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.) 

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ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Darrel Alan Hyberg, Jr., appeals the dismissal of his pro se complaint alleging 

prison staff subjected him to retaliation and unreasonable strip searches in violation 

of his First and Fourth Amendment rights. We affirm. 

I 

 Hyberg is an inmate at the Sterling Correctional Facility, where he works at 

the Colorado Correctional Industries Seating Factory. According to the complaint, 

 * 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 

February 21, 2020

Christopher M. Wolpert 

Clerk of Court
2 

“[s]trip searches are a routine 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 especially 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 completing his shift at the Seating Factory. 

Defendant Enslow conducted the search. Hyberg entered the common area used for 

strip searches, where three other inmates were present. He entered one of four 

booths, which “provided no real privacy due to the height” and depth of the walls, 

and because there were “no screens 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 his feet to inspect between 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 grievance complaining that this search violated 

prison regulations. Afterwards, the booths used for the strip 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 the 
3 

common area where the search was performed. Quinn directed Hyberg to the booth 

with the curtain and said, “You get the cubicle with the curtain, [j]ust for you[.]” Id.

at 18, para. 56 (internal quotation marks omitted). He required Hyberg to perform 

the same movements as before, but after giving the final command, Quinn 

immediately stepped back and purposely allowed another inmate to walk between 

himself and Hyberg so the other inmate could see Hyberg naked. 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 omitted). The next day, curtains were 

installed on the other booths and a sign was displayed, stating, “Stop Read and 

Listen[.] No Entrance or Exit Without Staff Approval[.]” Id., para 68. 

Based on these allegations, Hyberg asserted Fourth Amendment unreasonable 

search claims against Rittenhouse, Enslow, Quinn, and their supervisor, Defendant 

Cunningham. Hyberg also brought a First Amendment retaliation claim against 

Quinn, alleging Quinn told him to use the booth with the curtain “in a very 

demeaning and derogatory way” in retaliation for filing the February 13 grievance. 

Id. at 28, para. 123. Defendants moved to dismiss the suit under Federal Rule of 

Civil Procedure 12(b)(6), and in his response, Hyberg sought leave to amend his 

complaint, although he provided no new factual allegations. 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. Although he continued 

working, he averred that when he finally did receive his evaluations, he noticed his 
4 

performance scores were lower than his previous scores and that the lower scores 

coincided with his complaints about the searches. Hyberg therefore sought to bring 

two additional retaliation claims, one against 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 Hyberg 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 amendment would be futile because the proposed allegations in 

the supplement still failed to state 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 pursuant 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 environment, and the Supreme Court has 

repeatedly recognized that the role of the Constitution within their walls 

is quite limited. Government conduct that would be unacceptable, even 

outrageous, in another setting may be acceptable, even necessary, in a 

prison. Consequently, a prisoner claim 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 analysis of the plausibility of Hyberg’s 

claims must be cognizant of the prison context underlying his allegations. 
5 

A. Fourth Amendment 

Hyberg claims that defendants subjected him to unreasonable public strip 

searches in violation of the Fourth Amendment. “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 “must 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). Indeed, the Supreme Court has 

held that “correctional officials must be permitted to devise reasonable search 

policies to detect and deter the possession of contraband in their facilities.” Florence 

v. Bd. of Chosen Freeholders, 566 U.S. 318, 328 (2012). In evaluating the 

reasonableness of a search, including a search of the nature alleged here, “[c]ourts 

must consider the scope of the particular 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 against the privacy interests of the inmates.” Id. at 

560. “[A] regulation impinging on an inmate’s constitutional rights must be upheld if 

it is reasonably related to legitimate penological interests.” Florence, 566 U.S. at 

326 (internal quotation marks omitted). 

The scope of the searches here was undeniably invasive. Indeed, “[t]here can 

be no doubt that a strip search is an invasion of personal rights of the first 

magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir. 1993). At the same 

time, however, there are obvious security concerns inherent when an inmate will be 
6 

placed in the general prison population. Archuleta v. Wagner, 523 F.3d 1278, 1284 

(10th Cir. 2008). Hyberg was returning to general population when he was subjected 

to the searches at the end of his shifts at the Seating Factory. There were therefore 

legitimate security interests served by the searches. Moreover, the searches were 

conducted in a uniform manner, 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 prisoners’ 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 contention that rectal cavity searches must be conducted 

by medical doctors in complete privacy). Although Hyberg alleged 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 (internal quotation marks 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. 1995) (reversing grant of summary 

judgment on Fourth Amendment claim where inmate alleged he was subjected to a 
7 

video recorded “body cavity search [conducted] in the presence of over 100 people, 

including female secretaries and case managers from other buildings”); Calhoun v. 

DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (holding inmate stated an Eighth 

Amendment claim by alleging that during search, guards made “ribald comments and 

sexually explicit gestures,” “forced him to perform sexually provocative acts,” and 

female guards “were neither mere passersby nor performing [a] legitimate 

penological function,” but “were instead invited spectators” (internal quotation marks 

omitted)). Balancing the relevant considerations, Hyberg’s allegations fail to state a 

plausible violation of the 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 derogatory 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 because 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 claim, an inmate must allege: 

(1) that [he] was engaged in constitutionally protected activity; 

(2) that the defendant’s actions caused [him] to suffer an injury that 

would chill a person of ordinary 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 establish “that but for the retaliatory motive, the incidents to 

which he refers . . . would not have taken place.” Peterson, 149 F.3d at 1144 

(internal quotation marks omitted). 

Defendants concede Hyberg satisfied the first element by filing the February 

13 grievance. See Aplee. Br. at 16. Nonetheless, the claim falters on the second 

element because Quinn’s isolated comment would not cause a person of ordinary 

firmness to refrain from filing a grievance. The standard 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 (internal quotation marks 

omitted). Hyberg alleged Quinn performed 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 (internal quotation marks 

omitted). But even if Quinn intended this comment to be derogatory or sarcastic, it 

was trivial and would not deter a person of ordinary firmness from filing a grievance. 

See Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018) (recognizing that 

“insulting, disrespectful, or sarcastic comments directed at an inmate,” while 

“unprofessional and unpleasant,” “do not constitute adverse action sufficient to 

support a retaliation claim”). Hyberg failed to state a plausible First Amendment 

claim. 
9 

C. Denial of Leave to Amend 

Finally, Hyberg contends the district court erred in denying 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 subject to dismissal.” Id. (internal 

quotation marks omitted). 

Hyberg sought to add two First Amendment retaliation claims, one against 

Quinn for reducing his work performance scores and the other against Enslow for 

withholding his performance evaluations. Although filing a grievance is protected 

activity for purposes of satisfying the first element of a retaliation claim, Hyberg’s 

supplemental allegations fail to satisfy the second element 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 ordinary firmness from filing a grievance 

under the facts alleged here because both actions were entirely inconsequential to 

Hyberg. The supplemental allegations indicate that he continued working 

uninterrupted at the Seating Factory, without any ramifications at all. He alleged that 

he did not even know Quinn was giving him lower scores for almost two years—from 

April 2017 until January 2019. And while it is unclear whether he knew Enslow was 

withholding his evaluations during that time, there are no allegations that Hyberg 

requested them or suffered any adverse action because he did not have access to 

them. Under these particular circumstances, the alleged misconduct would not deter 
10 

a person of ordinary firmness from engaging in protected activity. Hyberg’s claims 

would be subject to dismissal, and therefore, 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 reminded 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