IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-10462
Summary Calendar
_______________
MICHAEL ODEL RICHARDS,
Plaintiff-Appellant,
VERSUS
S. O. WOODS, JR.,
Director of Classification,
Texas Department of Criminal Justice,
Institutional Division,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(2:94 CV 275)
_________________________
July 26, 1995
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Michael Richards appeals the dismissal, as frivolous under
28 U.S.C. § 1915(d), of his state prisoner's civil rights suit
filed pursuant to 42 U.S.C. § 1983. Finding no error, we affirm.
*
Local Rule 47.5.1 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that this opinion should not be published.
I.
Proceeding in forma pauperis ("IFP"), Richards alleged that in
violation of the Eighth Amendment, S. O. Woods, the Director of
Classifications for the Texas Department of Criminal Justice
(TDCJ), acted with "deliberate indifference" to his medical
condition by failing to consider his history of asthma before
assigning him to the T.L. Roach Unit in Childress, Texas. The
magistrate judge determined that Richards's complaint lacked an
arguable basis in law or fact and recommended dismissal of his
complaint pursuant to § 1915(d). The district court conducted an
independent review of the record and considered Richards's
objections to the magistrate judge's report and recommendation
before it adopted the report, denied Richards's objections, and
dismissed his complaint.
II.
A district court may dismiss a frivolous IFP complaint.
Denton v. Hernandez, 504 U.S. 25 (1992). A complaint is frivolous
if it lacks an arguable basis in law or fact. Ancar v. Sara
Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915(d)
dismissal is reviewed an abuse of discretion. Hernandez,
504 U.S. at 33.
Richards alleges that Woods acted with deliberate indifference
to his medical condition because Woods did not consider his
bronchial asthma condition before assigning him to a unit located
in the Texas panhandle. He also contends that he has been infected
2
with tuberculosis since he arrived at the Roach Unit and that he is
unsure whether this is because of the dry climate, his work
assignment in the laundry, or the crop dusting that occurs outside
the compound.
Although Richards attempts to characterize his claim as one
based upon the Eighth Amendment and the deliberate-indifference-to-
medical-needs standard, he really contests his unit assignment and
desires a transfer to another unit. Richards does not request
medical care and does not contend that he was denied adequate
medical treatment. He contends that Woods did not follow prison
policies regarding the placement of prisoners with medical
conditions when he assigned Richards to the Roach Unit.
"[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).
To bring an action under § 1983, a claimant must identify "a
protected life, liberty, or property interest, and then prove that
government action resulted in a deprivation of that interest." See
San Jacinto Sav. & Loan Ass'n v. Kacal, 928 F.2d 697, 700 (5th Cir.
1991). Section 1983 does not create substantive rights; it
provides a remedy for the deprivation of rights created elsewhere.
Id. See Sandin v. Conner, 63 U.S.L.W. 4601 (U.S. June 19, 1995).
Richards attached to his objection to the magistrate judge's
report a portion of a TDCJ "Classification Plan" policy and
procedure that states that "inmates who require special consider-
ation due to their medical conditions . . . will be assigned to
3
units . . . commensurate with their special medical needs." The
policy requires that all health-related restrictions must be
identified by the attending physician and noted on an inmate's
health-summary-for-classification form.
Even assuming, arguendo, that this policy created a liberty
interest in Richards's place of incarceration, Richards has failed
to show that prison officials violated the policy. On his own
health-summary-for-classification form, which Richards provided to
the district court, there was "no restriction" on his basic housing
assignment. By his own admission, TDCJ has followed its policy.
Because Richards's claim does not have an arguable basis in law or
fact, the district court did not abuse its discretion by dismissing
his complaint.
III.
Richards contends that he requested an evidentiary hearing and
was denied an opportunity to present his issues and facts to the
court. He further contends that if he had been granted a hearing,
his case would not have been dismissed as frivolous.
In Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), we
encouraged district courts to "flesh out the conclusory statements
in pro se pleadings" to determine whether the prisoner could state
a claim. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
Not "all or even most prisoner claims require or deserve a Spears
hearing." Id. at 1120.
In determining whether the district court abused its discre-
4
tion by dismissing without a hearing, we consider whether
Richards's "allegations may pass section 1915(d) muster" with
additional factual development. Eason v. Thaler, 14 F.3d 8, 10
(5th Cir. 1994). Richards has not stated a § 1983 claim with an
arguable basis in law or fact. He has requested a remedy under
§ 1983, but he has no liberty interest in a specific unit assign-
ment, and the conduct he complains of does not rise to the level of
a constitutional violation. See Jackson, 864 F.2d at 1250;
Hernandez, 788 F.2d at 1158.
Richards has not demonstrated that a hearing would be helpful
in developing facts sufficient to state a claim under § 1983.
Therefore, the district court did not abuse its discretion by
dismissing Richards's complaint without conducting a Spears
hearing.
AFFIRMED.
5