F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHNNY E. LEE,
Plaintiff-Appellant,
No. 95-6414
v.
(D.C. No. CV-95-207)
(W.D. Okla.)
LARRY A. FIELDS; MICHAEL W.
CARR; HENRY TURNER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, 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 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This order and judgment is not binding precedent except under the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. 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.
Mr. Johnny E. Lee (Mr. Lee), appearing pro se, appeals the district court's
order of October 24, 1995, granting the defendants' motion for summary judgment
on his civil rights complaint. 1
Mr. Lee is currently an Oklahoma state prisoner. On February 9, 1995, he
initiated this action pursuant to 42 U.S.C. § 1983, alleging the defendants violated
his constitutional rights by transfering him from a minimal security facility to a
medium security facility within Oklahoma without holding a hearing. 2 On
September 26, 1995, the magistrate judge recommended the defendants' motion
for summary judgment be granted on the grounds that Mr. Lee's claims were
without merit. On October 24, 1995, the district court adopted the Report and
Recommendation of the magistrate judge, granted defendants' motion for
summary judgment, and denied Mr. Lee's motion to amend his complaint.
1
Mr. Lee filed his notice of appeal on November 13, 1995, prior to the
effective date of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134,
110 Stat. 1321 (Apr. 26, 1996). Therefore, the Act does not apply. See White v.
Gregory, 87 F.3d 429, 430 (10th Cir.), cert. denied, 117 S. Ct. 528 (1996).
2
On September 13, 1994, Mr. Lee was transferred from the Jess Dunn
Correctional Center in Taft, Oklahoma, a minimum security facility, to the
maximum security unit of the Oklahoma State Penitentiary in McAlester,
Oklahoma. On September 19, 1994, he was moved to the Lexington Correctional
Center in Lexington, Oklahoma, a medium security facility, where he currently
resides.
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On appeal, Mr. Lee contends (1) his liberty interests and constitutional
rights to due process and equal protection were violated when he was transfered
from a minimum security facility to a medium security facility within Oklahoma; 3
(2) he was deprived of a full and fair hearing by the district court's denial of his
discovery motion; and (3) the district court abused its discretion in granting
summary judgment in favor of defendants.
In Meachum v. Fano, 427 U.S. 215, 216 (1976), the Supreme Court held:
The Due Process Clause of the Fourteenth Amendment [does
not entitle] a state prisoner to a hearing when he is transferred to a
prison the conditions of which are substantially less favorable to [the
prisoner], absent a state law or practice conditioning such transfers
on proof of serious misconduct or the occurrence of other specified
events.
See also Montanye v. Haymes, 427 U.S. 236, 242 (1976) ("[T]he Due Process
Clause does not in itself subject an inmate's treatment by prison authorities to
judicial oversight. The Clause does not require hearings in connection with
transfers whether or not they are the result of the inmate's misbehavior or may be
labeled as disciplinary or punitive."). Mr. Lee fails to cite any state regulations
creating any such requirement. See Twyman v. Crisp, 584 F.2d 352, 356-57 (10th
Cir. 1978) (Department of Corrections' regulations and Oklahoma law regarding
3
Although Mr. Lee renews his equal protections allegation on appeal, he
provides no arguments or facts in support thereof. Accordingly, we will not
consider his allegation further.
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intra-state prison transfers and change of security status make such decisions
discretionary within general guidelines, and no due process rights exist that give
rise to a right to judicial review). Therefore, even liberally construing Mr. Lee's
appeal, it is evident his claims against the defendants lack an arguable legal basis
and are, thus, frivolous under 28 U.S.C. § 1915(d). See Neitzke v. Williams, 490
U.S. 319, 325 (1989) ("an appeal on a matter of law is frivolous where '[none] of
the legal points [are] arguable on their merits.'" (Quoting Anders v. California,
386 U.S. 738, 744 (1967))). Additionally, we holdl Mr. Lee's remaining
arguments are equally frivolous.
For the reasons set forth above, Mr. Lee's motion for leave to proceed in
forma pauperis is DENIED and this appeal is DISMISSED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
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