Toevs v. Reid, et al

Filing

[9877079] Affirmed;Terminated on the merits after submissions without oral hearing;Written, signed, published; Judges Matheson, McKay and Ebel (authoring). Mandate to issue.

FILED
Appellate Case: 10-1535

Document: 01018660743

United States Court of Appeals
Date Filed: 06/20/2011 Page: 1
Tenth Circuit

June 20, 2011
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JANOS TOEVS,
Plaintiff-Appellant,
v.

No. 10-1535

LARRY REID; SUSAN JONES;
CASE MANAGER J. GLIDEWELL;
CASE MANAGER KRISTI MOORE,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:06-CV-01620-CBS-KMT)
Submitted on the briefs: *
Janos Toevs, Plaintiff-Appellant, Pro se.
Andrew M. Katarikawe, Senior Assistant Attorney General, Civil Litigation and
Employment Law Section, John W. Suthers, Attorney General, Denver, Colorado
for Defendants-Appellees.

Before MATHESON, McKAY, and EBEL, Circuit Judges.

*

After examining the briefs and appellate 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 Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

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EBEL, Circuit Judge.

Janos Toevs, proceeding pro se, appeals the district court’s grant of
summary judgment to defendants in his 42 U.S.C. § 1983 civil-rights suit.
Mr. Toevs argues that the court erred in granting qualified immunity to
defendants on his claim that they denied him meaningful periodic reviews during
his lengthy confinement in administrative segregation. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm, although on different grounds than the district
court.
The district court concluded that Mr. Toevs failed to demonstrate that
defendants violated his constitutional rights. We disagree. Based on the record
before this court, we conclude that defendants did not provide Mr. Toevs with the
meaningful periodic reviews to which he was constitutionally entitled because the
substantive reasons why Mr. Toevs was either graduated to a higher level of the
Quality of Life Level Program or denied graduation to a higher level were not
shared with Mr. Toevs. Without providing any meaningful guidance to Mr. Toevs
of how he was progressing to exit from administrative confinement or when he
might anticipate being returned to the general prison population, defendants
violated his constitutional rights. Nevertheless, because at the time, it would not
have been apparent to defendants that the review process would not be considered
meaningful, we conclude that defendants are entitled to qualified immunity and
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judgment in their favor.
I.

BACKGROUND
Mr. Toevs’s lawsuit concerns the Colorado prison system’s Quality of Life

Level Program (QLLP), which is described in Operational Memorandum (OM)
650-100. The QLLP, which is employed at Colorado State Penitentiary (CSP) and
Centennial Correctional Facility (CCF), is “a stratified quality of life program
based on increased levels of privileges for demonstrated appropriate offender
behavior and program compliance.” OM 650-100 § I, Aplt. App. at 610. The
program consists of six levels. Level 1 has the most restrictive conditions, and
each successive level offers the inmate more privileges.
Levels 1 through 3 are classified as administrative segregation.
Accordingly, they are subject to the provisions of Administrative Regulation (AR)
600-02, which governs placement in administrative segregation. AR 600-02
provides for periodic reviews of segregation status. Levels 4 through 6 are
classified as close custody. AR 600-02 does not cover these levels, and
defendants concede that there is no review process applicable to them. After
completing QLLP Level 6, an inmate is eligible to be transferred to the general
prison population. If an inmate spends the minimum amount of time at each
level, he will be in the QLLP for thirteen months and seven days. There is no
maximum amount of time for placement in the QLLP.
Mr. Toevs was placed in the QLLP on March 4, 2002, after attempting to
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escape. By September 2005, he had reached Level 6, but due to poor behavior he
was regressed to Level 1. He again began to progress through the program,
achieving Level 1 on October 7, 2005; Level 2 on October 13, 2005; Level 3 in
either December 2005 or January 2006; and Level 4 on October 15, 2007. On
January 31, 2009, Mr. Toevs completed Level 6 and graduated from the QLLP.
In March 2009, he rejoined the general prison population.
In the relevant pleading, the Third Amended Complaint, Mr. Toevs
complained that during his placement in the QLLP from 2005 to 2009 he was
deprived of a liberty interest without due process. 1 Specifically, he alleged that
Jean Glidewell (his case manager from September 2005 to February 2006) and
Kristi Moore (his case manager from March to June 2006) denied him his right to
a meaningful periodic review of his confinement in administrative segregation
because the reviews they gave him were perfunctory, meaningless, and all said the
same thing. With regard to Larry Reid (the warden at CSP/CCF from
September 1, 2002, until October 1, 2007) and Susan Jones (Mr. Reid’s successor
as CSP/CCF warden), he complained that their enforcement of OM 650-100
mooted any possible due process that could have been afforded by AR 600-02.
He further alleged that OM 650-100 rendered any reviews meaningless because

