## 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.)-2-

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 No. 96-2211 (D.C. No. CIV-96-837-LH) (D. N.M.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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.

1 Although the district court stated its dismissal wa s pursuant to § 1915(d), we believe the court actually intended to cite § 19 15(e)(2)(B)(i), which formerly was § 1915(d). -3- ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument. Plaintiffs, appearing pro se, appeal the district c ourt’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, wer e transferred from New Mexico state corrections facilities to the Dallas, Texas, County Jail pursuant to an agreement between the two states. After their tran sfers and while they were-4-

confined in the Dallas County Jail, they, along wit h many other inmates, brought individual habeas corpus petitions in the United St ates District Court for the Northern District of Texas. They alleged their tra nsfers violated their due process rights pursuant to the United States Constitution, New Mexico statutes and policies, and the consent decree in Duran v. Johnso n , No. CIV-77-721 JC (D. N.M.). Specifically, the plaintiffs alleged (1 ) the transfers were made so that the Duranconsent 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 befor e the transfers; (4) New Mexico did not follow proper procedures and accord plaintiffs due process before the transfers; (5) New Mexico law prohibits incarce ration in a county jail, see N.M. Stat. Ann. § 31-20-2(A); and (6) the New Mexic o Secretary of Finance and Administration had not approved the transfer contra ct 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 purs uant to 42 U.S.C. § 1983. It further determined that both it and the United Stat es 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 Duranlitigation 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 reviewe d by the district court.

3 Although the district court stated it was also dism issing pursuant to Rule 12(b)(6), its discussion and holdings centeredon 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 re view applicable to dismissals under both § 1915(e)(2)(B)(i) for frivolousness andRule 12(b)(6) for failure to state a claim upon which relief may be granted. Th e 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). -5- The New Mexico district court dismissed the action sua sponte. It determined that because plaintiffs had no liberty i nterest in placement in any particular prison, their claims challenging their t ransfers to Texas were frivolous. Also, the court determined that any claims relating to Duranmust be addressed in that ongoing proceeding. The court took judicial n otice that the class plaintiffs in
Duranhad filed briefs and motions relating to the event s complained of in this case and that an order entered in the Duranlitigation approved a stipulation of the parties resolving the issues raised in those motion s and briefs. 2 Thus, the district court concluded that plaintiffs’ Duranclaims 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 ba sis in law or fact. See Green v.-6-

Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995) (citing Neitz ke v. Williams , 490 U.S. 319, 327 (1989)). In applying these stand ards, 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 habe as corpus to civil rights. Habeas corpus applies when a state prisoner challen ges the fact or duration of his confinement based on allegedly unconstitutional state administrative action, whereas civil rights cases relate to a state’s alle ged 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 auth ority to require imprisonment for their New Mexico convictions, they did not rais e issues suitable for decision under the laws of habeas corpus. Furthermore, theypreviously concurred with construing the habeas corpus petition as a civil ri ghts complaint. See II R. Doc. 22 at 1 (No. 96-2211). Accordingly, we conclude th e argument is without merit. Plaintiffs argue that their protected liberty inter ests were violated by their transfer to the Dallas County Jail. Protected libe rty interests may be derived from either the Due Process Clause or a state’s laws. S ee Hewitt v. Helms , 459 U.S. 460, 466 (1983). It is settled that plaintiffs hav e no constitutional right to be-7-

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 whethe r 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 manneras to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the in mate 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 instate statute to determine if liberty interest was created was no longer controll ing). Because a transfer does not affect the duration of a sentence, a transfer m ust impose an atypical or a significant hardship before it can be held to creat e 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-8-

control agreement” with New Mexico); id. § 11-1-3 (providing under Joint Powers Agreements Act that two or more agencies, in cluding 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 requirement s for the management of” state corrections facilities; “such procedural requ irements . . . ‘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 i n determining the existence of property or liberty interests, the ultimate questio n of the degree of due process protection to be afforded under the Constitution re mains 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 lim its 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 o f significant atypical circumstances, such as placement in an env ironment 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 t here 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 bef ore the Texas district court transferred this case to the New Mexico district co urt. Despite the transfer back (continued...) -9- Because plaintiffs had no protected liberty interes t, 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 constitutio nal 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 en titled to due process before transfer). We agree with the district court that any allegatio ns concerning the Duran consent decree should be pursued within the Duranlitigation. Furthermore, plaintiffs do not dispute in any more than a conclu sory 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 Durancourt 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 cou rt 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 t heir 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 illega l transfer,” they would be in further violation of their rights just as the origi nal allegedly illegal transfers had been. II R. Doc. 23 at 3 (No. 96-2211). -10- § 1915(e)(2)(B)(i) for purposes of counting “prior occasions” under 28 U.S.C. § 1915(g). The appeals are DISMISSED. Plaintiff M iller’s motion for leave to proceed in forma pauperis is DENIED.

Entered for the Court

Bobby R. Baldock Circuit Judge