FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 23, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 LARRY ALLEN THOMPSON,

       Plaintiff - Appellant,

 v.                                                         No. 18-1257
                                                   (D.C. No. 1:18-CV-00588-LTB)
 JASON LENGERICH, Warden, Buena                               (D. Colo.)
 Vista Corr. Fac.; JENNIFER HANSEN,
 BVCF Security Svc. Captain; WILLIAM
 CATTELL, BVCF East Unit Supervisor,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MORITZ, and EID, Circuit Judges.
                  _________________________________

      Larry Allen Thompson, a Colorado inmate proceeding pro se, appeals from the

district court’s determination on initial screening that his 42 U.S.C. § 1983

conditions-of-confinement claims are legally frivolous. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm in part and reverse in part, and we remand for further

proceedings.


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  BACKGROUND

      Thompson is incarcerated in Colorado Department of Corrections’ (CDOC)

Buena Vista Correctional Facility (BVCF). His complaint arises from two conditions

of his confinement at BVCF, which he states is one of Colorado’s oldest prisons.

      First, BVCF’s lower East Unit has communal showers with no walls or privacy

partitions. As a result of childhood abuse, Thompson has been diagnosed with

Post-Traumatic Stress Syndrome/Disorder (PTSS/D) and cannot shower with other

male inmates, many of whom are sex offenders. CDOC’s Administrative Regulation

(A.R.) #100-40, passed to implement the Prison Rape Elimination Act, 34 U.S.C.

§§ 30301-30309, and its accompanying regulations, see 28 C.F.R. Pt. 115, requires

prisons to allow inmates who self-identify as transgender or intersex the opportunity

to shower separately from other offenders. The federal regulations and A.R. #100-40

do not provide for private showers for other inmates such as Thompson who have

special needs.

      On September 16 or 17, 2017, Thompson was notified that he was being

moved to the lower East Unit. He spoke with defendant William Cattell, the East

Unit Supervisor, about his PTSS/D and his concerns about the communal showers.

Cattell participated in Thompson’s transfer and denied his grievance regarding the

communal showers, stating that he could have a private shower if he identified as

transgender or intersex.

      Thompson moved to the lower East Unit on September 19. That day, he

declared a “Mental Health Emergency.” Defendant Jennifer Hansen, a

                                          2
Custody/Control Manager, confronted Thompson “about what is, and/or is not

considered by the administration to be a mental health emergency or issue.” R. at 58.

She “informed [Thompson] in no uncertain terms that [his] ‘safety concerns’ were

‘irrelevant,’ and the fact that [he] ‘. . . doesn’t want to shower with other men is not

my (her) problem!’” 

not to shower communally, and staff did not force him to

shower, so he did not shower for approximately 25 days.1 During this time,

defendant Jason Lengerich, BVCF’s warden, communicated with Thompson’s wife,

stating that Thompson would not be granted a private shower because he did not

self-report as being transgender or intersex. The standoff ended when Travis Trani,

CDOC’s Director of Prison Operations, directed Lengerich to allow Thompson to

shower privately. Thompson claims that the BVCF shower conditions and policies

violate his rights under the Fourth, Eighth, and Fourteenth Amendments.

      Second, Thompson alleges BVCF is overcrowded and understaffed. He asserts

that the cells were intended for single occupancy but are double-bunked. And he

alleges the cells are insufficient for even a single occupant. Specifically, he states

that although the American Correctional Association (ACA) recommends 25 square

feet of unencumbered square feet per occupant, his cell has only 21.5 total square feet

of unencumbered space, shared by two men for 18 to 24 hours per day. Also,



      1
        Thompson states that he did not shower for 19 days, but the amended
complaint alleges that he moved to the lower East Unit on September 19 and finally
was allowed to shower privately on October 14, which is a period of 25 days.
                                            3
inmates are subject to multi-day lockdowns, including an 11-day lockdown in March

2018 when inmates were ill with the flu and no cleaning supplies were provided.