1

Although Mr. Toevs initially was placed in the QLLP in March 2002, the
district court held that any claims for periods before August 2004 were barred by
the applicable statute of limitations. Thus, the Third Amended Complaint focused
on events from 2005 to 2009. Mr. Toevs does not appeal this ruling.
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they could not result in his immediate release from the QLLP. And finally, he
complained that OM 650-100 did not provide for reviews when he was in QLLP
Levels 4 through 6 in February to September 2005 and October 2007 to January
2009. All of his claims were asserted against defendants in their individual
capacities. He requested compensatory and punitive damages and declaratory
relief.
The parties consented to have the case heard by a magistrate judge. See
28 U.S.C. § 636(c). In evaluating the parties’ cross-motions for summary
judgment, the district court held defendants were entitled to qualified immunity.
It held that the review process was constitutionally adequate, and thus Mr. Toevs
had failed to establish that Ms. Glidewell and Ms. Moore deprived him of a
constitutional right. It also held that there was no showing of Mr. Reid’s and
Ms. Jones’s personal participation in the alleged constitutional violations; there
was no evidence that they participated in any of the reviews or that they had any
knowledge of his circumstances. Therefore, the court concluded that Mr. Toevs
failed to establish that Mr. Reid and Ms. Jones deprived him of a constitutional
right. The court further determined that the allegations that OM 650-100 mooted
any protections provided by AR 600-02 were conclusory. And, the court
concluded, its decision that the reviews were constitutionally adequate rebutted
Mr. Toevs’s argument that, because they could not have secured his immediate

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release from the QLLP, the reviews were meaningless. 2 Mr. Toevs appeals.
II.

ANALYSIS
Mr. Toevs argues that the district court failed to give his filings the liberal

construction due a pro se litigant. He believes the court missed the focal points
of his argument: (1) that his extended placement in the QLLP violated his right
to due process because at Levels 1 through 3 he did not receive any meaningful
reviews, by which he means reviews that could result in his immediate release to
the general population; and (2) at Levels 4 through 6 he did not receive any
reviews at all. In part, he attributes the court’s errors to its denial of his requests
for appointed counsel. Without counsel, he asserts, he was unable to frame his
arguments or conduct discovery effectively.
A.

Standard of Review and Qualified Immunity

We review the district court’s grant of summary judgment de novo. See
Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). Because judgment in
this case was based on qualified immunity, however, “the summary judgment
standards are subject to a somewhat different analysis from other summary
judgment rulings.” Id. “The doctrine of qualified immunity shields government

2

The district court concluded that it need not consider defendants’ argument
that Mr. Toevs had failed to exhaust his administrative remedies. It further stated
that, if it were to consider the issue, there may be a genuine issue of material fact
as to whether there was an administrative appeal process available to Mr. Toevs.
Defendants do not argue administrative exhaustion on appeal, so we do not
consider the issue.
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officials performing discretionary functions from liability for damages ‘insofar as
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Boles v. Neet, 486 F.3d 1177,
1180 (10th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Thus, to avoid judgment for the defendant based on qualified immunity, “the
plaintiff must show that the defendant’s actions violated a specific statutory or
constitutional right, and that the constitutional or statutory rights the defendant
allegedly violated were clearly established at the time of the conduct at issue.”
Steffey, 461 F.3d at 1221 (quotation omitted); Pearson v. Callahan, 555 U.S. 223,
129 S. Ct. 808, 815-16 (2009). We may address these questions in whatever order
is appropriate under the circumstances. Pearson, 129 S. Ct. at 818. We view the
facts in the light most favorable to the plaintiff, Mr. Toevs. See Kirkland v.
St. Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006).
B.

Due Process Claim
1.

Violation of a Constitutional Right

We turn first to the question of whether defendants violated a specific
constitutional right. Mr. Toevs alleges a violation of his right to due process.
a.

