## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

USMAN SHEHU SULE, Petitioner-Appellant,

v. B.R. STORY, Respondent-Appellee. No. 96-1340 (D.C. No. 95-D-262) (D. Colo.)

USMAN SHEHU SULE, Plaintiff-Appellant,

v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 96-1417 (D.C. No. 95-S-1601) (D. Colo.)

USMAN SHEHU SULE, Plaintiff-Appellant,

v. WARDEN, ADX FLORENCE, COLORADO; LEE GREEN, DHO, Defendants-Appellees. No. 96-1441 (D.C. No. 96-S-1473) (D. Colo.)-2-

USMAN SHEHU SULE, Plaintiff-Appellant,

v. WARDEN, ADX FLORENCE, COLORADO, Defendant-Appellee. No. 97-1049 (D.C. No. 96-S-621) (D. Colo.)

USMAN SHEHU SULE, Plaintiff-Appellant,

v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 97-1050 (D.C. No. 96-S-927) (D. Colo.)

USMAN SHEHU SULE, Plaintiff-Appellant,

v. PATRICK R. KANE, Defendant-Appellee. No. 97-1051 (D.C. No. 96-S-2102) (D. Colo.)* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

-3- USMAN SHEHU SULE, Plaintiff-Appellant,

v. MARTHA ANN PALUCH, U.S. Attorney; JENNIFER GRUNDY, Staff Attorney ADX; and G.L. HERSHBERGER, Warden, ADX, Defendants-Appellees. No. 97-1052 (D.C. No. 96-S-2014) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 In No. 96-1340, the district court dismissed Mr. Sule's claims in two

parts: on January 10, 1996, for failure to exhaustadministrative remedies, and on August 7, 1996, for failure to present an independe nt factual basis. Mr. Sule filed his notice of appeal on July 17, 1996. Under Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645 (10th Cir. 1988), Mr. Sule's prematur e notice of appeal ripened into an effective notice of appeal of the district court 's January 10, 1996, order. See Fed. R. App. P. 4(c). Although Mr. Sule failed to file a subsequent notice of appeal within thirty days of the district court's A ugust 7, 1996 order, he filed a motion and affidavit for leave to proceed on appeal on August 21, 1996, which we construe as the functional equivalent of a notice o f appeal enabling this court to review the district court’s final order. See Smith v. Barry , 502 U.S. 244, 248-49 (1992) ("If a document filed within the time specif ied by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal."). -4- Mr. Usman Shehu Sule, appearing pro se , appeals from the district court's entry of dispositive orders in seven cases. We exe rcise jurisdiction under 28 U.S.C. § 1291 and consolidate these appeals under F ed. R. App. P. 3(b).

In No. 96-1340, Mr. Sule appeals the district court 's dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for failure to exhaust administrative remedies and failure to pres ent an independent factual basis for his remaining claims. 1 See attached Exhibit A ¶5. In No. 96-1417, Mr. Sule appeals the district court's dismissal of his complaint, filed pursuant to the Federal Tort Claims Act, as barred by the statute o f limitations. See id . at ¶8. In No. 96-1441, Mr. Sule appeals the district court's dismissal of his civil rights complaint, filed pursuant to 42 U.S.C. § 1983 (1994 ), for failure to cure the deficiencies in his complaint within thirty days, a s ordered by the district court,-5-

and for failure to exhaust state remedies. See id . at ¶15. In No. 97-1049, Mr. Sule appeals the district court's grant of summary judgment in favor of the defendants in his civil rights complaint. See id . at ¶12. In No. 97-1050, Mr. Sule appeals the district court's dismissal of his Feder al Tort Claims Act complaint as barred by the statute of limitations. See id . at ¶14.

After a review of the record, it is clear appeals N os. 96-1340, 96-1417, 96- 1441, 97-1049 and 97-1050 do not present any issues containing an arguable basis in either law or fact. In these appeals, Mr. Sule' s claims are based on indisputably meritless legal theories and founded on clearly bas eless facts. See Neitzke v. Williams , 490 U.S. 319, 327-28 (1989). Therefore, each of these appeals is dismissed as frivolous, or as failing to state a cl aim upon which relief can be granted, within the meaning of 28 U.S.C. § 1915(e)( 2)(B) (1994). As such, appeals Nos. 96-1417, 96-1441, 97-1049, and 97-1050 count as "prior occasions" against Mr. Sule for the purposes of 28 U.S.C. § 19 15(g).

In Nos. 97-1051 and 97-1052, Mr. Sule appeals the d istrict court's dismissals of his two civil rights complaints pursu ant to 28 U.S.C. § 1915(g). See Exhibit A ¶¶16, 17. Section 1915(g) prohibits a pr isoner from bringing a civil action or proceeding in forma pauperis-6-

if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal ... that was dismissed on the grounds that it is frivolous, mali cious, or fails to state a claim upon which relief may be granted, unl ess the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). The district court relied on Mr. Sule's lengthy history of filing frivolous complaints to deny Mr. Sule leave to proceed in forma pauperis and to dismiss these two civil rights complaints pu rsuant to § 1915(g).

