063, 1068 (10th Cir. 2009). We also must be mindful that: [p]risons are a unique environmen t, and the Supreme Court has repeatedly recognized that the role of the Constitution within their walls is quite limited. Government con duct that would be unacceptable, even outrageous, in another setting may be acceptable, even necessary, in a prison. Consequently, a prisoner cl aim will often not be plausible unless it recites facts that might well be unnecessary in other contexts.
Gee , 627 F.3d at 1185. Accordingly, our anal ysis of the plausibility of Hyberg’s claims must be cognizant of the pr ison context underlyi ng his allegations.5 A. Fourth Amendment Hyberg claims that defendants subject ed him to unreasonable public strip searches in violation of the Fourth Ame ndment. “The Fourth Amendment prohibits only unreasonable searches,” Bell v. Wolfish , 441 U.S. 520, 558 (1979), and while an inmate’s right to privacy “does not vanish altogether,” it “mus t yield to the penal institution’s need to maintain security,” Farmer v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002) (internal quotation marks omitted). I ndeed, the Supreme Court has held that “correctional officials must be permitted to devise reasonable search policies to detect and deter the possessi on of contraband in their facilities.” Florence v. Bd. of Chosen Freeholders , 566 U.S. 318, 328 (2012). In evaluating the reasonableness of a search, in cluding a search of the natu re alleged here, “[c]ourts must consider the scope of the particul ar intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell , 441 U.S. at 559. These factors aim to “[ b]alanc[e] the significant and legitimate security interests of the institution agains t the privacy interest s of the inmates.” Id. at 560. “[A] regulati on impinging on an inmate’s constitu tional rights must be upheld if it is reasonably related to leg itimate penological interests.” Florence , 566 U.S. at 326 (internal quotati on marks omitted). The scope of the searches here was undeni ably invasive. Indeed, “[t]here can be no doubt that a strip s earch is an invasion of pe rsonal rights of the first magnitude.” Chapman v. Nichols , 989 F.2d 393, 395 (10th Ci r. 1993). At the same time, however, there are obvious security con cerns inherent when an inmate will be6 placed in the general prison population. Archuleta v. Wagner , 523 F.3d 1278, 1284 (10th Cir. 2008). Hyberg wa s returning to general population when he was subjected to the searches at the end of his shifts at the Seating F actory. There were therefore legitimate security interest s served by the searches. Mo reover, the searches were conducted in a uniform manne r, following routine protocol , in a designated area with limited access for other inmates and staff. See Farmer , 288 F.3d at 1260 (recognizing a strip search may be unreasonable if conducted in the open, “visible to a number of other inmates and staff,” and without regard for the inmate’s privacy interests); see also id. at 1261 (“[I]nfringements on pr isoners’ constitutional rights must not be arbitrary or irrational, nor an exaggerated response to security needs.” (internal quotation marks omitted)); Daughtery v. Harris , 476 F.2d 292, 294 (10th Cir. 1973) (rejecting c ontention that rectal cavity searches must be conducted by medical doctors in complete privacy). Although Hyberg alle ged Quinn conducted the April 17 search “in a very demeaning and derogatory way,” R. at 28, para. 123, his conclusory allegations do not support an inference of abuse, see Gallagher , 587 F.3d at 1068 (“Conclusory allegations are not enough to withstand a motion to dismiss.”). He alleged Quinn said, “You get the cubicle with the curtain, [j]ust for you,” R. at 18, para. 56 (i nternal quotation ma rks omitted), and then “maliciously” allowed another inmate to walk between them, id. at 19, para. 62. But this is not the type of conduct courts have found to be needlessly intrusive or abusive. Cf., e.g., Hayes v. Marriott , 70 F.3d 1144, 1147 (10th Cir. 199 5) (reversing grant of summary judgment on Fourth Amendment claim where inmate alleged he was subjected to a7 video recorded “body cavity search [conduct ed] in the presence of over 100 people, including female secretar ies and case managers fr om other buildings”); Calhoun v. DeTella , 319 F.3d 936, 940 (7th Cir. 2003) ( holding inmate stated an Eighth Amendment claim by alleging that during s earch, guards made “ribald comments and sexually explicit gestures,” “forced him to perform sexua lly provocative acts,” and female guards “were neither mere passersby nor pe rforming [a] legitimate penological function,” but “were instead i nvited spectators” (int ernal quotation marks omitted)). Balancing the releva nt considerations, Hyberg’s allegations fail to state a plausible violation of th e Fourth Amendment.
