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

### FEB 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SCOTT DUFFY,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No.96-8017 (Dist. of Wyoming) (D.C. No. 94-CV-278)

RICHARD DOWDELL,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No. 96-8018 (Dist. of Wyoming) (D.C. No. 94-CV-278)-2-

CLARENCE FISHER,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No.96-8019 (Dist. of Wyoming) (D.C. No. 94-CV-278)

FRANK GARCIA,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No. 96-8020 (Dist. of Wyoming) (D.C. No. 94-CV-278)-3-

ALEX VOGEL,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No. 96-8021 (Dist. of Wyoming) (D.C. No. 94-CV-278)

TERRY HUGHES,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No. 96-8022 (Dist. of Wyoming) (D.C. No. 94-CV-278)-4-

DONALD GEE,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No. 96-8023 (Dist. of Wyoming) (D.C. No. 94-CV-278)

DAVID HARTLEY,

Plaintiff-Appellant,

v. JUDITH UPHOFF, DUANE SHILLINGER, JAMES FERGUSON, RONALD RUETTGERS, STANLEY JAMES and MARYJANE RULE,

Defendants-Appellees. No. 96-8024 (Dist. of Wyoming) (D.C. No. 94-CV-278)* This order and judgment is not binding precedent, e xcept under the

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

1 Because the Appellants filed their notices of appea l on March 1, 1996, prior to the enactment of the Prison Litigation Ref orm Act, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), the Act’s amendment s to 28 U.S.C. § 1915 do not apply here. White v. Gregory , 87 F.3d 429, 430 (10th Cir.), cert. denied , 1996 WL 604229 (U.S. Dec. 2, 1996) (No. 96-6330). -5- ORDER AND JUDGMENT *

Before, SEYMOUR, PORFILIO, and MURPHY , 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 ause is therefore ordered submitted without oral argument. Scott Duffy, Richard Dowdell, Clarence Fisher, Frank Garcia, Alex Vogel, Terry Hughes, Donald Gee, and David Hartley (herein after “the Appellants”), appeal from the district court’s dismissal of theirpro se 42 U.S.C. § 1983 complaints as frivolous under 28 U.S.C. § 1915(d) ( 1994). 1 This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.2Appellants assert that their “claim here is primari ly that of a violation of

substantive due process.” They also contend in pas sing, however, that “their placement in segregation violated their rights to p rocedural due process, equal protection and their right to be free from cruel an d unusual punishment.” Nevertheless, the Appellants have not provided any independent analysis or briefing of those claims. Accordingly, Appellants have waived consideration of these issues on appeal. United States v. Hardwell , 80 F.3d 1471, 1492 (10th Cir. 1996) (holding that defendant waived consideration of issue on appeal by “failing to make any argument or cite any authority to suppo rt his assertion.”). -6- The Appellants brought this suit in the United Stat es District Court for the District of Wyoming alleging that certain officers of the Wyoming State Prison had violated the Appellants’ rights to substantive and procedural due process, equal protection, and freedom from cruel and unusua l punishment. According to the Appellants, the prison officials had arbitrarily and capriciously placed the Appellants in administrative segregation in an effo rt to “break[] their spirit.” The district court dismissed the complaint as frivolous under section 1915(d), finding as follows: (1) the due process clause does not con fer a liberty interest in placement within the general prison population; (2) Appellants had not identified an applicable state law creating such an interest; (3) Appellants’ equal protection claim was conclusory and, therefore, did not state a claim; and (4) the conduct complained of, even if proved, did not state a clai m under the Eighth Amendment. On appeal, Appellants contend that the due process clause does indeed create a substantive right to remain within the general pris on population. 2-7-

A district court may dismiss an in forma pauperiscomplaint if it determines that the action is frivolous. 28 U.S.C. § 1915(d) (1994). A complaint is frivolous when it “lacks an arguable basis either in law or i n fact.” Neitzke v. Williams , 490 U.S. 319, 325 (1989). That is to say, a compla int is frivolous if it is based on an “indisputably meritless legal theory” or on “cle arly baseless” facts. Id. at 327. On appeal, construing pro se pleadings liberally, Haines v. Kerner , 404 U.S. 519, 520 (1972); Brown v. Zavaras , 63 F.3d 967, 970 (10th Cir. 1995), this court reviews a section 1915(d) dismissal for abuse of di scretion. Denton v. Hernandez , 504 U.S. 25, 33 (1992); Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995). We conclude that the district court abused its disc retion in dismissing Appellants’ complaint as frivolous. Although this Circuit has yet to address the issue, at least two other courts have recognized th e existence of a substantive due process claim post- Sandin v. Connor , 115 S. Ct. 2293 (1995). See Birdo v. Smith , No. 95-5970, 1996 WL 465031, at *4 (6th Cir. Aug. 1 3, 1996); Smith v. McCaughtry , Nos. 94-2743, 94-2930, and 95-2609, 1996 WL 13786 9, at *4-5 (7th Cir. Mar 19, 1996). Accordingly, this court is notprepared to say that the Appellants’ substantive due process claims are base d on an “indisputedly meritless legal theory.”3 We note that Appellants do not contend that an exis ting state regulation

creates a liberty interest in remaining in the gene ral prison population. Even if Appellants had identified such a regulation, it is far from clear that such a regulation would create a liberty interest in light of the recent decision in Sandin v. Conner , 115 S. Ct. 2293 (1995). Although Sandin recognized that prison regulations could potentially create a liberty inte rest protected by the Due Process Clause, it held that these interests are generally limited to freedom from restraint that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 2300. Furthermore, confinement in administrative segregation is not the type of “atyp ical, significant deprivation” in which a liberty interest might be created. Id. at 2301. -8- Despite our conclusion that Appellants’ complaint i s not frivolous, we nevertheless affirm. Assuming, without deciding, that the substantive component of the Due Process Clause protects prisoners agains t arbitrary changes in their prison classifications, it is clear that the Appell ants have not alleged facts rising to the high standard necessary to state such a clai m. Williams v. City & County of
Denver , 99 F.3d 1009, 1015 (10th Cir. 1996) (holding thatplaintiff asserting substantive due process violation must assert egreg ious and outrageous conduct that is so fraught with unreasonable risk as to sho ck the conscience). We have reviewed in detail the acts alleged by the appellants and find neither the length of incarceration nor the conditions of administrative segregation sufficient to shock the conscience. 3 Because Appellants’ claims are not indisputedly mer itless, we hereby
GRANT their motion to proceed in forma pauperison appeal. The judgment of-9-

the United States District Court for the District o f Wyoming dismissing Appellants’ complaint is hereby AFFIRMED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge