* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAR 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHNNY E. LEE, Plaintiff-Appellant,

v. LARRY A. FIELDS; MICHAEL W. CARR; HENRY TURNER, Defendants-Appellees. No. 95-6414 (D.C. No. CV-95-207) (W.D. Okla.)

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 Mr. Lee filed his notice of appeal on November 13 , 1995, prior to the

effective date of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996). Therefore, the Actdoes not apply. See White v. Gregory , 87 F.3d 429, 430 (10th Cir.), cert. denied, 117 S. Ct. 528 (1996).

2On September 13, 1994, Mr. Lee was transferred fr om the Jess Dunn Correctional Center in Taft, Oklahoma, a minimum se curity facility, to the maximum security unit of the Oklahoma State Peniten tiary in McAlester, Oklahoma. On September 19, 1994, he was moved to t he Lexington Correctional Center in Lexington, Oklahoma, a medium security fa cility, where he currently resides.

-2- Mr. Johnny E. Lee (Mr. Lee), appearing pro se , appeals the district court's order of October 24, 1995, granting the defendants' motion for summary judgment on his civil rights complaint. 1

Mr. Lee is currently an Oklahoma state prisoner. O n February 9, 1995, he initiated this action pursuant to 42 U.S.C. § 1983, alleging the defendants violated his constitutional rights by transfering him from aminimal security facility to a medium security facility within Oklahoma without ho lding a hearing. 2 On September 26, 1995, the magistrate judge recommende d the defendants' motion for summary judgment be granted on the grounds thatMr. Lee's claims were without merit. On October 24, 1995, the district c ourt adopted the Report and Recommendation of the magistrate judge, granted def endants' motion for summary judgment, and denied Mr. Lee's motion to am end his complaint.3 Although Mr. Lee renews his equal protections all egation on appeal, he

provides no arguments or facts in support thereof. Accordingly, we will not consider his allegation further.

-3- On appeal, Mr. Lee contends (1) his liberty interes ts and constitutional rights to due process and equal protection were vio lated when he was transfered from a minimum security facility to a medium securi ty facility within Oklahoma; 3 (2) he was deprived of a full and fair hearing by t he district court's denial of his discovery motion; and (3) the district court abused its discretion in granting summary judgment in favor of defendants.
In Meachum v. Fano , 427 U.S. 215, 216 (1976), the Supreme Court held: The Due Process Clause of the Fourteenth Amendment [does not entitle] a state prisoner to a hearing when he is transferred to a prison the conditions of which are substantially le ss favorable to [the prisoner], absent a state law or practice condition ing such transfers on proof of serious misconduct or the occurrence of other specified events. See also Montanye v. Haymes , 427 U.S. 236, 242 (1976) ("[T]he Due Process Clause does not in itself subject an inmate's treat ment by prison authorities to judicial oversight. The Clause does not require he arings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive."). Mr. Lee fa ils to cite any state regulations creating any such requirement. See Twyman v. Crisp , 584 F.2d 352, 356-57 (10th Cir. 1978) (Department of Corrections' regulations and Oklahoma law regarding-4-

intra-state prison transfers and change of securitystatus make such decisions discretionary within general guidelines, and no due process rights exist that give rise to a right to judicial review). Therefore, ev en liberally construing Mr. Lee's appeal, it is evident his claims against the defend ants lack an arguable legal basis and are, thus, frivolous under 28 U.S.C. § 1915(d). See Neitzke v. Williams , 490 U.S. 319, 325 (1989) ("an appeal on a matter of law is frivolous where '[none] of the legal points [are] arguable on their merits.'" (Quoting Anders v. California , 386 U.S. 738, 744 (1967))). Additionally, we holdl Mr. Lee's remaining arguments are equally frivolous.

For the reasons set forth above, Mr. Lee's motion f or leave to proceed in forma pauperis is DENIED and this appeal is DISMISSED

.

Entered for the Court

WADE BRORBY United States Circuit Judge