Tenth Circuit Confirms Turner and Sandin Govern SVPA Detainee Media and Mail Restrictions; Class-of-One Equal Protection Requires Truly Similar Comparators

Introduction

In Merryfield v. Fleet, No. 24-3070 (10th Cir. Mar. 25, 2025), the U.S. Court of Appeals for the Tenth Circuit affirmed dismissal of a pro se civil-rights action brought under 42 U.S.C. § 1983 by Dustin J. Merryfield, a civilly committed detainee under the Kansas Sexually Violent Predators Act (SVPA), Kan. Stat. Ann. §§ 59-29a01 to 29a022. Mr. Merryfield challenged Larned State Hospital’s media policies and practices—covering access to various entertainment media, including “M”-rated video games, and the reading of detainee mail—on First Amendment, Fourteenth Amendment Due Process, and Equal Protection grounds. He also attempted a facial challenge to an SVPA provision that defines detainee rights and procedural protections.

The panel (Judges Matheson, Baldock, and Senior Judge Lucero) issued a nonprecedential order and judgment, deciding the appeal on the briefs. While not binding precedent, the decision may be cited for persuasive value. The court’s opinion is significant for civil-commitment litigation because it:

Confirms that Turner v. Safley’s “reasonable relationship to legitimate penological interests” test applies to First Amendment challenges by SVPA detainees.
Applies Sandin v. Conner’s “atypical and significant hardship” threshold to procedural due process claims arising from institutional regulations affecting SVPA detainees.
Reiterates that alleged noncompliance with state-law procedures, standing alone, does not create a federal due process claim under § 1983.
Restates stringent “class-of-one” equal protection requirements, holding ordinary prisoners and juvenile offenders are not proper comparators for SVPA detainees and that a rational basis exists for different treatment.
Underscores strict federal pleading standards and waiver/forfeiture rules on appeal.

Summary of the Opinion

The district court dismissed the complaint under Rule 12(b)(6) for failure to state a plausible claim. The Tenth Circuit reviewed de novo and affirmed. Key points:

First Amendment: Applying Turner v. Safley and the pleading standard from Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the court held the complaint did not plausibly allege that Larned’s media restrictions—including a facility-wide ban on “M”-rated video games and a broad definition of “sexually explicit” content—were unrelated to legitimate penological interests. An argument targeting denial of “unrated” media was deemed waived for inadequate briefing.
Due Process: The facial challenge to Kan. Stat. Ann. § 59-29a22 failed both for inadequate development and because Kansas v. Hendricks holds the SVPA comports with due process. Claims premised on the reading of detainee mail under § 59-29a22(b)(15) were dismissed because violation of state procedures alone does not trigger federal due process absent a protected liberty interest. Under Sandin, Mr. Merryfield did not plausibly allege any “atypical and significant hardship” from the regulations at issue.
Equal Protection (Class-of-One): The comparators offered—adult prisoners, juvenile offenders, and federal prisoners—were not similarly situated “in every material respect” to an SVPA detainee. In any event, Kansas had a rational basis to treat sexually violent detainees differently. A new comparator theory raised for the first time on appeal (other SVPA detainees in “secure confinement”) was not considered.
Disposition: Affirmed in full.