Further, he states that understaffing cuts two ways: inmates are kept in their cells

more, but when they are out of their cells, they are in greater danger from each other.

Thompson claims that these conditions violate his rights under the Eighth and

Fourteenth Amendments.

      Thompson sued Lengerich, Hansen, and Cattell in both their official and their

individual capacities. The magistrate judge identified several deficiencies in

Thompson’s original complaint and directed him to file an amended complaint.

Upon screening Thompson’s amended complaint under 28 U.S.C. § 1915A and

D.C.Colo.L.CivR. 8.1(b)(3), the district court dismissed all of his claims as legally

frivolous. Thompson appeals.

                                    DISCUSSION

      Our review is de novo because the district court based its frivolousness

determination on questions of law. Fogle v. Pierson, 

, 1259 (10th Cir.

2006). “[A] complaint . . . is frivolous where it lacks an arguable basis either in law

or in fact.” Neitzke v. Williams, 

, 325 (1989). Frivolous claims include

those “based on an indisputably meritless legal theory” or “describing fantastic or

delusional scenarios.” 

But “frivolousness . . . refers to a more limited

set of claims than does [Fed. R. Civ. P.] 12(b)(6)[.]” 

Accordingly, a

complaint may fail to state a claim upon which relief may be granted, yet not

necessarily be frivolous. See 

“A pro se litigant’s pleadings are to be

                                           4
construed liberally and held to a less stringent standard than formal pleadings drafted

by lawyers.” Hall v. Belmon, 

, 1110 (10th Cir. 1991).

I.    Fourth Amendment Claim

      Thompson claims that requiring him to use communal showers violates his

Fourth Amendment rights to bodily privacy and security. The Fourth Amendment,

however, protects against unreasonable searches and seizures. While many of our

cases regarding prisoners’ bodily privacy arise from strip searches, see, e.g., Farmer

v. Perrill, 

, 1259 (10th Cir. 2002); Hayes v. Marriott, 

,

1146-47 (10th Cir. 1995), thus implicating the Fourth Amendment, Thompson’s case

involves neither a search nor a seizure. Accordingly, his allegations more properly

invite analysis under other constitutional provisions: personal security under the

Eighth Amendment, see Ramos v. Lamm, 

, 572 (10th Cir. 1980)

(recognizing under the Eighth Amendment that “an inmate does have a right to be

reasonably protected from constant threats of violence and sexual assaults from other

inmates”), and bodily privacy under the Fourteenth Amendment, see Cumbey v.

Meachum, 

, 714 (10th Cir. 1982) (per curiam) (citing, in non-search

prison context, Fourteenth Amendment precedent regarding inmate bodily privacy).

Accordingly, we affirm the dismissal of the Fourth Amendment claim and instead

consider the allegations under the Eighth and Fourteenth Amendments.

II.   Eighth Amendment Claims

      Thompson seeks to pursue Eighth Amendment claims based on both the

shower conditions and BVCF’s being overcrowded and understaffed.

                                           5
      “The Eighth Amendment’s prohibition of cruel and unusual punishment

imposes a duty on prison officials to provide humane conditions of confinement,

including adequate food, clothing, shelter, sanitation, medical care, and reasonable

safety from serious bodily harm.” Tafoya v. Salazar, 

, 916 (10th Cir.

2008). “Although prison officials have broad administrative and discretionary

authority to manage and control prisons, they must provide humane conditions of

confinement guided by contemporary standards of decency.” Penrod v. Zavaras,

, 1405 (10th Cir. 1996) (citation and internal quotation marks omitted).

      There are two elements to an Eighth Amendment conditions-of-confinement

claim. “First, the alleged injury or deprivation must be sufficiently serious. The

official’s act or omission must result in the denial of ‘the minimal civilized measure

of life’s necessities.’” 

(quoting Farmer v. Brennan,

, 834 (1994)). “Second, . . . the prison official must have a sufficiently

culpable state of mind to violate the constitutional standard. The standard of

culpability necessary to an Eighth Amendment violation is one of deliberate

indifference.” 

official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or safety . . . .’”

