* This order and judgment is not binding precedent, except under the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. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 27 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMAL BEY,

Plaintiff-Appellant,

v.

CHARLES SIMMONS, Secretary,

Department of Corrections; STATE

OF KANSAS,

Defendants-Appellees.

No. 02-3350

(D.C. No. 00-CV-3445-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 Mr. Bey brought additional claims alleging that he was denied a diet and

prison call-outs to accommodate his religious faith, and the prison wrongly denied

his religious group funding to purchase books. He does not pursue these claims

on appeal. 

-2-

Plaintiff Jamal Bey, a former Kansas state prisoner proceeding pro se,

brought this action under 42 U.S.C. § 1983 alleging that defendants violated his

constitutional rights. The district court dismissed some of his claims as moot due

to his release from custody. Applying 28 U.S.C. § 1915(e)(2)(B)(ii), the court

dismissed Mr. Bey’s remaining claim that he was denied his due process rights

when he was erroneously classified as a medium-security inmate. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

Upon his entry into the prison system in August 2000, Mr. Bey was

classified as a minimum-security inmate, but when he arrived at the Lansing

Correctional Facility, he was classified as a medium-security inmate and housed

with maximum-security inmates. Approximately four months later, the error was

corrected. Mr. Bey sued, alleging he had a liberty interest in his classification

within the prison system and that interest was abridged when he was reclassified

as medium-security without any notice or explanation. 1

 He asserts that he suffered

mental anguish as a result of the error in classifying him. After allowing Mr. Bey

leave to amend his complaint, the district court dismissed this charge because it

did not state a claim upon which relief may be granted, as provided by
-3-

§ 1915(e)(2)(B)(ii) (“Notwithstanding any filing fee, or any portion thereof, that

may have been paid, the court shall dismiss the case at any time if the court

determines that . . . the action or appeal . . . fails to state a claim on which relief

may be granted.”). 

We review de novo the district court’s decision to dismiss a complaint under

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Perkins v. Kan. Dep’t of

Corr. , 165 F.3d 803, 806 (10th Cir. 1999). “Dismissal of a pro se complaint for

failure to state a claim is proper only where it is obvious that the plaintiff cannot

prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Curley v. Perry , 246 F.3d 1278, 1281 (10th Cir.)

(quotation omitted), cert. denied , 534 U.S. 922 (2001). Because plaintiff is

representing himself on appeal, his pleadings will be liberally construed. Haines

v. Kerner, 404 U.S. 519, 520 (1972). 

Mr. Bey maintains Kansas created a liberty interest in prison classification,

but he has not cited any state statute or prison regulation that creates or recognizes

such a liberty interest. We have held that there is no constitutionally protected

liberty interest in a prison classification. Templeman v. Gunter , 16 F.3d 367, 369

(10th Cir. 1994). Moreover, Mr. Bey’s allegations of the mental anguish he

suffered as a result of the error in classifying him did not impose “atypical and

significant hardship on [him] in relation to the ordinary incidents of prison life,”
-4-

or threaten to lengthen his term of confinement. Sandin v. Conner , 515 U.S. 472,

484, 487 (1995). Finally, Kansas law does not create a liberty interest regarding a

prison inmate’s security classification. Lile v. Simmons , 929 P.2d 171, 173 (Kan.

Ct. App. 1996); cf. Murphy v. Nelson , 921 P.2d 1225, 1234, 1235 (Kan. 1996)

(holding, as a matter of law, that Kansas prisoner has no liberty interest in

confinement in administrative segregation). Accordingly, Mr. Bey’s complaint

based on a liberty interest in his prison classification was properly dismissed as

failing to state a claim upon which relief may be granted. 

The district court granted Mr. Bey leave to proceed on appeal without

prepayment of the filing fee. Mr. Bey is reminded that he is obligated to continue

making partial payments until the entire fee has been paid. The judgment of the

district court is AFFIRMED. 

Entered for the Court

Mary Beck Briscoe 

Circuit Judge