IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 94-50072
____________________
KENNETH C. BILISKI,
Plaintiff-Appellant,
v.
MELVIN HARBORTH, Sheriff, Guadalupe
County and JAMES A. COLLINS, Director
TDC.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA 93 CA 748)
_________________________________________________________________
May 9, 1995
Before KING and JONES, Circuit Judges, and LAKE*, District Judge.
PER CURIAM:**
Kenneth Bilski1 appeals the dismissal of his complaint against
*
District Judge of the Southern District of Texas, sitting
by designation.
**
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
1
The district court docket sheet, the cover sheet for
the appellate brief and the orders entered by the court spell the
appellant's name as Biliski. However, on all of the documents
signed by the appellant, his name is spelled Bilski, and we have
Melvin Harborth, the Sheriff of Guadalupe County, and James A.
Collins, Director of the Texas Department of Criminal Justice
(TDCJ), under 42 U.S.C. § 1983, alleging that he has been
improperly housed at the Guadalupe County jail instead of within
the TDCJ. The Sheriff filed a motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting
that no relief could be granted as a matter of law because Bilski
is not entitled to a transfer and because the Sheriff is entitled
to immunity. Collins moved for dismissal of the complaint under
both Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. §
1915(d). A magistrate judge entered a memorandum and
recommendation that the complaint be dismissed as frivolous under
§ 1915(d). The district court accepted the recommendation of the
magistrate judge and dismissed without prejudice Bilski's complaint
as frivolous under § 1915(d). The district court also denied
Bilski's motion to proceed in forma pauperis on appeal. Bilski
appealed the district court's denial of IFP, and this court ruled
that Bilski satisfied the economic criteria and had demonstrated
that he may present a non-frivolous issue on appeal.
A complaint is frivolous if it lacks an arguable basis in law
or in fact. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (citing
Denton v. Hernandez, 112 S. Ct. 1728, 1733-34 (1992)). This court
reviews a § 1915(d) dismissal under the abuse of discretion
standard. Denton, 112 S. Ct. at 1734.
Insofar as Bilski sought injunctive relief compelling his
transfer from the Guadalupe County Jail to the TDCJ, his claim has
elected to use that spelling in the body of this opinion.
been mooted by his subsequent transfer to the TDCJ. Insofar as he
seeks damages for the fact that his confinement in the Guadalupe
County Jail was more disagreeable than it would have been had he
been transferred immediately after his conviction to the TDCJ, his
claim is frivolous. In order to obtain relief under § 1983, a
plaintiff must prove that he was deprived of a Constitutional right
or federal statutory right and that the persons depriving him of
that right acted under color of law. Hernandez v. Maxwell, 905
F.2d 94, 95 (5th Cir. 1990). "[I]n the absence of an appropriate
state regulation a prisoner has no liberty interest in residence in
one prison or another." Jackson v. Cain, 864 F.2d 1235, 1250 (5th
Cir. 1989). "That life in one prison is much more disagreeable
than in another does not in itself signify that a Fourteenth
Amendment liberty interest is implicated when a prisoner is
transferred to the institution with the more severe rules." Id.
We have examined the applicable state law and his sentence and
commitment order, and we are not persuaded that Bilski has
demonstrated a liberty interest created by state law proscribing
his temporary confinement in the Guadalupe County Jail. The
district court did not abuse its discretion by dismissing this
claim as frivolous.
Bilski also asserted, at least arguably, a claim under the
Equal Protection Clause to an immediate transfer to the TDCJ and,
relatedly, for damages. In order to establish such a claim, Bilski
must show, inter alia, discrimination among persons similarly
situated. Bilski does not complain that he was treated any
differently than other transfer ready prisoners in the Guadalupe
County Jail. Instead, he focuses on the difference between the
treatment of transfer ready prisoners in the Guadalupe County Jail
and the treatment of inmates in the TDCJ. We agree with the Court
of Appeals for the Fourth Circuit that the Equal Protection Clause
is not implicated simply because county authorities treat their
transfer ready prisoners differently than the TDCJ treats its
inmates. See Strickler v. Waters, 989 F.2d 1375, 1389 (4th Cir.),
cert. denied, 114 S. Ct. 393 (1993) ("[A]bsent a right to have been
housed in a state facility during the time he was confined at [a
local jail] . . . [Plaintiff] was not similarly situated for equal
protection purposes with state prisoners in state facilities . . .
."); Kersh v. Bounds, 501 F.2d 585, 588 (4th Cir. 1974) ("[S]ince
the county prisoners are treated alike and the Department prisoners
are treated alike, . . . there is no equal protection violation."),
cert. denied, 420 U.S. 925 (1975).
Bilski's argument that he has been denied the ability to earn
good time credits was not set forth in his complaint. In any
event, constituting (as it does) a challenge to the length of his
confinement, it would not be cognizable under § 1983. Finally,
Bilski's claim that jail officials interfered with his right of
access to the courts or his First Amendment rights by destroying or
denying his mail and his claims regarding medical and dental care
were also not included in his complaint. In any event, they fail
either because they were conclusory (the claims regarding medical
and dental care) or because Bilski did not assert how he had been
prejudiced (his claims regarding denial of access to the courts and
his First Amendment rights).
The judgment of the District Court is AFFIRMED.