* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 8 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COREY MAURICE TREADWELL, Plaintiff - Appellant, v. BUREAU OF PRISONS, Washington, D.C.; R. E. HOLT, Warden, USP-FLR; PAUL LAIRD, AW of Operations, USP-FLR; RUSSELL A. PERDUE, Former B/C unit manager; Seagoville, TX; K. KISSINGER, Former B/C unit manager; C. DE’HERRERA, Former case manager, central office, Washington, D.C.; M. L. MENDEZ, Current case manager, USP-FLR; RICHARD L. HUFF, Co-Director, Freedom of Information Appeal, Wash. D.C.; FOSTER-JOHNSON, Current Case Manager Coordinator, USP-FLR; G. L. HERSHBERGER, Regional Director, K.C., Defendants - Appellees. No. 01-1366 (D.C. No. 01-Z-449) (D. Colo.)

ORDER AND JUDGMENT *** After examining the briefs and the appellate recor d, this three-judge

panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. - 2 - Before EBEL , KELLY , and LUCERO , Circuit Judges. **

Corey Treadwell, a federal prisoner proceeding pro se, brought claims under the Privacy Act and Freedom of Information Ac t against the Bureau of Prisons (BOP) for alleged violations arising from h is incarceration at the United States Penitentiary in Florence, Colorado. The dis trict court dismissed these claims as frivolous under 28 U.S.C. § 1915A(b) and Mr. Treadwell seeks to appeal. We deny leave to proceed in forma pauperis and dism iss this appeal on the ground that it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). This dismissal counts as a “prior occasion” or “strike” for the purposes of the “three strikes” provision of the Prison Litigation Reform Act (PLRA), as set forth in 28 U.S.C. § 1915(g). We note that Mr. Treadwell has at least one other “prior occasion” or “strike” under § 1915(g) in a companio n appeal. Treadwell v. Holt , No. 01-1368 (10th Cir. Mar. 8, 2002). This court h as assessed partial payments on the appellate filing fee; with our denial of leave to proceed in forma pauperis Mr. Treadwell is responsible for the immediate paym ent of the unpaid balance due.- 3 -

Mr. Treadwell argues that prison officials erroneou sly based his classification in part on a nonviolent 1987 juvenil e robbery offense. He claims that consequently, he was placed in a higher securi ty facility than was warranted and that, were he to be correctly reclassified, pri son officials would transfer him to a facility with lesser security. This court construes pro se complaints liberally. Hunt v. Uphoff , 199 F.3d 1220, 1223 (10th Cir. 1999). We extend this libera l construction principle to pro se appellate filings as well. See Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998), cert. denied526 U.S. 1052 (1999). While this court has not ye t determined whether a dismissal pursuant to § 1915A on the ground that the complaint is legally frivolous is reviewed de novo or for an abuse of discretion, Plunk v. Givens , 234 F.3d 1128, 1130 (10th Cir. 2000), our result would be the same under either standard. Mr. Treadwell brings these claims pursuant to the P rivacy Act, though he apparently also alleges that they violate his const itutional rights. Mr. Treadwell additionally asserts a Freedom of Information Act c laim, which the district court properly dismissed because it did not involve the B OP, the only agency named as a defendant. Pursuant to 28 U.S.C. § 1915A(b), the district court is required to review complaints from prisoners seeking redress from offi cers or employees of a- 4 -

governmental entity and to dismiss the complaint, o r any portion thereof, that is legally frivolous. The district court determined that his claim was frivolous. We
agree. First, a successful claim against an administrative agency under the Privacy Act requires an allegation that the agency failed t o maintain accurate records, leading to a determination adverse to the plaintiff. 5 U.S.C. § 552a(g)(1)(C). Treadwell agrees that he was convicted of robbery i n 1987 as a juvenile and that the conviction accurately appears on his record. H e disagrees with the way the BOP uses the information in his record, not the acc uracy of the record itself. Therefore, even if the BOP improperly used this inf ormation, that do not amount to a violation of the Privacy Act and his claim was rightfully dismissed. Furthermore, insofar as these claims can be classif ied as constitutional claims, the allegedly mistaken classification and p lacement of Treadwell do not implicate a liberty interest created under the Cons titution because prisoners are not entitled to any particular degree of liberty. Templeman v. Gunter , 16 F.3d 367, 369 (10th Cir. 1994). Nor does Treadwell’s cl assification or placement impose any atypical or significant hardship upon hi m in relation to the ordinary incidents of prison life, Sandin v. Conner , 515 U.S. 472, 480 (1995), or threaten to lengthen his term of confinement, id . at 487. Rather, it the type of decision best left to the discretion of prison officials. M eachum v. Fano , 427 U.S. 215,- 5 -

228-29 (1976). The district court properly dismiss ed this claim as frivolous pursuant to 28 U.S.C. § 1915A(b). Mr. Treadwell sought leave from the district court to proceed in forma pauperis on appeal, but the district court denied h is request pursuant to 28 U.S.C. § 1915(a)(3). Because Mr. Treadwell’s appeal fails to present a “reasoned, nonfrivolous argument on the law and facts in suppo rt of the issues raised on appeal,” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir.1991), we DENY him leave to proceed on appeal in forma pauperis, o rder him to render immediate payment of the unpaid balance due on the filing fee , and DISMISS the appeal. This dismissal counts as a “prior occasion” or “str ike” for the purposes of the “three strikes” provision of the PLRA.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge