F I L E D

United States Court of Appeals

Tenth Circuit

SEP 24 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOE JORDAN,

Plaintiff-Appellant,

v.

JIM BOWLES, Sheriff of Dallas

County, GARY JOHNSON, Governor,

State of New Mexico, GEORGE W.

BUSH, JOHN DOE, DAN MORALES,

TOM UDALL, E.L. MCMILLIAN,

KARL SANNICKS, RON LYTLE,

MARK W. BUSH, CHIEF

MCMILLIAN, SHARON L.

MCMILLIAN, JOE WILLIAMS,

JOHN SHANKS, DONALD DORSEY,

NEW MEXICO CORRECTIONS

DEPARTMENT, DALLAS COUNTY

JAIL, DALLAS COUNTY

SHERIFF’S DEPARTMENT,

Defendants-Appellees.

ANDREW MILLER,

Plaintiff-Appellant,

v.

JIM BOWLES, Sheriff of Dallas

County, GARY JOHNSON, Governor,

State of New Mexico, GEORGE W.

BUSH, JOHN DOE, DAN MORALES,

TOM UDALL, E.L. MCMILLIAN,

No. 96-2169

(D.C. No. CIV-96-837-LH)

(D. N.M.)

No. 96-2183

(D.C. No. CIV-96-837-LH)

(D. N.M.)
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KARL SANNICKS, RON LYTLE,

MARK W. BUSH, CHIEF

MCMILLIAN, SHARON L.

MCMILLIAN, JOE WILLIAMS,

JOHN SHANKS, DONALD DORSEY,

NEW MEXICO CORRECTIONS

DEPARTMENT, DALLAS COUNTY

JAIL, DALLAS COUNTY

SHERIFF’S DEPARTMENT,

Defendants-Appellees.

WILLIAM FRY,

Plaintiff-Appellant,

v.

JIM BOWLES, Sheriff of Dallas

County, GARY JOHNSON, Governor,

State of New Mexico, GEORGE W.

BUSH, JOHN DOE, DAN MORALES,

TOM UDALL, E.L. MCMILLIAN,

KARL SANNICKS, RON LYTLE,

MARK W. BUSH, CHIEF

MCMILLIAN, SHARON L.

MCMILLIAN, JOE WILLIAMS,

JOHN SHANKS, DONALD DORSEY,

NEW MEXICO CORRECTIONS

DEPARTMENT, DALLAS COUNTY

JAIL, DALLAS COUNTY

SHERIFF’S DEPARTMENT,

Defendants-Appellees.

No. 96-2211

(D.C. No. CIV-96-837-LH)

(D. N.M.)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The 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.

1 Although the district court stated its dismissal was pursuant to § 1915(d),

we believe the court actually intended to cite § 1915(e)(2)(B)(i), which formerly

was § 1915(d).

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ORDER AND JUDGMENT*

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

Plaintiffs, appearing pro se, appeal the district court’s dismissal of their

actions under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(d).1

 Plaintiffs, who

were convicted of various crimes in New Mexico, were transferred from New

Mexico state corrections facilities to the Dallas, Texas, County Jail pursuant to an

agreement between the two states. After their transfers and while they were
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confined in the Dallas County Jail, they, along with many other inmates, brought

individual habeas corpus petitions in the United States District Court for the

Northern District of Texas. They alleged their transfers violated their due process

rights pursuant to the United States Constitution, New Mexico statutes and

policies, and the consent decree in Duran v. Johnson, No. CIV-77-721 JC

(D. N.M.). Specifically, the plaintiffs alleged (1) the transfers were made so that

the Duran consent decree would not apply; (2) the transfers were not made in

accordance with New Mexico statutes or regulations; (3) there was no legal

contract entered into by New Mexico and Texas before the transfers; (4) New

Mexico did not follow proper procedures and accord plaintiffs due process before

the transfers; (5) New Mexico law prohibits incarceration in a county jail, see

N.M. Stat. Ann. § 31-20-2(A); and (6) the New Mexico Secretary of Finance and

Administration had not approved the transfer contract before the plaintiffs’

transfers took place, as required by the New Mexico Joint Powers Agreements

Act, see id. § 11-1-3.

