1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-30744

ROGER D. YATES; TRAVIS CARTER; GEORGE McGUFFEY,

Plaintiffs-Appellants,

VERSUS

RICHARD STALDER, Secretary,

Department of Public Safety and Corrections,

Defendant-Appellee.

Appeal from the United States District Court

For the Middle District of Louisiana

June 30, 2000

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:

Roger D. Yates, Louis iana state prisoner #87050, Travis

Carter, Louisiana state prisoner # 9 7219, and George McGuffey,

Louisiana state prisoner # 87708, appeal the dismissal of their

civil rights complaint filed against Richard Stalder, Secretary,

Louisiana Department of Public Safety and Corrections. We affirm

in part and reverse in part and remand for further proceedings.1 Plaintiffs allege that Stalder, currently the Secretary of the

Louisiana Department of Public Safety and Corrections, has held

that position “for approximately eight(8) years.” In that role, he

is responsible for implementing Louisiana policy concerning the

assignment of inmates to various facili ties, administering the

department, and supervising the department’s institutions,

facilities and services.

2 FACTS AND PROCEDURAL HISTORY

Plaintiffs, three male prisoners incarcerated in Louisiana

state prison, filed a civil rights complaint pursuant to 42 U.S.C.

§ 1983 (1994) alleging that they were being discriminated against

based upon their gender because living conditions provided by

defendant for male inma tes were significantly harsher than those

provided for female inmates. Specifically, Plaintiffs allege that,

unlike male inmates con fined at the state penitentiary, female

inmates confined at the Louisiana Correctional Institute for Women

(“LCIW”) do not have to labor in agricultural fields, may earn

assignment to private or semi-private rooms through participation

in a merit program and are confined in air -conditioned units.

Plaintiffs further allege that women inmates at LCIW are provided

with a standard of living above the state poverty level in

violation of Louisiana law, while male inmates are limited to the

state poverty level standard. See L A .R EV .S TAT

. 15:738 (West Supp.

1999). Plaintiffs allege that the disparate living conditions and

work requirements violate their ri ghts under the Fourteenth

Amendment.

Defendant Secretary Stalder 1 moved to dismiss the complaint on2 We note that qualified immunity is not a defense to Plaintiffs’

claims for declaratory and injunctive relief and to the extent that

the district court based its dismissal of those claims on its

qualified immunity analysis, it may have erred. However, because

we ho ld that the district court prematurely determined Stadler’s

entitlement to qualified immunity on Plaintiffs’ Equal Protection

Clause claims, it is unnecessary for us to address this issue.

3 qualified immunity grounds, claiming that his conduct did not

violate any of Plaintiffs’ clearly establ ished constitutional or

statutory rights. The district court granted the motion. Adopting

the report and recommendation of the magistrate, the district court

held that the Due Process Clause affords Plaintiffs no relief

because Plaintiffs have no justifiable expectation that they will

be incarcerated in any particular prison within the state c iting

Olim v. Wakinekona , 461 U.S. 238 (1983). The district court went

on to reject Plaintiffs’ Equal Protection Clause claim because

Plaint iffs are not similarly situated with female prisoners

confined at LCIW, based on the fact that the prisons “are

geographically and structurally dissimilar.” Concluding that the

P laintiffs failed to assert a violation of a clearly establis hed

right, the district court held that Stalder was entitled to

qualified immunity. 2

DISCUSSION

We review de novo a district c ourt’s ruling on a motion to

dismiss, applying the same standard as the district court. S ee

General Star Indemnity Co. v. Vesta Fire Ins. Corp

., 173 F.3d 946,

949 (5th Cir. 1999).4

A. Due Process

The Due Process Clause does not, by itself, endow a prisoner

with a protected liberty interest in the location of his

confinement. S ee Meachum v. Fano

, 427 U.S. 215, 225 (1976).

Further, a prisoner has no liberty interest in being housed in any

particular facility. S ee Olim v. Wakinekona

, 461 U.S. 238, 244–45

(1983); Tighe v. Wall, 1 00 F.3d 41, 42 (5th Cir. 1996). Because

Plaintiffs have failed to allege the deprivation of a

constitutionally cognizable liberty interest, the district court

did not err by granting Stalder qualified immunity on this claim.

