F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 12 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
RODNEY ROWSEY,
Plaintiff-Appellant,
vs. No. 97-1382
(D.C. No. 97-D-1747)
J.D. SWINSON; J.T. O’BRIEN; J. (D. Colo.)
SHREEVE; M. TIRADO; JOHN
McLEAD; NICK BERRY; Unknown
Staff Implicated to Escape;
C. DICKERSON; E. MAY; M.
JACKSON; P. WHALEN; J. DRIVER;
J. GRECO; R. WILEY; T. HINES;
MR. HARRISON; MR. MURPHY;
MR. ORDONEZ; L. HOELTZEL; L.
JENKINS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges. **
Plaintiff-Appellant Rodney Rowsey, a federal prisoner appearing pro se and
*
This order and judgment is not binding precedent, except under the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.
**
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.
in forma pauperis, appeals from the district court’s dismissal of his civil rights
action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). The district court dismissed Mr. Rowsey’s complaint and action sua
sponte pursuant to 28 U.S.C. § 1915(e)(2)(B), holding that Mr. Rowsey’s
complaint was legally frivolous and failed to state a claim upon which relief may
be granted. On appeal, Mr. Rowsey contends the district court (1) improperly
dismissed his complaint and action sua sponte under § 1915 because, having paid
the entire filing fee, he does not appear in forma pauperis; (2) improperly
dismissed his due process claim; (3) failed to construe his complaint to state a
claim under the Privacy Act pursuant to Sellers v. Bureau of Prisons, 959 F.2d
307 (D.C. Cir. 1992), and under the Equal Protection clause; and (4) erred in
failing to order discovery, a hearing, and an answer from the Defendants. Our
jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part, reverse in part,
and remand for further proceedings.
Mr. Rowsey’s factual allegations arise from an escape plot which was
uncovered and investigated while Mr. Rowsey was incarcerated at a federal
prison. In his complaint, Mr. Rowsey asserts he was wrongly targeted as an
escape risk as a result of the investigation and was given no opportunity to clear
his name or to refute the classification by any of the Defendants. Mr. Rowsey
further alleges that the Defendants have improperly used the escape risk
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classification, which remains in his prison file, to harass him, transfer him to
other correctional facilities far from his family and remove him from favorable
job assignments.
Upon receipt of his complaint filed August 12, 1997, the district court
granted Mr. Rowsey leave to proceed in forma pauperis and pay a partial filing
fee of $25.00. Mr. Rowsey, however, paid the entire filing fee. Thereafter, the
district court construed Mr. Rowsey’s complaint as raising a due process claim
and held that Mr. Rowsey’s interest in his prison classification or placement is not
a protected liberty interest under the Due Process Clause. Accordingly, the
district court dismissed Mr. Rowsey’s complaint as legally frivolous and for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
Mr. Rowsey first argues the district court exceeded its authority in
dismissing his complaint under 28 U.S.C. § 1915, which governs in forma
pauperis proceedings, because he paid the filing fee in full and therefore did not
proceed in forma pauperis. We review the district court’s interpretation of § 1915
de novo. See State of Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir. 1995);
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Having filed his
complaint after April 26, 1996, the provisions of the Prison Litigation Reform
Act, P.L. No. 104-134, § 804, 110 Stat. 1321-66 (1996) (codified in part at 28
U.S.C. §§ 1915 & 1915A) govern the district court’s dismissal of Mr. Rowsey’s
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complaint. See Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996). It is
undisputed that upon Mr. Rowsey’s request, the district court granted him leave to
proceed in forma pauperis. See docket entry no. 2; I R. doc. 3 (Motion for Leave
of Court to Proceed In Forma Pauperis); I R. doc 5 at 1. Section 1915(e)(2)
provides that “[n]otwithstanding any filing fee, or any portion thereof, that may
have been paid” the district court “shall dismiss [a case brought under this
section] at any time if the court determines that . . . the action or appeal (I) is
frivolous or malicious; [or] (ii) fails to state a claim on which relief may be
granted[.]” 28 U.S.C. § 1915(e)(2)(B). The district court did not err in applying
the restrictions of § 1915 to Mr. Rowsey’s complaint.
Further, we do not believe the district court erred in construing Mr.
Rowsey’s complaint as alleging a due process claim and dismissing that claim.
Because the district court held Mr. Rowsey’s complaint was legally frivolous and
failed to state a claim upon which relief may be granted, we review the district
court’s decision under the more stringent de novo standard of review required to
support the latter determination, see McGore, 114 F.3d at 604, and find no error.
Mr. Rowsey has no legally protected liberty interest in a particular security or job
classification, or in the location of his confinement. See Sandin v. Connor, 515
U.S. 472, 486 (1995); Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Ingram
v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986). Moreover, other than the
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“Operations Memorandum” to which Mr. Rowsey cites, which simply notifies
Bureau of Prisons personnel of the impact of the Sellers decision, Mr. Rowsey
cites to no regulation or statute which gives rise to a liberty interest under the
circumstances he alleges. Accordingly, the district court correctly held Mr.
Rowsey has not alleged a deprivation of a legally recognized liberty interest and
thus has not adequately stated a due process claim.
Further, notwithstanding the liberal construction which we must give pro se
complaints, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), Mr.
Rowsey’s complaint cannot be read to state a claim under the Equal Protection
Clause. Mr. Rowsey does not attribute the defendants’ action or inaction to his
membership in a suspect class; nor has he alleged that the distinction upon which
the defendants relied was not reasonably related to a legitimate penological
interest. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994).
We agree, however, that the district court should have construed Mr.
Rowsey’s complaint as alleging a claim under the Privacy Act. See 5 U.S.C.
§ 552a; Sellers, 959 F.2d 307. Mr. Rowsey’s complaint refers to the Sellers
decision in several places, and he attached to his pleading the Operations
Memorandum which discusses Sellers and directs correctional staff to “take
reasonable steps to ensure the accuracy of challenged information in an inmate’s
central file, particularly when the information challenged can be verified.” I R.
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doc 3 exh. E(1). Treating Mr. Rowsey’s factual allegations are true for purposes
of ascertaining the complaint’s sufficiency under Fed. R. Civ. P. 12(b)(6), and
assuming Mr. Rowsey is given leave to amend his pleadings to add the Bureau of
Prisons as a defendant, we believe Mr. Rowsey’s complaint can be reasonably
read to state a claim under 5 U.S.C. §§ 552a(g)(1)(C) and (g)(4), as he has alleged
adverse determinations resulting from the information with no opportunity to
respond. We express no opinion on the merits of the claim, see Hall, 935 F.2d at
1110 & n.3, including whether the information is capable of being verified, or
upon any defenses the Bureau of Prisons may raise. See 5 U.S.C. § 552a(g)(5).
Accordingly, we AFFIRM in part and REVERSE in part the district court’s
order of dismissal and REMAND to the district court for further proceedings
consistent with this order and judgment. In light of our disposition, we need not
reach Mr. Rowsey’s remaining arguments.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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