Existence of a Liberty Interest

The first issue in the due-process context is whether the plaintiff has
established a protected interest (in this case a liberty interest). See Steffey,
461 F.3d at 1221; Kirkland, 464 F.3d at 1189. The Due Process Clause “itself
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does not give rise to a liberty interest in avoiding transfer to more adverse
conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In
the prison context, state regulations can create protected liberty interests, but such
interests are “generally limited to freedom from restraint which, while not
exceeding the 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
significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). The
district court “determined that because Mr. Toevs alleged placement in the QLLP
for a lengthy period of time without meaningful periodic reviews, he may state a
claim for atypical and significant restraint deserving due process protections.”
Toevs v. Reid, No. 06-cv-01620-CBS-KMT, 2010 WL 4388191, at *5 (D. Colo.
Oct. 28, 2010). On appeal, defendants do not take issue with the court’s
conclusion that Mr. Toevs’s seven-year placement in the QLLP could be
sufficiently atypical and significant to create a liberty interest. We determine that
Mr. Toevs adequately established a liberty interest.
In Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d
1334, 1342 (10th Cir. 2007), we identified certain relevant, albeit non-dispositive,
factors in this liberty-interest inquiry: “whether (1) the segregation relates to and
furthers a legitimate penological interest, such as safety or rehabilitation; (2) the
conditions of placement are extreme; (3) the placement increases the duration of
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confinement . . .; and (4) the placement is indeterminate.” “[A]ny assessment
must be mindful of the primary management role of prison officials who should
be free from second-guessing or micro-management from the federal courts.” Id.
Factors one and three work against the existence of a liberty interest. The
segregation in this case certainly relates to and furthers a legitimate penological
interest (Mr. Toevs originally was committed to the QLLP because of an escape
attempt, and he was regressed to QLLP Level 1 in September 2005 due to
behavioral problems). Further, given that he is serving a life sentence, the
placement did not increase the duration of his confinement.
As for factor two, it is not entirely clear whether the conditions of
placement were extreme, but at a minimum there is a genuine issue of material
fact regarding the question. Mr. Toevs provided evidence that the conditions at
all levels of the QLLP were similar to the conditions described in Wilkinson,
545 U.S. at 214-16, where the Supreme Court concluded that assignment to
Ohio’s supermax facility was an atypical and significant hardship, see id. at
223-24. Defendants denied the accuracy of Mr. Toevs’s description, but they
provided little specific evidence of his actual conditions of confinement. Instead,
they generally referred to the QLLP’s general provisions for conditions of
confinement, which are set forth in OM 650-100 § IV.A. But this section does
not address several of the conditions alleged by Mr. Toevs, including the amount
of time spent in his solitary cell, the provision of solid metal cell doors with metal
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strips on the sides and bottom to prevent communication, and the requirement that
he eat all his meals in his cell. Further, OM 650-100 § IV.A provides that the
listed conditions “may be adjusted and/or modified based on offender behavior
. . .,” and specific portions of the policy also state that the conditions described
therein may be adjusted. Aplt. App. at 611. Thus, OM 650-100 § IV.A may or
may not be an accurate description of Mr. Toevs’s actual conditions of
confinement.
In these circumstances, we consider the fourth DiMarco factor to be
determinative. Placement in the QLLP is indefinite. Although there is a
minimum time to complete the program, there is no maximum, and there is no
restriction on how many times a prisoner may be regressed to lower levels. When
Mr. Toevs was placed in the QLLP he had no knowledge of any end date, and as
it turned out, he was in the QLLP for nearly seven years. It appears from the
record that the average length of placement in the QLLP program is twenty-nine
months, which is much less than Mr. Toevs’s placement.
We conclude that Mr. Toevs’s indefinite placement that actually lasted for
years, in the type of conditions he alleged, established a protected liberty interest.
See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006) (“The district court
abused its discretion in concluding that there was no arguable basis that a
three-year period of administrative segregation—during which time Fogle was
confined to his cell for all but five hours each week and denied access to any
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outdoor recreation—is not ‘atypical.’”); see also Shoats v. Horn, 213 F.3d 140,
144 (3d Cir. 2000) (“Based on this record, we have no difficulty concluding that
eight years in administrative custody, with no prospect of immediate release in
the near future, is ‘atypical’ in relation to the ordinary incidents of prison
life[.]”); McClary v. Coughlin, 87 F. Supp. 2d 205, 208 n.2, 209 (W.D.N.Y. 2000)
(finding that four-year placement in administrative segregation, in the same harsh
conditions as punitive segregation, created a liberty interest).
b.