The Texas district court consolidated the petitions and determined that they

should be construed as civil rights complaints pursuant to 42 U.S.C. § 1983. It

further determined that both it and the United States District Court for the District

of New Mexico had concurrent jurisdiction over the transfer issues, and

transferred the case to New Mexico.
2 No documents relating to the Duran litigation were included as part of the

record in this action. The habeas corpus petition and civil rights complaint

attached to plaintiff Miller’s brief, however, were included in the record and,

contrary to his suggestion, presumably were reviewed by the district court.

3 Although the district court stated it was also dismissing pursuant to

Rule 12(b)(6), its discussion and holdings centered on whether the complaint was

frivolous. Thus, we review only for frivolousness. In doing so, we need not

resolve the problematic issue of the standard of review applicable to dismissals

under both § 1915(e)(2)(B)(i) for frivolousness and Rule 12(b)(6) for failure to

state a claim upon which relief may be granted. The standard of review for

§ 1915(e)(2)(B)(i) dismissals, as indicated above, is abuse of discretion. See

Schlicher, 111 F.3d at 779. Whereas, the standard of review for Rule 12(b)(6)

dismissals is de novo. See Chemical Weapons Working Group, Inc. v. United

States Dep’t of the Army, 111 F.3d 1485, 1490 (10th Cir. 1997).

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The New Mexico district court dismissed the action sua sponte. It

determined that because plaintiffs had no liberty interest in placement in any

particular prison, their claims challenging their transfers to Texas were frivolous. 

Also, the court determined that any claims relating to Duran must be addressed in

that ongoing proceeding. The court took judicial notice that the class plaintiffs in

Duran had filed briefs and motions relating to the events complained of in this

case and that an order entered in the Duran litigation approved a stipulation of the

parties resolving the issues raised in those motions and briefs.2 Thus, the district

court concluded that plaintiffs’ Duran claims also were frivolous.

We review a dismissal pursuant to § 1915(e)(2)(B)(i) for an abuse of

discretion.3 See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). 

A complaint is frivolous if it lacks an arguable basis in law or fact. See Green v.
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Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995) (citing Neitzke v. Williams,

490 U.S. 319, 327 (1989)). In applying these standards, we liberally construe a

pro se litigant’s complaint. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Before addressing the correctness of the New Mexico district court’s

dismissal of plaintiffs’ action, we first consider their challenge to the Texas

district court’s conversion of the action from habeas corpus to civil rights. 

Habeas corpus applies when a state prisoner challenges the fact or duration of his

confinement based on allegedly unconstitutional state administrative action,

whereas civil rights cases relate to a state’s alleged unconstitutional treatment of

a prisoner while in confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489,

498-99 (1973). Although plaintiffs contended the transfers made their sentences

illegal and New Mexico therefore forfeited its authority to require imprisonment

for their New Mexico convictions, they did not raise issues suitable for decision

under the laws of habeas corpus. Furthermore, they previously concurred with

construing the habeas corpus petition as a civil rights complaint. See II R. Doc.

22 at 1 (No. 96-2211). Accordingly, we conclude the argument is without merit.

Plaintiffs argue that their protected liberty interests were violated by their

transfer to the Dallas County Jail. Protected liberty interests may be derived from

either the Due Process Clause or a state’s laws. See Hewitt v. Helms, 459 U.S.

460, 466 (1983). It is settled that plaintiffs have no constitutional right to be
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imprisoned in any particular facility. See Olim v. Wakinekona, 461 U.S. 238,

245, 248 (1983); see also Meachum v. Fano, 427 U.S. 215, 225 (1976)

(determining that less favorable prison conditions are not enough to implicate

liberty interest). 

Because the Due Process Clause itself does not create a liberty interest in

the context of a transfer, we must determine whether state law creates such an

interest.

States may under certain circumstances create liberty interests which

are protected by the Due Process Clause. But these interests will be

generally limited to freedom from restraint which, while not

exceeding the sentence in such an unexpected manner as to give rise

to protection by the Due Process Clause of its own force, nonetheless

imposes atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.