Analysis

Precedents Cited and Their Role

Turner v. Safley, 482 U.S. 78 (1987): Anchors the First Amendment analysis. Regulations that impinge constitutional rights are valid if reasonably related to legitimate penological interests. The court required pleadings to plausibly suggest the absence of such a relationship (citing Al-Owhali v. Holder and Gee v. Pacheco).
Washington v. Harper, 494 U.S. 210 (1990): Confirms Turner’s reach to situations where institutional administration needs implicate constitutional rights.
Consensus across circuits for civil commitment: The court aligned with decisions applying Turner to civil detainees’ First Amendment claims: Ahlers (2d Cir.), Matherly (4th Cir.), Brown (7th Cir.), Beaulieu (8th Cir.), and Pesci (11th Cir.).
Sandin v. Conner, 515 U.S. 472 (1995), and Steffey v. Orman, 461 F.3d 1218 (10th Cir. 2006): Frame procedural due process: a regulation-triggered deprivation must impose an “atypical and significant hardship” relative to ordinary incidents of prison life to implicate a protected liberty interest.
Templeman v. Gunter, 16 F.3d 367 (10th Cir. 1994), and Olim v. Wakinekona, 461 U.S. 238 (1983): Establish that state procedural mandates do not themselves create liberty interests enforceable via § 1983; “process is not an end in itself.”
Kansas v. Hendricks, 521 U.S. 346 (1997), and Merryfield v. Jordan, 584 F.3d 923 (10th Cir. 2009): Support rejection of a facial due process attack on the SVPA.
Equal Protection standards: City of Cleburne (similarly situated principle); A.N. ex rel. Ponder (class-of-one recognized); Planned Parenthood Ass’n of Utah (must be similarly situated “in every material respect”); Kan. Penn Gaming (irrational and abusive government action standard).
Pleading and review standards: Twombly, Iqbal (plausibility); Herrera v. City of Espanola, Waller v. City & County of Denver (de novo review and favorable inferences at Rule 12(b)(6)); GFF Corp. v. Associated Wholesale Grocers (considering documents referenced in complaint).
Appellate forfeiture/waiver: Rivero v. Board of Regents (failure to challenge all alternative bases supports affirmance); United States v. Cooper (inadequately briefed issues are waived); MVT Services v. Great Western (new theories not raised below and no plain-error argument are not considered).

Legal Reasoning

First Amendment: The court reaffirmed that even for SVPA civil detainees, institutional restrictions are judged under Turner. At the pleading stage, a plaintiff must allege facts supporting a plausible inference that the restriction lacks a reasonable connection to legitimate penological (or therapeutic) interests. Mr. Merryfield’s allegations of inconsistent application (e.g., restrictions on Yellowstone but not Law & Order: SVU) did not bridge the gap to plausibly show irrationality. Facility-wide bans—such as prohibiting “M”-rated video games—qualify as administrative decisions under § 59-29a22(c)(2) and are permissible if reasonably related to legitimate aims; only notice is required by state law. The claim concerning denial of media without “industry standard ratings” was waived for lack of development.
Due Process:
- Facial challenge to § 59-29a22: Even assuming adequately raised, it fails under Hendricks and circuit precedent recognizing the SVPA’s constitutionality.
- Procedural due process tied to mail reading: The SVPA grants a right to send/receive mail with reasonable limitations and permits reading by treatment staff under certain circumstances. Alleging departure from the statute’s procedural requirements does not, without more, create a federal due process claim. The constitutional inquiry first asks whether there is a protected liberty interest; under Sandin/Steffey, there was no allegation of an “atypical and significant hardship.”
- Process-based complaints (delays, notices): Echoing Templeman and Olim, noncompliance with state-mandated procedures does not itself constitute a deprivation of liberty under the federal Constitution.
Equal Protection (Class-of-One): A plaintiff must identify comparators “similarly situated in every material respect” and show the absence of a rational basis for differential treatment. Ordinary prisoners and juvenile offenders are materially distinct from SVPA detainees; the state possesses myriad rational reasons to treat sexually violent detainees differently, particularly given public-safety and treatment considerations. Because Mr. Merryfield did not challenge the district court’s rational-basis conclusion on appeal, affirmance was warranted on that ground as well.
Pleading discipline and appellate preservation: The court applied Twombly/Iqbal rigorously, requiring concrete factual content that supports a reasonable inference of constitutional violation. It also enforced waiver and forfeiture rules: arguments not properly presented in the opening brief or not raised below (without a plain-error argument) will not be considered.