Adequacy of Process Afforded Mr. Toevs
1.

Mr. Toevs had a right to meaningful periodic
review while he was confined to the QLLP.

Because Mr. Toevs has established a liberty interest, we proceed to the next
issue, which focuses on the process that was afforded to him. See Wilkinson,
545 U.S. at 224; Kirkland, 464 F.3d at 1189. Mr. Toevs does not contest the
adequacy of the process by which he initially was committed to the QLLP or by
which he was regressed to Level 1 in September 2005. Rather, he argues that
while he was in the QLLP from 2005 to 2009, he was denied his right to a
meaningful periodic review of his status.
The periodic-review requirement stems from Hewitt v. Helms, 459 U.S. 460
(1983), abrogated in part on other grounds by Sandin, 515 U.S. at 483. In
Hewitt, the Supreme Court stated, “administrative segregation may not be used as
a pretext for indefinite confinement of an inmate. Prison officials must engage in

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some sort of periodic review of the confinement of such inmates.” Id. at 477 n.9.
The review need not be extensive, as the Court continued:
This review will not necessarily require that prison officials permit
the submission of any additional evidence or statements. The
decision whether a prisoner remains a security risk will be based on
facts relating to a particular prisoner—which will have been
ascertained when determining to confine the inmate to administrative
segregation—and on the officials’ general knowledge of prison
conditions and tensions, which are singularly unsuited for “proof” in
any highly structured manner.
Id. But the review must be meaningful; it cannot be a sham or a pretext. See id.;
Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986); McClary,
87 F. Supp. 2d at 214.
Mr. Toevs contends that a meaningful review must be one that can result in
his immediate release from the QLLP to the general population. In light of the
circumstances presented here, we disagree. The cases Mr. Toevs consults to form
his definition of a meaningful review did not involve prisoners who were in
stratified incentive programs such as the QLLP. See Mackey v. Dyke, 29 F.3d
1086 (6th Cir. 1994); Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975). In those
cases, there were only two choices; either the prisoner was in administrative
segregation or he was in the general population. Naturally, then, when the only
alternative to segregation was the general population, the courts referred to a
review that was capable of releasing the inmate into the general population. But
here there were six levels within the QLLP, and Mr. Toevs had no right to rejoin

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the general population before he completed all six levels. Therefore, he did not
have a right to an interim review capable of prematurely terminating his
participation in the QLLP at any time before the completion of the sixth level.
“Unlike punitive segregation, including punitive isolation which is imposed
by way of punishment for past misconduct, administrative segregation is not
punitive and it looks to the present and the future rather than to the past.” Kelly,
525 F.2d at 399. Thus, a “meaningful” review is one that evaluates the prisoner’s
current circumstances and future prospects, and, considering the reason(s) for his
confinement to segregation, determines, without preconception, whether that
placement remains warranted. As one scholar has put it, “Hewitt’s requirement of
a meaningful periodic review presumes that the reviewing entity considers
whether the prisoner’s conduct during the period since the most recent security
review warrants reclassification. Consideration of behavior is an integral
component of a fair and meaningful hearing.” Jules Lobel, Prolonged Solitary
Confinement and the Constitution, 11 U. Pa. J. of Const. L. 115, 126-27 (2008).
In the context of a stratified incentive program such as the QLLP, the review
would consider whether the prisoner is eligible to move to the next level or, if the
prisoner already is at the highest level, if he or she is eligible to graduate from the
program.
Further, “what would be required for an intelligent and meaningful review
of the case of one inmate might not be required in the case of another.” Kelly,
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525 F.2d at 400. Where, as here, the goal of the placement is behavior
modification, the review should provide a guide for future behavior (i.e., it should
give the prisoner some idea of the requirements for, and his progress toward,
more favorable placement). See Wilkinson, 545 U.S. at 226 (noting that Ohio’s
requirement of a statement of reasons “serves as a guide for future behavior”);
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 15 (1979)
(noting that prisoners denied parole were told the reason “as a guide to the inmate
for his future behavior”). “The statement of reasons must explain what the
prisoner must do to work [his] way out of solitary confinement. Otherwise, the
statement would not serve the function of providing the prisoner with a ‘guide for
future behavior.’” Lobel, 11 U. Pa. J. of Const. L. at 127.
In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court
instructed the lower courts to examine “the probable value, if any, of additional or
substitute procedural safeguards” and “the fiscal and administrative burdens [on
the government] that the additional or substitute procedural requirement would
entail.” The value of requiring an explicit advisement of progress through the
QLLP program is high, in that it promotes the ultimate goal of a
behavior-modification program. Moreover, the administrative burden on the
government should be relatively low, as the QLLP already requires officials to
track prisoners’ progress and evaluate their prospects for promotion to the next
level.
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A meaningful review, however, does not require giving the inmate an
opportunity to submit additional testimony or evidence. See Hewitt, 459 U.S. at
477 n.9. And if the relevant circumstances truly have not changed, the fact that
the review form says nothing different will not preclude a review from being
considered meaningful. See Edmonson v. Coughlin, 21 F. Supp. 2d 242, 253
(W.D.N.Y. 1998).
2.