511 U.S. at 837).

      A.     Shower Conditions

      Thompson asserts that requiring him to use communal showers violates his

rights to sanitary conditions, treatment for his diagnosed mental condition, and

                                            6
personal safety. The district court held that the amended complaint had failed to

adequately allege both the objective and subjective elements of an Eighth

Amendment claim. It held that being deprived of a shower for a period of a few

weeks was not an extreme deprivation, and that Thompson had failed to allege that

the defendants acted with deliberate indifference to his health and safety, given that

they did not force him to take a communal shower.

      The allegations are that the BVCF communal showers carry significant mental

concerns for Thompson, a survivor of childhood abuse who has been diagnosed with

PTSS/D and cannot shower with other men. It is a reasonable inference from the

allegations that by transferring Thompson to the lower East Unit, which has only

communal showers, and then by refusing to provide him the opportunity to shower

privately until they were ordered to do so, the defendants essentially presented

Thompson with a Hobson’s choice between hygiene/sanitation, on the one hand, and

personal safety and/or care for his diagnosed PTSS/D, on the other. Either way,

Thompson would be deprived of humane conditions of confinement. These

allegations are not legally frivolous.

      Thompson further alleges, however, that after 25 days, he was allowed to

begin showering privately. Thus, by the time he commenced his suit, Thompson was

no longer being subjected to the Hobson’s choice of which he complains. In these

circumstances, Thompson has failed to allege sufficient facts to establish standing to

sue defendants in their official capacities.



                                               7
      “[T]he core component of standing is an essential and unchanging part of the

case-or-controversy requirement of Article III” of the United States Constitution.

Lujan v. Defenders of Wildlife, 

, 560 (1992). “The requirement that

jurisdiction be established as a threshold matter springs from the nature and limits of

the judicial power of the United States and is inflexible and without exception.”

Steel Co. v. Citizens for a Better Env’t, 

, 94-95 (1998) (brackets and

internal quotation marks omitted). “[W]e raise the issue sua sponte because it

involves the court’s power to entertain the suit.” Jordan v. Sosa, 

,

1019 (10th Cir. 2011) (brackets and internal quotation marks omitted).

      “Standing is determined as of the time the action is brought.” 

marks omitted). “To establish Article III standing, the plaintiff bears the

burden of demonstrating the following three elements: (1) an injury in fact; (2) a

causal connection between the injury and the challenged action; and (3) a likelihood

that a favorable decision will redress the injury.” 

of injury in fact,

causation, and redressability constitutes the core of Article III’s case-or-controversy

requirement . . . .” Steel 

(footnote omitted). The relevant

elements here are injury in fact and redressability.

      “The ‘injury in fact’ requirement differs depending on whether the plaintiff

seeks prospective or retrospective relief.” Colo. Cross-Disability Coal. v.

Abercrombie & Fitch Co., 

, 1211 (10th Cir. 2014) (internal quotation

marks omitted). With regard to defendants in their official capacities, Thompson

may seek only injunctive relief. See Brown v. Buhman, 

, 1162 n.10

                                            8
(10th Cir. 2016). “When prospective relief—such as an injunction—is sought, the

plaintiff must be suffering a continuing injury or be under a real and immediate threat

of being injured in the future.” Colo. Cross-Disability 

(internal quotation marks omitted). But Thompson’s shower allegations fail to

demonstrate that he is suffering a continuing injury or is under a real and immediate

threat of being injured in the future. To the contrary, he has been allowed private

showers since October 2017, well before he filed this litigation. Thompson thus has

failed to establish sufficient injury in fact to seek prospective relief with regard to his

shower allegations.

