F I L E D
United States Court of Appeals
Tenth Circuit
AUG 8 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
MICHAEL R. LUNA,
Plaintiff - Appellant,
v. No. 96-2273
(D.N. Mex.)
DON HOOVER, Interstate Compact (D. Ct. No. CIV 96-901)
Administrator,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in 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.
This appeal is from an order of the district court dismissing under 28
U.S.C. § 1915(e)(2)(B) plaintiff’s pro se civil rights complaint on the ground that
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
the action is “frivolous or malicious.” The district court concluded that plaintiff
had failed to assert the violation of a constitutional right in his pro se complaint.
We agree and affirm.
We construe pro se petitioner’s filings liberally. Plaintiff brings this civil
rights action under 42 U.S.C. § 1983 asserting that his constitutional rights were
violated when he was transferred from a facility in New Mexico to an out of state
facility and, further, by the failure of prison officials to provide adequate law
libraries or legal assistance. On appeal here, plaintiff makes further assertions
about his inability to pursue habeas corpus relief on the grounds of his
institutional “good time.” Plaintiff further alleges state-based substantive due
process violations. These allegations are apparently also related to the transfer
from one prison facility to another.
It is clear that federal prisoners enjoy no constitutional right to placement
in a particular prison facility. Prows v. Federal Bureau of Prisons, 981 F.2d 466,
469 (10th Cir. 1992), cert. denied, 520 U.S. 830(1993). Plaintiff here has alleged
no unlawful reason for the transfer so the transfer itself cannot be challenged.
The Supreme Court recently made clear that plaintiff is required to show some
“relevant actual injury” in order to make a constitutional claim for denial of
access to the courts as the result of defendant’s failure to provide New Mexico
legal materials. Lewis v. Casey, U.S. , 116 S. Ct 2174, 2180 (1996).
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Petitioner has wholly failed to show such injury. His vague and conclusory
allegations on appeal with respect to his inability to study New Mexico law about
the use of “good time” credit to support a habeas action fall far short of the kind
of actual injury required by Lewis. We agree with the district court that this case
should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The complaint
clearly fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Appellant’s motions to amend or supplement are granted. APPEAL
DISMISSED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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