Mr. Toevs did not receive meaningful periodic
reviews between 2005 and 2009.
A. Levels 1 through 3

Having determined the requirements for a meaningful periodic review, we
must determine whether the reviews given to Mr. Toevs at Levels 1, 2, and 3
starting in 2005 meet this standard. It is a close question. As Mr. Toevs
complains, the review forms largely contain the same information, with
occasional updates. But defendants contend that the review forms reflect only
part of the review process.
Ms. Moore and Ms. Glidewell submitted affidavits stating that “[a]n
inmate’s periodic review is recorded on a form prescribed by AR 600-02. The
contents of this form do not reflect all factors considered in the inmate’s review,
but only document significant benchmarks in the inmate’s progress through the

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QLLP.” Aplt. App. 607; 649. 3
Inmates’ periodic reviews are initiated by case managers, and consist
of a review of information obtained from the case manager’s contacts
with the inmate during the review period, a review of Chronlog
reports, chrons entered by housing staff, and incident reports, if any.
The reviews also consider whether the reasons for the inmate’s initial
placement in administrative segregation still exist. If the case
manager determines from a review that the inmate has met all
expectations, he or she recommends a progression to the next level in
the QLLP. If not, he or she recommends no change.
Id. at 608; see also id. at 650.
This evidence indicates that the reviews focused on appropriate factors, and
we likely would consider the process meaningful, but for one serious
omission—the reviews never informed Mr. Toevs of the reasons why he was
recommended for or denied progression, so that he would have a guide for his
future behavior. For example, he spent twenty-one months at Level 3 (eighteen
more than the minimum) before being promoted to Level 4. The QLLP specifies
certain prerequisites for promotion to Level 4. During this time, however, his
review forms never stated why he was being held at Level 3 or what he had to do
to move to Level 4. While certain classes were recommended, there was no
indication that they had to be completed before progression (and in fact,
Mr. Toevs was progressed from Level 2 to Level 3 before he completed classes
that were then being recommended). Accordingly, the reviews at Levels 1

3

Defendants initially submitted an unsigned affidavit for Ms. Glidewell, but
later submitted a signed version.
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through 3 were not meaningful.
B.

Levels 4 through 6

Levels 4, 5, and 6 present an easier question, given defendants’ concession
that no reviews were conducted at these levels. 4 They contend that reviews are
not necessary because these levels are classified as “close custody” rather than
“administrative segregation.” But the evidence of record, including Mr. Toevs’s
verified statement and defendants’ interrogatory answers, indicates that the basic
conditions of confinement remain the same for all QLLP levels. Thus, we see no
reason why Levels 4 through 6 would be exempt from Hewitt’s prescription of
periodic review. And without any reviews, it is impossible for prisoners to track
their progress through the QLLP. From this record, for example, it is impossible
to determine when Mr. Toevs moved from Level 4 to Level 5 and from Level 5 to
Level 6, why he was held at those levels for however long he was held there, and