       A lack of a continuing violation also precludes showing redressability. To

satisfy this element, “it must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” 

(internal

quotation marks omitted). In Steel Co., where the defendant’s conduct had ceased

before the filing of the complaint, the Supreme Court held:

       If respondent had alleged a continuing violation or the imminence of a
       future violation, the injunctive relief requested would remedy that
       alleged harm. But there is no such allegation here—and on the facts of
       the case, there seems no basis for it. Nothing supports the requested
       injunctive relief except respondent’s generalized interest in deterrence,
       which is insufficient for purposes of Article 

. “Past exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive relief if unaccompanied by any

continuing, present adverse effects.” 

(ellipsis and internal quotation marks

omitted). In light of the rule stated in Steel Co., Thompson’s past exposure to


                                             9
communal showers does not in itself show a present case or controversy regarding

injunctive relief.

       This standing problem with regard to official-capacity claims, however, does

not preclude Thompson from proceeding with his individual-capacity claims.

See Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 

, 185

(2000) (“[A] plaintiff must demonstrate standing separately for each form of relief

sought.”). Unlike the official-capacity claims, Thompson is not limited to injunctive

relief with regard to the individual-capacity claims. And while 42 U.S.C. § 1997e(e)

may foreclose an award of compensatory damages, he may still recover nominal and

punitive damages from defendants in their individual capacities. See Searles v.

Van Bebber, 

, 879-81 (10th Cir. 2001).

       The amended complaint alleges that the defendants had actual knowledge that

Thompson’s PTSS/D precluded him from taking communal showers and personally

participated in transferring Thompson to the lower East Unit and in denying his

requests for private showers. Moreover, a factfinder “is permitted to infer that a

prison official had actual knowledge of the constitutionally infirm condition based

solely on circumstantial evidence, such as the obviousness of the condition.” 

. The attachment to Thompson’s complaint, a statement under

penalty of perjury from another inmate, supports an inference that the BVCF

communal shower conditions are well-known to staff. In short, Thompson’s

allegations regarding the defendants’ personal knowledge and participation also are



                                          10
sufficient to rise above the level of a legally frivolous Eighth Amendment claim, with

regard to his allegations against defendants in their individual capacities.

      B.     Overcrowding and Understaffing

      Thompson further asserts Eighth Amendment violations from BVCF being

overcrowded and understaffed. The district court held this claim was frivolous

because an allegation that cell size fails to meet recommended standards does not

demonstrate a constitutional violation, and Thompson’s allegations of being

subjected to an 11-day lockdown in March 2018 due to a flu epidemic does not

amount to intolerable conditions.

      We again respectfully disagree with the district court’s analysis. As the

district court noted, there is no per se Eighth Amendment prohibition on

double-celling. See Rhodes v. Chapman, 

, 348-49 (1981). But that does

not mean that an inmate cannot complain about overcrowding. Rhodes considered,

and ultimately rested on, the district court’s findings of fact regarding the plaintiffs’

particular circumstances. 

      The conditions alleged in the amended complaint are worse than the conditions

Rhodes upheld as constitutional. Thompson’s cell allegedly is 54 square feet (with

only 21.5 square feet of unencumbered space), while the cells in Rhodes were 63

square feet, 

And Thompson alleges that the amount of unencumbered

space fails to comply with current recommended ACA standards even for one inmate,

let alone two. Even though the ACA standards do not themselves establish whether

conditions are constitutional, they may be relevant to determining the constitutional

                                            11
claim. See Battle v. Anderson, 

, 395, 401 (10th Cir. 1977) (upholding

district court’s adoption of American Public Health Association standards calling for

60 square feet per cell). Further, Thompson states that he generally is allowed out of

his cell for only 4 to 4.5 hours per day, whereas the Rhodes inmates had access to a

day room for 15 hours per day, 

. Thompson also is subject to

multi-day lockdowns, which, combined with the small size of his cell, conceivably

could deprive him of the ability to exercise. See Wilson v. Seiter, 

, 304

(1991) (“Some conditions of confinement may establish an Eighth Amendment

violation ‘in combination’ when each would not do so alone, but only when they

have a mutually enforcing effect that produces the deprivation of a single,

identifiable human need such as food, warmth, or exercise[.]”); Hutto v. Finney,

, 686–87 (1978) (“A filthy, overcrowded cell and a diet of ‘grue’ might

be tolerable for a few days and intolerably cruel for weeks or months.”). In sum, the

allegations regarding overcrowding are not legally frivolous.

