1 10-1678-pr McMahon v. Fischer 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A**  **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A**  **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER**  **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 15 th** **day of November, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JON O. NEWMAN,** 8 **GERARD E. LYNCH,** 9 **Circuit Judges .**  10 11 - - - - - - - - - - - - - - - - - - - -X 12 **Michael McMahon,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 10-1678-pr** 16 17 **Brian Fischer, et al.,** 18 **Defendants-Appellees .**  19 - - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** Michael McMahon, pro se , 22 Stormville, NY. 23 24 **FOR APPELLEES:** Oren L. Zeve, Managing25 Administrative Assistant 26 Solicitor General, New York, NY. 27 281 The named Defendants-Appellees were not served below and have indicated that, as a result, a brief will not be filed in this appeal. 2 Appeal from a judgment of the United States District 1 Court for the Southern District of New York (Preska, C.J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 4

**AND DECREED**that the District Court’s judgment is **AFFIRMED**
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6 Appellant Michael McMahon, pro se , appeals the District 7
Court’s sua sponte dismissal of his 42 U.S.C. § 1983 8 complaint for failure to state a claim pursuant to 28 U.S.C. 9 § 1915(e)(2). We assume the parties’ familiarity with the 10 underlying facts, the procedural history of the case, and 11 the issues on appeal. 1 12 In a nutshell, McMahon complains that he was kept in a 13 double-bunk cell for 63 days at one prison facility, and 14 then transferred to another facility at which he continued 15 to be double-bunked, notwithstanding 7 New York Code of 16 Rules & Regulations § 1701.7, which limits such 17 accommodation to 60 days absent the inmate’s consent, and a 18 Directive of the Department of Corrections to the same 19 effect. 203 We review de novo a district court’s dismissal of a 1 complaint pursuant to Section 1915(e)(2). See Giano v. 2 Goord , 250 F.3d 146, 150 (2d Cir. 2001 ). The complaint must 3 plead “enough facts to state a claim to relief that is 4 plausible on its face.” Bell Atlantic Corp. v. Twombly , 550 5 U.S. 544, 570 (2007). Although all factual allegations 6 contained in the complaint are assumed to be true, this 7 tenet is “inapplicable to legal conclusions.” Ashcroft v. 8 Iqbal , 129 S. Ct. 1937, 1949 (2009). We construe pro se 9 complaints liberally. See Shomo v. City of New York , 579 10 F.3d 176, 183 (2d Cir. 2009); Harris v. Mills , 572 F.3d 66, 11 71-72 (2d Cir. 2009). 12 **[1]** The District Court’s dismissal of Appellant’s First 13 Amendment retaliation claim, which alleged that the transfer 14 was on account of his protest of continued double-bunking, 15 is affirmed for substantially the same reasons as those 16 articulated by the District Court in its March 22, 2010 17 order. 18 **[2]** We likewise affirm the dismissal of McMahon’s claim 19 that double-bunking is unconstitutional. Double-bunking is 20 not unconstitutional per se , see Rhodes v. Chapman , 452 U.S. 21 337, 347-50 (1981), and McMahon’s claim is not premised on 22 some consequence or ramification of double-bunking that 234 might amount to the deprivation of a constitutional right. 1 See, e.g. , id. (observing that the double-bunking in that 2 case “did not lead to deprivations of essential food, 3 medical care, or sanitation,” and did not “increase violence 4 among inmates or create other conditions intolerable for 5 prison confinement”). 6 **[3]** As to the dismissal of McMahon’s procedural due process 7 claim, he had to show (1) the existence of a 8 constitutionally protected liberty or property interest and 9 (2) an entitlement to process before being deprived of that 10 interest. See Perry v. McDonald , 280 F.3d 159, 173 (2d Cir. 11 2001). 12 “A liberty interest may arise from the Constitution 13 itself . . . or . . . from an expectation or interest 14 created by state laws or policies.” Wilkinson v. Austin , 15 545 U.S. 209, 221 (2005) (internal citations omitted); see 16 also Sandin v. Conner , 515 U.S. 472, 479-81 (1995). In 17 order to demonstrate a state-created liberty interest, a 18 prisoner must show that “‘state statutes or regulations 19 require, in language of an unmistakably mandatory character, 20 that a prisoner may not suffer a particular deprivation 21 absent specified predicates.’” Burgos Vega v. Lantz , 596 22 F.3d 77, 83 (2d Cir. 2010) (quoting Welch v. Bartlett , 196 235 F.3d 389, 392 (2d Cir. 1999)). The Regulation on which 1 McMahon relies provides, inter alia , that 2 [n]o inmate shall be confined in a double-cell for a 3 period of more than 60 days unless such inmate 4 volunteers to remain in the double-cell for a longer 5 period of time. At the expiration of the 60 days, if 6 an inmate does not volunteer to remain in a double7 cell, the inmate shall be moved to a single-cell or 8 multiple occupancy housing at either his current 9 facility or a new facility. 10 7 N.Y.C.R.R. § 1701.7(d). However, that Regulation, along 11 with the Directive on which McMahon relies, implements N.Y. 12 Correct. L. § 137(4) (McKinney 2011), which provides that 13 each inmate be given sleeping accommodations in a separate 14 cell “[w]henever there shall be a sufficient number of cells 15
. . . .” 16 Even if we were to assume arguendo that these texts are 17 “unmistakably mandatory [in] character,” McMahon could not 18 win because he fails to show that double-bunking “subject[s] 19 the prisoner to ‘atypical and significant hardship . . . in 20 relation to the ordinary incidents of prison life,’” Burgos 21 Vega , 596 F.3d at 83 (quoting Sandin , 515 U.S. at 484) 22 (omission in original)). Nor can McMahon state a procedural 23 due process claim based on the transfer from one prison to 246 another. A prisoner has no right to housing in a particular 1 facility and no right to process regarding a transfer to 2 another facility under these circumstances. See Matiyn v. 3 Henderson , 841 F.2d 31, 34 (2d Cir. 1988). 4
5 We have considered all of McMahon’s additional 6 arguments and find them to be without merit. Accordingly, 7 the judgment of the District Court is **AFFIRMED**
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9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13