4

It appears that Ms. Moore and Ms. Glidewell were no longer Mr. Toevs’s
case managers by the time he was promoted to Level 4. Thus, any claim
regarding the lack of review at Levels 4 through 6 implicates only Mr. Reid and
Ms. Jones.
In a related argument, Mr. Reid and Ms. Jones argue that there is no
evidence of any personal involvement by them in any deprivation of Mr. Toevs’s
rights. The evidence belies this argument. Mr. Toevs challenges the QLLP,
which is established by OM 650-100. Mr. Reid signed the copy of OM 650-100
in the appellate record, indicating that he adopted it. He also was made aware of
Mr. Toevs’s circumstances by a letter in the summer of 2006. Ms. Jones, as
Mr. Reid’s successor, apparently had the power to amend OM 650-100 had she
chosen. In addition, Ms. Jones signed at least one of Mr. Toevs’s review forms.
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how it was determined that he was eligible to graduate from the QLLP.
Essentially, then, at Levels 4 through 6 prisoners are being held indefinitely,
without review, in the same basic conditions as Levels 1 through 3, and
defendants’ only justification is that the custody level has a different name. In
these circumstances, we have no hesitation in concluding that the failure to give
Mr. Toevs any reviews at Levels 4, 5, and 6 violated his right to due process.
2.

The law was not clearly established.

Even though Mr. Toevs did not receive meaningful periodic reviews, we
conclude that defendants are entitled to judgment based on qualified immunity
because it was not clearly established in 2005 through 2009 that the review
process was inadequate. “Despite their participation in . . . constitutionally
impermissible conduct, respondents may nevertheless be shielded from liability
for civil damages if their actions did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow, 457 U.S. at 818).
“Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be as the
plaintiff maintains.” Walker v .City of Orem, 451 F.3d 1139, 1151 (10th Cir.
2006) (quotation omitted). It is not necessary, however, to find cases that are
“fundamentally similar” or even “materially similar,” because “officials can still
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be on notice that their conduct violates established law even in novel factual
circumstances.” Hope, 536 U.S. at 741. The “salient question . . . is whether the
state of the law [at the time of the actions] gave respondents fair warning that
their [conduct] was unconstitutional.” Id.
Since Hewitt, it has been clearly established that prisoners cannot be placed
indefinitely in administrative segregation without receiving meaningful periodic
reviews. 459 U.S. at 477 n.9. This court, however, has not previously interpreted
“meaningful” to require officials to inform prisoners of the reasons for their
continued placement, so as to provide a guide for future behavior. Moreover, this
court has never considered the due-process implications of a stratified incentive
program such as the QLLP. Accordingly, we cannot conclude that the state of the
law from 2005 to 2009 gave defendants fair warning that the QLLP review
process was not meaningful, or that the lack of reviews at QLLP Levels 4 through
6 was a due-process violation. And because the law was not clearly established,
defendants are entitled to judgment based on qualified immunity.
C.

Appointment of Counsel

“We review a district court’s refusal to appoint counsel for an indigent
prisoner in a civil case for an abuse of discretion.” Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). “Only in those extreme cases where
the lack of counsel results in fundamental unfairness will the district court’s
decision be overturned.” Id. (quotation omitted). The factors to be considered
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Appellate Case: 10-1535

Document: 01018660743

Date Filed: 06/20/2011

Page: 20

include “the merits of a prisoner’s claims, the nature and complexity of the
factual and legal issues, and the prisoner’s ability to investigate the facts and
present his claims.” Id.; see also Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995).
Mr. Toevs argues that he lost his case because he was not able to frame his
arguments effectively and encountered problems in discovery that counsel would
have been able to surmount. “While we do not quarrel with [his] assertion that
having counsel appointed would have assisted him in presenting his strongest
possible case,” Rucks, 57 F.3d at 979, we do not conclude that the denial of
counsel was an abuse of discretion. As the district court found, Mr. Toevs
capably litigated his case. In fact, we compliment him on filing appellate briefs
that clearly articulate his arguments and ably discuss the applicable precedents. 5
Our affirmance is not due to a poor presentation or an inadequate record, but
because the law was not clearly established at the time of the events at issue.
III.

CONCLUSION
Because the standards for meaningful periodic reviews during extended

placement in a stratified incentive program involving confinement to
administrative segregation were not previously clearly established in this circuit,
defendants are entitled to qualified immunity, and the judgment of the district
court is AFFIRMED.
5

Also, in a prior related appeal, Mr. Toevs was successful in challenging the
district court’s dismissal of his complaint. See Toevs v. Reid, 267 F. App’x 817
(10th Cir. 2008).
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