B. First Amendment Hyberg also claims Quinn retaliated against him for filing the February 13 grievance by telling him “in a very demeaning and deroga tory way” that the booth with the curtain was just for him. R. at 28, para 123. “[P]rison officials may not retaliate against or harass an inmate be cause of the inmate’s exercise of his constitutional rights.” Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998) (internal quotation marks omitted). The First Amendment protects inmates from retaliation for filing administrative grievances. See Gee , 627 F.3d at 1189. To state a First Amendment retaliation cl aim, an inmate must allege: (1) that [he] was engaged in co nstitutionally protected activity; (2) that the defendant’s actions cause d [him] to suffer an injury that would chill a person of or dinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to [the inmate’s] exercise of constitutionally protected conduct.8 Shero v. City of Grove , 510 F.3d 1196, 1203 (10th Cir. 2007). This third element requires an inmate to estab lish “that but for the retaliat ory motive, the incidents to which he refers . . . woul d not have taken place.” Peterson , 149 F.3d at 1144 (internal quotation marks omitted). Defendants concede Hyberg satisfied th e first element by filing the February 13 grievance. See Aplee. Br. at 16. Nonetheles s, the claim falters on the second element because Quinn’s isolated comment would not cause a person of ordinary firmness to refrain from f iling a grievance. The standa rd for assessing the chilling effect on protected activity is objective, and “a trivial or de minimis injury will not support a retaliat[ion] . . . claim.” Shero , 510 F.3d at 1203 (int ernal quotation marks omitted). Hyberg alleged Quinn perform ed the April 2017 search “in a very demeaning and derogatory way,” R. at 28, para. 123, because he said, “You get the cubicle with the curtain, [j]ust for you,” id. at 18, para. 56 (int ernal quotation marks omitted). But even if Quinn intended this comment to be de rogatory or sarcastic, it was trivial and would not dete r a person of ordinary firmne ss from filing a grievance. See Requena v. Roberts , 893 F.3d 1195, 1211 (10th Cir. 2018) (recognizing that “insulting, disrespectful, or sarcastic comments direct ed at an inmate,” while “unprofessional and unpleasant, ” “do not constitute adve rse action sufficient to support a retaliation claim”). Hyberg fa iled to state a plausi ble First Amendment claim.9 C. Denial of Leave to Amend Finally, Hyberg contends the district court erred in de nying him leave to amend his complaint. Because the district court denied leave to amend on grounds of futility, we review the legal basis for the finding of futility de novo. See Fields v. City of Tulsa , 753 F.3d 1000, 1012 (10th Cir. 2014). “A proposed amendment is futile if the complaint, as amended, would be s ubject to dismissal.” Id. (internal quotation marks omitted). Hyberg sought to add two First Ame ndment retaliation cl aims, one against Quinn for reducing his work performance sc ores and the other against Enslow for withholding his performance evaluations. Although filing a grievance is protected activity for purposes of satisf ying the first element of a retaliation claim, Hyberg’s supplemental allegations fail to satisfy the second elemen t under the particular facts of this case. Indeed, neither the reduction of Hyberg’s scores, nor the withholding of his evaluations, would deter a person of or dinary firmness from filing a grievance under the facts alleged here because both ac tions were entirely inconsequential to Hyberg. The supplemental allegations indicate that he continued working uninterrupted at the Seating Factory, without any ramifications at al l. He alleged that he did not even know Quinn was giving hi m lower scores for al most two years—from April 2017 until January 2019. And while it is unclear whether he knew Enslow was withholding his evaluations during that ti me, there are no allegations that Hyberg requested them or suffered any adverse action because he did not have access to them. Under these particular circumstan ces, the alleged misconduct would not deter10 a person of ordinary firmness from engaging in protected ac tivity. Hyberg’s claims would be subject to dismissal, and therefor e, the district court properly denied him leave to amend.
III The judgment of the district court is affirmed. Hyberg’s motion to proceed without prepayment of fees is granted, and he is re minded of his obligation to continue making partial payments toward his appellate filing fee until the entire balance is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).

Entered for the Court
Bobby R. Baldock Circuit Judge