Impact

Persuasive authority in the Tenth Circuit: Although nonprecedential, the opinion is a clear signal that the Tenth Circuit will evaluate SVPA detainees’ First Amendment claims under Turner and procedural due process claims through the Sandin “atypical and significant hardship” lens when those claims arise from institutional regulations.
Facility policies and litigation posture: Programs like Larned’s should contemporaneously document legitimate therapeutic and security rationales for blanket media policies (e.g., prohibitions on sexually explicit content or “M”-rated games). Consistency is desirable, but occasional inconsistency—without more—will not defeat a policy at the pleading stage absent plausible allegations of irrationality or punitive motive unrelated to legitimate aims.
Guidance for plaintiffs:
- To attack a policy under Turner, plead facts showing a weak or non-existent rational connection to legitimate institutional interests, the availability of alternative means for expression, a marginal impact on institutional resources, and ready alternatives indicating an exaggerated response. Conclusory disagreement with policy outcomes will not suffice.
- For procedural due process, identify a protected liberty interest by alleging an “atypical and significant hardship” compared to the baseline of ordinary institutional life; mere violation of state procedures, delays, or lack of individualized process for blanket rules do not, by themselves, trigger federal due process protections.
- For class-of-one equal protection, select comparators who are truly alike in all material respects—often other SVPA detainees at the same security level—and explain why any differential treatment lacks a rational basis.
- Preserve all theories and challenges in the district court and fully brief them on appeal; otherwise, expect waiver.
Mail regulation: The decision underscores that statutes permitting reading of detainee mail with “reasonable limitations” and authorizations by treatment staff can be administered without violating federal due process, provided constitutional thresholds are respected. Plaintiffs must show more than noncompliance with state procedural steps to reach a federal due process violation.
Future doctrinal development: The opinion aligns the Tenth Circuit with other circuits applying Turner to civil detainees’ First Amendment claims and uses Sandin’s hardship filter on procedural due process claims in this institutional context. Litigants should structure challenges accordingly and build robust factual records when proceeding beyond the pleading stage.

Complex Concepts Simplified

Turner test (institutional restrictions on rights): A restriction is valid if it is reasonably related to legitimate institutional interests (security, order, rehabilitation/treatment). Courts look at rational connection, alternative means for the right, impact on the institution, and whether obvious, less-restrictive alternatives exist.
Sandin “atypical and significant hardship” (procedural due process): Not every institutional decision creates a liberty interest. Due process is required only if the regulation imposes a hardship beyond the ordinary incidents of institutional life. Routine restrictions and programmatic decisions generally do not meet this threshold.
“Class-of-one” equal protection: A plaintiff claims they alone were irrationally singled out compared to others who are the same in all relevant ways. Success requires near-perfect comparators and a showing that the government had no rational reason for the difference.
Facial vs. as-applied challenges: A facial challenge attacks a law or policy in all its applications; an as-applied challenge contests how it was applied to a particular person. Facial challenges are harder to win and often fail if any constitutional applications exist.
Plausibility pleading (Twombly/Iqbal): Complaints must include facts that make a constitutional violation reasonably inferable—not just labels, conclusions, or a catalogue of grievances.
Waiver/forfeiture on appeal: Courts will not remedy arguments that were not properly raised below or are inadequately briefed on appeal. Failing to challenge all independent grounds for a lower court’s ruling can be fatal.

Conclusion

Merryfield v. Fleet provides a comprehensive, if nonprecedential, roadmap for evaluating SVPA detainees’ constitutional challenges to institutional media and mail policies within the Tenth Circuit. The court:

Affirmed Turner’s applicability to First Amendment claims by civilly committed detainees and demanded plausible factual allegations that a restriction is not reasonably related to legitimate interests.
Applied Sandin to procedural due process claims arising from institutional regulations and reiterated that state-law procedural violations alone do not create federal due process claims.
Clarified that class-of-one equal protection claims require truly comparable peers and are subject to rational-basis review that states often satisfy in the SVPA context.
Enforced strict pleading and preservation rules that will shape how future SVPA challenges are framed and litigated.

Practically, facilities should continue to tie media restrictions to documented therapeutic and security rationales, provide statutory notices for blanket administrative decisions, and maintain stable policy frameworks. Plaintiffs, for their part, must marshal specific, nonconclusory facts if they hope to proceed past the pleading stage. Even though this order and judgment is not binding precedent, it brings the Tenth Circuit’s approach into alignment with the broader federal consensus and will likely carry persuasive weight in future SVPA litigation.