      Further, the district court did not address Thompson’s allegations that the

prison is understaffed, increasing the danger to inmates. In addition to stating that he

is forced to spend more time in his inadequate cell space because of staffing levels,

Thompson claims that understaffing causes him to be less safe when he is among

other inmates. For example, he avers that staff responses to inmate fights have been

delayed, leaving inmates injured. This circuit has stated that “an inmate does have a

right to be reasonably protected from constant threats of violence and sexual assaults

from other inmates,” and that “[v]iolence and illegal activity between inmates at Old

                                          12
Max is further facilitated by the inadequacy of the staffing levels.” 

, 573. Accordingly, Thompson’s allegations that understaffing contributes to a

violation of his Eighth Amendment rights are not legally frivolous.

       For these reasons, we reverse the dismissal of this Eighth Amendment claim,

but only as to defendant Lengerich. It is reasonable at this stage of the litigation to

infer that as BVCF’s warden, he has actual knowledge of and participation in setting

and maintaining BVCF’s conditions. But Thompson has not alleged any facts to

show that defendants Hansen or Cattell have any involvement with or responsibility

for overcrowding or understaffing at BVCF. Accordingly, we affirm the dismissal of

this claim as against Hansen and Cattell.

III.   Fourteenth Amendment Claims

       As stated above, Thompson’s bodily privacy allegations invoke the Fourteenth

Amendment. In addition, Thompson explicitly alleges an equal protection violation

with regard to the shower policy and a due process violation from being transferred

to the lower East Unit.2

       A.    Bodily Privacy – Shower Conditions

       An inmate’s interest in bodily privacy may be restricted “only to the extent

necessary to further the correction system’s legitimate goals and policies.” 

. In Cumbey, this court held that the district court erred in dismissing



       2
        Thompson’s opening brief does not challenge the dismissal of another equal
protection claim predicated upon double-bunking prisoners in the lower East Unit
while single-bunking prisoners elsewhere in BVCF.
                                            13
as frivolous a prisoner’s claim that being viewed naked by female guards violated his

privacy. 

this case the district court stated it had found no cases

holding “that an inmate has a constitutional right to a private shower,” R. at 95, it is

not legally frivolous for Thompson to seek to extend precedent such as Cumbey to the

proposition that an inmate with PTSS/D from childhood abuse has an interest in

bodily privacy that would preclude being required to shower communally with other

inmates, including sex offenders.

       As discussed above, however, because Thompson has been allowed to shower

privately since before he commenced this lawsuit, he lacks standing to proceed with

this claim against defendants in their official capacities. This claim may only

proceed against defendants in their individual capacities.

       B.     Equal Protection – Shower Policy

       The Equal Protection Clause requires the government to treat similarly situated

people alike. City of Cleburne v. Cleburne Living Ctr., Inc., 

, 439

(1985). “This provision creates no substantive rights,” but “[i]nstead, it embodies a

general rule that States must treat like cases alike but may treat unlike cases

accordingly.” Vacco v. Quill, 

, 799 (1997). “[T]o establish an equal

protection violation, [Thompson] must allege facts that [the defendants] treated him

differently than other similarly situated prisoners.” Requena v. Roberts, 

, 1210 (10th Cir. 2018), cert. denied, 

(2019). “Individuals are

‘similarly situated’ only if they are alike in all relevant respects.” 

marks omitted). Inmates must also show that “the difference in treatment

                                            14
was not reasonably related to legitimate penological interests.” 

(internal quotation marks omitted).

