* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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 

### NOV 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE MALLARD, Plaintiff-Appellant,

v. LARRY FIELDS, Defendant-Appellee. No. 98-7012 (D.C. No. 96-CV-415-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , 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. There fore, the case is ordered submitted without oral argument. George Mallard, an Oklahoma state prisoner appearin g pro se, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. We exercise jurisdiction-2-

pursuant to 28 U.S.C. § 1291 and affirm. Mallard has been in the custody of the Oklahoma Dep artment of Corrections (DOC) since May 28, 1970, when he beganserving a life sentence for murder. Between September 14, 1994, and December 1 8, 1995, he was transferred several times between DOC facilities. The transfers were the result of an order by the governor requiring that inmates serving life sentences for murder be assessed for security risks and ultimately house d in medium or maximum security level facilities. Mallard was housed in t he maximum security East Cell House (ECH) at Oklahoma State Penitentiary (OSP) fo r approximately five days in September 1994 and for approximately eighteen days in December 1995. Mallard filed this § 1983 action against DOC Direct or Larry Fields and unknown DOC employees on August 22, 1996. He alleg ed his transfers to ECH (1) were unconstitutional because they were execute d without a classification hearing; (2) violated the district court’s orders in Battle v. Anderson , Case No. 79-096-B, which allegedly closed ECH due to unconst itutional conditions of confinement; and (3) were in retaliation for the ac tions of two other inmates who committed crimes while apparently confined in lowersecurity level facilities. Mallard further alleged the initial transfer to ECH was unconstitutional because it deprived him of his opportunity to work for compens ation at Oklahoma State Industries. He alleged the conditions of confineme nt at ECH violated the Eighth-3-

Amendment because the facility was unfit for human habitation. He also alleged he was denied access to the OSP law library while h oused at ECH. At the direction of the district court, Fields prepared and filed a Martinez report. Fields filed a motion to dismiss and/or fo r summary judgment. The court allowed Mallard to respond and granted the motion, dismissing the action in its entirety. We review de novo the district court’s decision on a motion to dismiss or a motion for summary judgment. See Swoboda v. Dubach , 992 F.2d 286, 289 (10th Cir. 1993). Dismissal of a complaint is proper onl y where, after taking all wellpleaded factual allegations as true, “it appears be yond doubt that the plaintiff can prove no set of facts in support of his claim whichwould entitle him to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957). Summary judgment is appropriate if “there is no genuine issue as to any material fa ct and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). Because defendant’s Martinez report may not be used to resolve factual disputes, see Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir. 1991), we treat th e statement of facts presented in Mallard’s verified complaint as true f or purposes of reviewing defendant’s motion and construe those facts and inf erences reasonably made from them in the light most favorable to Mallard. See Jaxon v. Circle K Corp. , 773 F.2d 1138, 1139 n.1 (10th Cir. 1985). However, Mal lard’s failure to establish the-4-

existence of an element essential to his case on wh ich he bears the burden of proof at trial will result in a determination that no genuine dispute exists over material facts. Celotex Cop. v. Catrett , 477 U.S. 317, 322-23 (1986). After reviewing the record on appeal, we agree with the district court that Mallard has failed to establish a cognizable consti tutional claim. Mallard has clearly suffered no constitutional violation from t he changes in his security classification, his transfers to ECH, or the result ing loss of his prison job. Generally speaking, prison inmates have no legally protected interest in a particular security or job classification, or in th e location of their confinement.
See Sandin v. Conner , 515 U.S. 472, 486 (1995); Ingram v. Papalia , 804 F.2d 595, 596 (10th Cir. 1986). Nothing presented by Mallardpersuades us Oklahoma law or DOC regulations otherwise create valid interests in these items. Mallard has failed to offer any evidence in supportof his conclusory allegation that he was denied access to the OSP law library while housed at ECH. In contrast, the evidence submitted by Fields indic ates Mallard submitted no requests for law library services while housed at E CH. We agree with the district court that Mallard’s allegations of constitutional deprivations in this regard are “unsubstantial.” Although we disagree with the district court that M allard’s Eighth Amendment challenge to the conditions of confinemen t at ECH is precluded by-5-

the existence of an ongoing class action challenging those same conditions, see McNeil v. Guthrie , 945 F.2d 1163, 1166 n.4 (10th Cir. 1991), we neve rtheless conclude Mallard’s allegations in this regard are v ague, conclusory, and entirely insufficient to support his burden of surviving sum mary judgment. Considering his short stay at ECH, as well as the uncontroverte d evidence presented by Fields regarding conditions of confinement at ECH, there i s no basis for a reasonable factfinder to conclude Mallard was deprived of the “‘minimal civilized measure of life’s necessities.’” Farmer v. Brennan , 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981)). The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge