F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 27 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
SCOTT DUFFY,
Plaintiff-Appellant,
v.
No.96-8017
(Dist. of Wyoming)
JUDITH UPHOFF, DUANE
(D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
RICHARD DOWDELL,
Plaintiff-Appellant,
v.
No. 96-8018
(Dist. of Wyoming)
JUDITH UPHOFF, DUANE
(D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
CLARENCE FISHER,
Plaintiff-Appellant,
v. No.96-8019
(Dist. of Wyoming)
JUDITH UPHOFF, DUANE (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
FRANK GARCIA,
Plaintiff-Appellant,
v. No. 96-8020
(Dist. of Wyoming)
JUDITH UPHOFF, DUANE (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
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ALEX VOGEL,
Plaintiff-Appellant,
v. No. 96-8021
(Dist. of Wyoming)
JUDITH UPHOFF, DUANE (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
TERRY HUGHES,
Plaintiff-Appellant,
v. No. 96-8022
(Dist. of Wyoming)
JUDITH UPHOFF, DUANE (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
-3-
DONALD GEE,
Plaintiff-Appellant, No. 96-8023
(Dist. of Wyoming)
v. (D.C. No. 94-CV-278)
JUDITH UPHOFF, DUANE
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
DAVID HARTLEY,
Plaintiff-Appellant, No. 96-8024
(Dist. of Wyoming)
v. (D.C. No. 94-CV-278)
JUDITH UPHOFF, DUANE
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,
Defendants-Appellees.
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ORDER AND JUDGMENT *
Before, SEYMOUR, PORFILIO, and MURPHY, 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); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Scott Duffy, Richard Dowdell, Clarence Fisher, Frank Garcia, Alex Vogel,
Terry Hughes, Donald Gee, and David Hartley (hereinafter “the Appellants”),
appeal from the district court’s dismissal of their pro se 42 U.S.C. § 1983
complaints as frivolous under 28 U.S.C. § 1915(d) (1994). 1 This court exercises
jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
*
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.
1
Because the Appellants filed their notices of appeal on March 1, 1996,
prior to the enactment of the Prison Litigation Reform Act, Pub. L. No. 104-134,
110 Stat. 1321 (Apr. 26, 1996), the Act’s amendments to 28 U.S.C. § 1915 do not
apply here. White v. Gregory , 87 F.3d 429, 430 (10th Cir.), cert. denied , 1996
WL 604229 (U.S. Dec. 2, 1996) (No. 96-6330).
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The Appellants brought this suit in the United States District Court for the
District of Wyoming alleging that certain officers of the Wyoming State Prison
had violated the Appellants’ rights to substantive and procedural due process,
equal protection, and freedom from cruel and unusual punishment. According to
the Appellants, the prison officials had arbitrarily and capriciously placed the
Appellants in administrative segregation in an effort to “break[] their spirit.” The
district court dismissed the complaint as frivolous under section 1915(d), finding
as follows: (1) the due process clause does not confer a liberty interest in
placement within the general prison population; (2) Appellants had not identified
an applicable state law creating such an interest; (3) Appellants’ equal protection
claim was conclusory and, therefore, did not state a claim; and (4) the conduct
complained of, even if proved, did not state a claim under the Eighth Amendment.
On appeal, Appellants contend that the due process clause does indeed create a
substantive right to remain within the general prison population. 2
2
Appellants assert that their “claim here is primarily that of a violation of
substantive due process.” They also contend in passing, however, that “their
placement in segregation violated their rights to procedural due process, equal
protection and their right to be free from cruel and unusual punishment.”
Nevertheless, the Appellants have not provided any independent analysis or
briefing of those claims. Accordingly, Appellants have waived consideration of
these issues on appeal. United States v. Hardwell , 80 F.3d 1471, 1492 (10th Cir.
1996) (holding that defendant waived consideration of issue on appeal by “failing
to make any argument or cite any authority to support his assertion.”).
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A district court may dismiss an in forma pauperis complaint if it determines
that the action is frivolous. 28 U.S.C. § 1915(d) (1994). A complaint is frivolous
when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). That is to say, a complaint is frivolous if it is based on
an “indisputably meritless legal theory” or on “clearly baseless” facts. Id. at 327.
On appeal, construing pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519,
520 (1972); Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995), this court
reviews a section 1915(d) dismissal for abuse of discretion. Denton v.
Hernandez, 504 U.S. 25, 33 (1992); Green v. Seymour, 59 F.3d 1073, 1077 (10th
Cir. 1995).
We conclude that the district court abused its discretion in dismissing
Appellants’ complaint as frivolous. Although this Circuit has yet to address the
issue, at least two other courts have recognized the existence of a substantive due
process claim post-Sandin v. Connor, 115 S. Ct. 2293 (1995). See Birdo v. Smith,
No. 95-5970, 1996 WL 465031, at *4 (6th Cir. Aug. 13, 1996); Smith v.
McCaughtry, Nos. 94-2743, 94-2930, and 95-2609, 1996 WL 137869, at *4-5 (7th
Cir. Mar 19, 1996). Accordingly, this court is not prepared to say that the
Appellants’ substantive due process claims are based on an “indisputedly
meritless legal theory.”
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Despite our conclusion that Appellants’ complaint is not frivolous, we
nevertheless affirm. Assuming, without deciding, that the substantive component
of the Due Process Clause protects prisoners against arbitrary changes in their
prison classifications, it is clear that the Appellants have not alleged facts rising
to the high standard necessary to state such a claim. Williams v. City & County of
Denver, 99 F.3d 1009, 1015 (10th Cir. 1996) (holding that plaintiff asserting
substantive due process violation must assert egregious and outrageous conduct
that is so fraught with unreasonable risk as to shock the conscience). We have
reviewed in detail the acts alleged by the appellants and find neither the length of
incarceration nor the conditions of administrative segregation sufficient to shock
the conscience. 3
Because Appellants’ claims are not indisputedly meritless, we hereby
GRANT their motion to proceed in forma pauperis on appeal. The judgment of
3
We note that Appellants do not contend that an existing state regulation
creates a liberty interest in remaining in the general prison population. Even if
Appellants had identified such a regulation, it is far from clear that such a
regulation would create a liberty interest in light of the recent decision in Sandin
v. Conner , 115 S. Ct. 2293 (1995). Although Sandin recognized that prison
regulations could potentially create a liberty interest protected by the Due Process
Clause, it held that these interests are generally limited to freedom from restraint
that “imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 2300. Furthermore, confinement in
administrative segregation is not the type of “atypical, significant deprivation” in
which a liberty interest might be created. Id. at 2301.
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the United States District Court for the District of Wyoming dismissing
Appellants’ complaint is hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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