On appeal, Mr. Sule contends: (1) the district cou rt abused its discretion in denying him leave to proceed in forma pauperis; (2) the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, Title VIII, §§ 80 1-10, 110 Stat. 1321, violates his rights of access to the courts, due process andequal protection, and is therefore unconstitutional; and (3) the district co urt erroneously relied on actions disposed of on procedural grounds as "prior occasio ns" under § 1915(g). After a thorough review of the record, we conclude these cl aims are without merit.

First, once the district court determines § 1915(g) applies to a prisoner's civil complaint, the court must deny the prisoner l eave to proceed in forma pauperis. See 28 U.S.C. § 1915(g). Section § 1915(g) mandates:-7-

In no event shall a prisoner bring a civil action . .. [in forma pauperis] if the prisoner has, on 3 or more prior occasions . .. brought an action or appeal ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which rel ief may be granted

.... The district court cannot abuse its discretion in d oing what the statute mandates.

Second, Mr. Sule's challenges to the constitutional ity of the Prison Litigation Reform Act fail. Even if we assume Mr. Sule is correct that the Prison Litigation Reform Act (and thus § 1915(g)) is uncon stitutional, Mr. Sule cannot prevail on appeal because his underlying complaints fail to state a claim upon which relief may be granted. In the underlying civ il actions, Mr. Sule alleges deprivations of his constitutional rights stemming from events surrounding two separate disciplinary hearings. In No. 97-1051, Mr . Sule challenges the proceeding and findings of the disciplinary hearing for his alleged participation in a prison riot in Oregon, which allegedly resulted i n his transfer to the maximum security facility in Florence, Colorado. In No. 97 -1052, Mr. Sule challenges the events surrounding the disciplinary hearing initiat ed upon his failure to provide a urine sample.

To the extent Mr. Sule challenges the disciplinary measures taken, his claims fail. Under Sandin v.Conner , 515 U.S. 472, ___, 115 S.Ct. 2293, 2300-8-

(1995), inmates have no liberty interest based on r egulations regarding disciplinary measures unless those measures "impose [] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." We have reviewed the entire record before us on appeal and conclude Mr. Sule presented nothing to the district court that would indicate his disciplinary proceedings imposed atypical or significant hardshi p on him. To the extent Mr. Sule challenges the disciplinary hearings themselve s, Mr. Sule's claims also fail. To meet the standards of due process in a disciplin ary proceeding, the inmate must receive (1) advance written notice of the char ges; (2) an opportunity, consistent with safety and correctional goals, to p resent witnesses and documentary evidence; and (3) a written statement o f the evidence relied upon by the factfinder and the reasons for disciplinary act ion. Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (citing Superintendent, Mass. Correctional Inst. v. Hill , 472 U.S. 445, 454 (1985)). In these cases, Mr. S ule had adequate notice of the conduct he was accused of committing and evi dence supported the disciplinary hearing committee’s written findings. It is not our job to address the validity of that evidence. See Mitchell , 80 F.3d at 1445. Although Mr. Sule criticizes the disciplinary hearing procedure, he f ails to allege he was denied the opportunity to present witnesses or documentary evi dence. Accordingly, we conclude Mr. Sule failed to establish he was deniedthe minimum due process2In addition, all other outstanding motions in the se appeals are denied,

including Mr. Sule's motions for leave to proceed i n forma pauperis in Nos. 96- 1340, 96-1441, 97-1049, 97-1050, 97-1051, and 97-10 52. -9- required at a disciplinary hearing. Thus, Mr. Sule 's complaints failed to state a claim upon which relief may be granted and dismissa l is the appropriate disposition.

Third, in making its count pursuant to § 1915(g), the district court did not rely on any case where the final disposition was other than dismissal as frivolous within the meaning of § 1915(e)(2)(B)(i). The case s cited by Mr. Sule as showing the district court counted procedurally dismissed c ases were not cases relied upon by the district court. Hence, Mr. Sule’s assertionmisstates the district court’s discussion and is without merit.

For the foregoing reasons, we DISMISS appeals Nos. 97-1051 and 97-1052 for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 2

In a related proceeding, Mr. Sule informed this cou rt that on June 3, 1997, he was transfered from federal prison to the Immigr ation and Naturalization Services detention facility in Aurora, Colorado. See Sule v. Janet Reno , No. 97--10-

519 (pending mandamus action). We will assume, without deciding, that Mr. Sule is no longer a "prisoner" within the meaning of § 1 915. See 28 U.S.C. § 1915(h).; see also Ojo v. INS, 106 F.3d 680, 682 (5th Cir. 1997) (INS detainee n ot a "prisoner" within the meaning of § 1915(h) and the Prison Litigation Reform Act). As such, Mr. Sule's future filings can no lo nger be restricted pursuant to § 1915(g). However, because he initiated these app eals while incarcerated in federal prison and because we dismiss Mr. Sule's ap peals as frivolous and for failure to state a claim upon which relief may be g ranted, these appeals are "prior occasions" within the meaning of 28 U.S.C. § 1915(g ). Hence, Mr. Sule will be subject to § 1915(g) filing restrictions, if at som etime in the future Mr. Sule again finds himself a "prisoner" within the meaning of § 1915(h).

Entered for the Court

WADE BRORBY United States Circuit Judge