F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 17 2001
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ANDREW FERGUSON, also known
 as Andrew Lee Ferguson,
             Plaintiff - Appellant,                     No. 01-2030
 v.                                            (D.C. No. CIV-00-1371-MV)
 NEW MEXICO DEPARTMENT OF                            (D. New Mexico)
 CORRECTIONS; WACKENHUT
 CORRECTIONS CORPORATION;
 ERASMO BRAVO, Warden,
 Guadalupe County Correctional
 Facility; TIMOTHY HATCH, Deputy
 Warden, Guadalupe County
 Correctional Facility; DAVID
 GRIEGO, Associate Warden,
 Guadalupe County Correctional
 Facility; JOHN/JANE DOE, also
 known as Major Johnson, Guadalupe
 County Correctional Facility;
 LIEUTENANT MICHAEL NEELY,
 Guadalupe County Correctional
 Facility; and SHANNON
 MCREYNOLD, Director, Special
 Control Unit, Penitentiary of New
 Mexico,
             Defendants - Appellees.


                          ORDER AND JUDGMENT *



      *
       This order and judgment is not binding precedent, except under the
doctrines of 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.
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      After examining the briefs and the 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.

      Appellant Andrew Lee Ferguson, a state prisoner proceeding pro se,

appeals the district court order dismissing his § 1983 claims under Fed. R. Civ. P.

12(b)(6). On October 2, 2000, Mr. Ferguson filed a § 1983 complaint claiming

Defendants violated his rights under the First and Fourteenth Amendments of the

Constitution. Mr. Ferguson’s complaint arose out of his “jailhouse lawyering”

activities. On November 17, 2000, Mr. Ferguson amended his original complaint.

The district court dismissed the amended complaint on December 28, 2000. On

appeal, Mr. Ferguson challenged the district court’s decision on three grounds.

      Mr. Ferguson first disputes the district court’s finding that he had no

legally protected interest to represent others. The district court correctly held that

the First Amendment is not implicated by Mr. Ferguson’s alleged “jailhouse

lawyering” activities. Prisoners “do not have a protected interest in providing

legal representation to other inmates.” Smith v. Maschner, 

, 950


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(10th Cir. 1990). Mr. Ferguson’s reliance on the Ninth Circuit’s decision in

Murphy v. Shaw, 

(9th Cir. 1999), is unfounded; the Supreme Court

recently reversed that decision. Shaw v. Murphy, 

(2001) (holding

that prisoners have no First Amendment right to represent others).

      Mr. Ferguson next argues that Defendants’ retaliation against him for filing

grievances constitutes a deprivation of his constitutional rights. The district court

did not address this issue in its ruling. It is true that the Supreme Court in Sandin

v. Conner, 

(1995), held that a prisoner does not have a protected

due process interest in administrative segregation proceedings unless the

punishment is atypical of what is expected while in confinement. However, the

Court specifically held that prisoners retain “other protection from arbitrary state

action even within the expected conditions of confinement,” such as First

Amendment retaliation claims. 

n.11 (1995).

      Appellant’s complaint states that after filing grievances regarding alleged

harassment, Defendants “placed plaintiff in involuntary administrative

segregation by alleging plaintiff violated policy without substantiating the

violation. This was done in an attempt to cover up harassment and retaliation.”

Plaintiff’s Complaint, Rec., Vol. 1, Doc. 7 at 2-C and D. “‘[I]t is well established

that an act in retaliation for the exercise of a constitutionally protected right is

actionable under . . . Section 1983 even if the act, when taken for a different


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reason, would have been proper.’” 

(10th Cir. 1990)

(citation omitted). A liberal reading of the complaint indicates that Mr. Ferguson

sufficiently pled that the administrative proceeding was a retaliatory act for filing

grievances in violation of Mr. Ferguson’s First Amendment rights. 1

       Mr. Ferguson’s final issue for review is whether his due process rights were

violated during the proceedings culminating in Mr. Ferguson’s placement in

administrative segregation. The district court correctly dismissed this claim. Mr.

Ferguson’s involuntary placement into segregated confinement does “not present

the type of atypical, significant deprivation in which a State might conceivably

create a liberty interest.” 

. Therefore, Mr. Ferguson’s

third issue on appeal fails. 2

       We REMAND this case to the District Court for consideration of Mr.

Ferguson’s First Amendment retaliation claim for filing grievances. In all other

respects, we AFFIRM the District Court.




       1
        Mr. Ferguson’s complaint surpasses the low threshold required to avoid
disposition through Fed. R. Civ. P. 12(b)(6). However, in order to proceed, it is
essential that Mr. Ferguson prove specific facts showing retaliation resulting from
the exercise of his First Amendment right to file grievances. Conclusory
allegations of constitutional retaliation are simply insufficient.

       We also deny Mr. Ferguson’s “Motion to File Exhibits” as moot. All of
       2

the requested exhibits pertain to his allegation that the Defendants violated his
due process rights while placing him in involuntary administrative segregation.

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      Entered for the Court



      Monroe G. McKay
      Circuit Judge




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