Sandin v. Conner, 515 U.S. 472, ___, 115 S. Ct. 2293, 2300 (1995) (citations

omitted) (deciding search for mandatory language in state statute to determine if

liberty interest was created was no longer controlling). Because a transfer does

not affect the duration of a sentence, a transfer must impose an atypical or a

significant hardship before it can be held to create a liberty interest under state

law.

The New Mexico statutes do not create such a liberty interest. New Mexico

may contract with any state for the confinement of prisoners. See N.M. Stat. Ann.

§ 31-20-2(C)(5) (permitting transfer if other state has entered into “corrections
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control agreement” with New Mexico); id. § 11-1-3 (providing under Joint

Powers Agreements Act that two or more agencies, including one from another

state, may enter into contracts); id. at §§ 13-1-135A, 13-1-56 (providing for

procurement agreements with other state agencies). These New Mexico laws

amount “to nothing more than procedural requirements for the management of”

state corrections facilities; “such procedural requirements . . . ‘are not designed to

confer rights on inmates.’” See Counts v. Newhart, 951 F. Supp. 579, 584 (E.D.

Va. 1996) (quoting Sandin, 115 S. Ct. at 2299), aff’d, 116 F.3d 1473 (4th Cir.

1997) (table); see also Woodard v. Ohio Adult Parole Auth., 107 F.3d 1178, 1183

(6th Cir.) (“[E]ven though state law plays a role in determining the existence of

property or liberty interests, the ultimate question of the degree of due process

protection to be afforded under the Constitution remains a federal one.”), cert.

granted, 117 S. Ct. 2507 (1997).

No matter whether a prisoner is confined in a jail or a prison, the prisoner

is confined in an environment within the normal limits of custody which the state

is authorized to impose by the conviction. See Counts, 951 F. Supp. at 585

(citing Olim, 461 U.S. at 247). Because there was no showing of significant

atypical circumstances, such as placement in an environment not intended for

incarceration for criminal activity, the transfers did not violate any constitutional

rights. See id.
4 Even if there had been a violation of rights, and there was none, we note

that all three plaintiffs have been returned to New Mexico. Plaintiffs Fry and

Jordan were transferred back to New Mexico even before the Texas district court

transferred this case to the New Mexico district court. Despite the transfer back

(continued...)

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Because plaintiffs had no protected liberty interest, they were not entitled

to any particular process before their transfers. See Olim, 461 U.S. at 250

(“Process is not an end in itself. Its constitutional purpose is to protect a

substantial interest to which the individual has a legitimate claim of

entitlement.”); Meachum, 427 U.S. at 229 (holding that Due Process Clause does

not require pretransfer hearing); Frazier v. Dubois, 922 F.2d 560, 561-62 (10th

Cir. 1990) (holding that inmate is generally not entitled to due process before

transfer).

We agree with the district court that any allegations concerning the Duran

consent decree should be pursued within the Duran litigation. Furthermore,

plaintiffs do not dispute in any more than a conclusory fashion the district court’s

determination that the class plaintiffs in Duran had raised the issues complained

of here in that case and that the Duran court had approved a stipulation of the

parties resolving the issues.

Because there are no facts or law from which a due process or any other

claim may be inferred, we conclude the district court correctly determined this

action was frivolous.4 These appeals are frivolous under 28 U.S.C.
4

(...continued)

to New Mexico, the case probably is not moot. In their Texas district court

motion for an emergency injunction and restraining order, plaintiffs sought to

have their transfers back to New Mexico restrained. They argued that although

the transfers “tend[ed] to cure the original illegal transfer,” they would be in

further violation of their rights just as the original allegedly illegal transfers had

been. II R. Doc. 23 at 3 (No. 96-2211). 

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§ 1915(e)(2)(B)(i) for purposes of counting “prior occasions” under 28 U.S.C.

§ 1915(g). The appeals are DISMISSED. Plaintiff Miller’s motion for leave to

proceed in forma pauperis is DENIED.

Entered for the Court

Bobby R. Baldock

Circuit Judge