B. Equal Protection

The first step in qualified immunity analysis is to determine

whether the plaintiff has alleged a “violation of a clearly

established constitutional right.” H are v. City of Corinth, Miss.

,

135 F.3d 320, 325-26 (5th Cir. 1998). This is a “purely legal

question” to be determined b y the Court. S iegert v. Gilley

, 500

U.S. 226, 232 (1991). It is clearly established that a state

violates the equal protection clause when it treats one set of

persons differently from others who are similarly situated. S ee

Wheeler v. Miller , 168 F.3d 241, 252 (5th Cir. 1999).

Plaintiffs allege that male inmates are discriminated against

on the basis of their gender in Louisiana, thereby denying them

equal protection under the law. To state an equal protection

claim, the Plaintiffs must allege, inter alia

, that similarly5

situated individuals have been treated differently. See Muhammad

v. Lynaugh

, 966 F.2d 901, 903 (5th Cir. 1992). The inquiry focuses

on whether the plaintiffs are similarly situated to another group

for purposes of the challenged government action. See Klinger v.

Dep’t of Corrections , 31 F.3d 727 (8th Cir. 1994).

Defendant Sta lder relies on the Eighth Circuit’s finding in

Klinger t hat male inmates in Nebraska’s maximum security men’s

prison are not similarly situated to female inmates in Nebraska’s

sole women’s prison. S ee 31 F.3d at 731. We agree that K linger

affords analysis that is useful and persuasive in reso lving the

questio n presented in this appeal, but conclude that it requires

reversal of the district court’s dismissal and remand for further

development of the facts. In July 1988, four Nebraska inmates

filed a pro se complaint in federal district court alleging that

the D epartment of Corrections was treating male inmates more

favorably than female inmates in terms of its programs and

services. S ee id. at 729. The district court appointed counsel to

r epresent the pro se inmates, who subsequently amended t h e

complaint three times. See id. The court required plaintiffs to

identify spec ific prison units on which their comparisons of

progra ms and services relied. S ee id. The parties took twentynine depositions involving both lay and expert witn esses and

focused their comparisons on twelve separate programs for inmates.

See id. They also developed per capita spending figures and6

related funding issues. After three years of pretrial proceedings

and discovery, the district court held a four week t rial on the

issue of liability. S ee id. at 730. Based on this extensive

factual developmen t, the Eighth Circuit determined that the two

g roups of inmates were not similarly situated. S ee id. at 731.

The record developed in the p resent case is, as illuminated by a

comparison to Klinger , wholly inadequate to allow us to determine

whether Plaintiffs are similarly situated to the female inmates in

LCIW. Klinger ’s holding is based on a fact intensive examination

of, inter alia, the number of inmates housed in each facility,

their average length of stay, their security leve ls, and the

statistical incidence of violence and victimhood. The district

court’s opinion in this case mentions only that the male and female

units are geographically and structurally different. There is no

clear connection b e tween that observation and the Plaintiffs’

complaints and nothing in the record that supports the conclusion.

We do not imply that the Constitution requires all prisons to

have similar programs or to allocate resources similarly. Perhaps

male prisoners on Plaintiffs’ unit vandalize the building s more

often than LCIW inmates, making it economically less feasib le to

provide air conditioning because the necessary funds are consumed

in building repairs. Perhaps LCIW does not have farmland and for

that reason LCIW inmates cannot be assigned to do agricultural

field w ork. Nonetheless, our speculations concerning possible7

disparities among male and female populations cannot be substituted

for adequate evidence and findings of fact in the district court.

We are fully cognizant of the high degree of deference courts

must afford to prison authorities in the inordinately difficult

task of running prisons. S ee Turner v. Safley

, 482 U.S. 78, 85

(1987). If legitimate penalogical goals can rationally be deemed

to su pport the decision to treat male and female prisoners

differently, then they are not similarly situated for Equal

Protection purposes. But that is not a conclusion that we can draw

from the present record.

C. No Merit to Remaining Claims

Plaintiffs complain that the district court failed to rule on

certain motions that do not appear in the record, that the district

court was biased because it denied other motions and that the

district court failed to consider their objections to the

magistrate’s report and recommendation. We find no merit in these

contentions.

CONCLUSION

We affirm the dismissal of Plaintiffs’ due process claims,

reverse the dismissal of Plaintiffs’ equal prot ection claims and

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.