       Thompson argues that it is an equal protection violation for A.R. #100-40 to

guarantee private showers to transgender and intersex inmates but not to other

inmates with special needs such as his PTSS/D. The district court found this claim

frivolous on the ground that Thompson had not satisfied the “similarly situated”

element “because he is not transgender nor intersexual.” R. at 96. “Further, there is

a legitimate penological interest for allowing transgender and intersexual inmates to

shower privately. Therefore, [Thompson] has failed to demonstrate that he was

treated differently than others similarly situated as a result of intentional or

purposeful discrimination.” 

of surviving initial screening for frivolity, however, Thompson

adequately alleged that he is similarly situated to transgender and intersex inmates

with regard to the relevant respect – prisoners who, for legitimate reasons of personal

safety (either mental or physical), have a need for private showers. We also conclude

that it is not legally frivolous for Thompson to contend that there is no legitimate

penological interest in privileging some inmates with special needs for private

showers while rejecting the requests of other inmates with special needs. The claim

may fail upon further examination, but at this stage we are not satisfied that it is

legally frivolous. Nevertheless, as discussed above, because Thompson has been

allowed to shower privately since before he commenced this lawsuit, he lacks



                                            15
standing to proceed with this claim against defendants in their official capacities.

This claim may only proceed against defendants in their individual capacities.

      C.     Due Process – Transfer to Lower East Unit

      Finally, the amended complaint seeks to assert a due process claim arising

from Thompson’s placement on the lower East Unit. It states that Thompson “is

classified as a Minimum/Minimum Restrictive Level prisoner, yet, he is housed in

what is supposed to be a Medi[]um Custody level area of BVCF which is in fact

managed like a Close and/or Maximum Security level facility.” R. at 71. “Without

any [administrative] due process procedures, proceedings, and/or protections,

Plaintiff was arbitrarily re-classified and forced to be housed in a higher custody

level housing unit than his CDOC classification requires.” 

(brackets in

original). The district court properly dismissed this claim as legally frivolous.

      “To establish a due-process violation, a prison inmate challenging the

conditions of his confinement must show that the defendants deprived him of a

constitutionally protected liberty interest.” Grissom v. Roberts, 

, 1169

(10th Cir. 2018). The Constitution itself does not create the required liberty interest

for state inmates. See Estate of DiMarco v. Wyo. Dep’t of Corr., 

,

1339 (10th Cir. 2007) (internal quotation marks omitted). Instead, “[a] protected

liberty interest only arises from a transfer to harsher conditions of confinement when

an inmate faces an atypical and significant hardship in relation to the ordinary

incidents of prison life.” Rezaq v. Nalley, 

, 1011 (10th Cir. 2012)

(ellipsis and quotation marks omitted). Thompson’s description of a transfer from a

                                           16
general population living situation that provided various incentives to another general

population ward with harsher conditions does not satisfy this difficult standard. See

1015 (noting that the appropriate comparison is between “the nature of

the challenged conditions to the type of nonpunitive confinement routinely imposed

on inmates serving comparable sentences” and holding that the conditions in the

general population unit at ADX “are not extreme as a matter of law”).

                                   CONCLUSION

      Thompson’s second motion for appointment of counsel is denied. We reverse

the dismissal of the following claims and remand for further proceedings: (1) the

Eighth Amendment claim as to BVCF’s shower conditions and policy against

defendants in their individual capacities; (2) the Eighth Amendment claim as to

overcrowding and understaffing at BVCF against defendant Lengerich; (3) the

Fourteenth Amendment bodily privacy claim against defendants in their individual

capacities; and (4) the Fourteenth Amendment equal protection claim against

defendants in their individual capacities.3 We affirm the dismissal of all other

claims.




      3
        On September 23, 2019, Mr. Thompson filed in this court a notice of change
of address. We leave it to the district court on remand to assess the implications, if
any, of Mr. Thompson’s change of address.
                                          17
      We note that this decision rests on the narrow ground of legal frivolity, and

nothing herein should be read to limit the district court’s ability to decide the

remanded claims on any other ground that may arise or be asserted on remand.


                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




                                           18