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

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata , and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DERECK E. CHAPPELL, Plaintiff-Appellant, v. DAVID R. McKUNE, Warden of Lansing Correctional Facility; JOHN C. CALLISON, Former Deputy Warden of Programs and Operations of L.C.F.; R. A. STUPAR, Deputy Warden of Programs and Operations of L.C.F.; ROGER BONNER, CSI of Intelligence and Investigation Unit of L.C.F.; MICHAEL A. NELSON, Warden of El Dorado Correctional Facility, Defendants-Appellees. No. 96-3359 (D.C. No. 95-CV-3467) (District of Kansas)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.- 2 -

Dereck Chappell filed suit against Kansas state pri son officials under 42 U.S.C. § 1983. He alleged that his right to due pr ocess was violated when he was placed in administrative segregation for an extende d term without a hearing and when his visitation privileges were suspended for ayear. (R. 2.) The district court sua sponte dismissed his complaint for failur e to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1); Fed. R. Civ. P. 12(b)(6). We review de novo the dismissal of a complaint for failure to state a claim. See Riddle v. Mondragon , 83 F.3d 1197, 1201 (10th Cir. 1996); see also McGore v. Wrigglesworth , 114 F.3d 601, 604 (6th Cir. 1997) (discussing standards of review under 28 U.S.C. § 1915A). Dismissal of a pr o se complaint is proper only where it is obvious that plaintiff cannot prevail o n the facts he has alleged and it would be futile to allow him an opportunity to amen d. See Whitney v. New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997). Further, w e liberally construe a pro se plaintiff’s pleadings. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). Because we believe that the district court erred in dismissing this complaint for failure to state a claim, we reverse and remand forfurther proceedings. A. Administrative Segregation Chappell alleges that officials at Lansing Correcti onal Facility placed him in administrative segregation without a hearing and that he has remained there on “Other Security Risk” status for well over two year s. (R. 2 at 4-5; Aplnt’s Br. at- 3 -

2, 5.) Chappell argues that imposing this extended term of administrative segregation without a hearing violates his right to due process. The district court correctly determined that Sandin v. Conner , 515 U.S. 472 (1995), controls Chappell’s due process claim. In Sandin , the Supreme Court held that a state’s creation of a liberty interest “will generally be limited to freedom from restraint which, while not exceeding t he sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and signifi cant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484 (internal citations omitted). Courts have held or assumed that extende d terms of segregation may constitute an “atypical and significant hardship” d epending on the conditions of confinement. See Bryan v. Duckworth , 88 F.3d 431, 433 (7th Cir. 1996); Williams v. Fountain , 77 F.3d 372, 374 n.3 (11th Cir.), cert. denied , 117 S. Ct. 367 (1996). In Clemmons v. Thomas , Nos. 94-3172 & 94-3173, 1996 WL 282304 (10th Cir. May 29, 1996) (unpublished order and judgment) , we recognized that Sandin suggests that administrative segregation generally does not implicate a liberty interest. Id. at *4. We remanded for factfinding, however, beca use the record in Clemmons did not include the conditions of Clemmons’s confi nement and thus did not reveal whether Clemmons suffered an “atypic al and significant hardship.”- 4 -

Id. . Other courts have also noted the fact-specific n ature of the Sandinanalysis. See Beverati v. Smith , 120 F.3d 500, 503 (4th Cir. 1997); Frazier v. Cou ghlin , 81 F.3d 313, 317 (2d Cir. 1996); Whitford v. Boglino , 63 F.3d 527, 533 (7th Cir. 1995) (per curiam). The state argues on appeal that Chappell has not su ffered an “atypical and significant hardship” because Kansas regulations pr ovide that prisoners in administrative segregation are to be treated as nea rly as possible like those in the general population. However, the record does not i ndicate whether the conditions under which Chappell is incarcerated reflect those regulations. See Brooks v. DeFasi , 112 F.3d 46, 49 (2d Cir. 1997). Although Clemmon s was an unpublished order and judgment without binding precedential for ce, we are persuaded by its reasoning that we must remand for factfinding. Non e of our published decisions interpreting Sandinsuggest that we should hold to the contrary. In P enrod v. Zavaras , 94 F.3d 1399, 1406-07 (10th Cir. 1996), for examp le, the record was sufficiently developed to allow this court to evalu ate the plaintiff’s conditions of confinement. In Talley v. Hesse , 91 F.3d 1411, 1412 (10th Cir. 1996), the plaintiff was given a hearing before being placed i n administrative segregation. Consequently, we reverse the district court’s dismi ssal of Chappell’s claim and remand to allow the district court to determine the conditions of Chappell’s confinement. The court should determine whether th ose conditions constitute an- 5 -

“atypical and significant hardship” sufficient to c onfer upon Chappell a liberty interest, especially given the extended period Chap pell has been placed in administrative segregation. Further, we note that Chappell’s complaint raises a dditional allegations that the district court did not previously resolve, incl uding claims that his placement in segregation was retaliatory in nature and that h e suffered equal protection violations. (R. 2 at 4-5, 10.) On remand the dist rict court should address these issues as well. B. Visitation Privileges Chappell also alleges that he was unconstitutionall y deprived of all visitation privileges for a period of a year after he was caught with contraband (fourteen bags of “leafy green vegetation” (R. 23 at 1)) following a visit. The district court held that the restriction of plainti ff’s visitation rights was consistent with the prison’s regulations and was a reasonable response to Chappell’s abuse of visitation. (R. 23 at 3.) It dismissed the cla im sua sponte. (R. 23 at 3.) “[W]hen a prison regulation impinges on inmates’ co nstitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley , 482 U.S. 78, 89 (1987). Assuming that Chappell h as a constitutional right to visitation of some degree, we are convinced that the suspension at issue here was reasonably related to the prison’s legitimate interests- 6 -

in preventing prisoners and their visitors from introducing contraband into the prison. Consequently, the district court’s decisio n to dismiss this claim is affirmed. AFFIRMED in part, REVERSED in part and REMANDED forfurther proceedings.

The mandate shall issue forthwith. ENTERED FOR THE COURT

David M. Ebel Circuit Judge