THOMAS v. GUNJA
FILED
United States Court of Appeals
Tenth Circuit
SEP 14 2004
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN ERIC THOMAS,
Plaintiff-Appellant,
v. No. 03-1129
JOSEPH E. GUNJA, Warden; (D.C. No. 02-Z-2169)
KATHLEEN HAWK SAWYER, (D. Colo.)
Director, F.B.O.P.; A.W. ROWLETT,
Unit Manager,
Defendants-Appellees.
ORDER AND JUDGMENT(1)
Before TACHA, Chief Judge, BALDOCK and HENRY, Circuit Judges.(2)
Plaintiff John Eric Thomas is an inmate at the United States Penitentiary (USP)
in Florence, Colorado.(1) He filed this civil rights action pro se against prison officials
seeking both monetary and injunctive relief. See Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). As best we can discern, Plaintiff's principal complaint
concerns his transfer from USP Terre Haute, Indiana to USP Florence in September
2002.(2) The record contains a disciplinary report from USP Terre Haute, finding that
Plaintiff assaulted another inmate in 2002." The Federal Bureau of Prisons transferred
Plaintiff to USP Florence that same year, where he is housed in a restrictive unit.
(1) This order and judgment is not binding precedent, except under the doctrines
oflaw of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
(2) After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). This case is therefore
submitted without oral argument.
(1) Plaintiff's incarceration apparently is the result of his possession of a firearm
inviolation of 18 U.S.C. 922(g). See United States v. Thomas, 1999 WL274518 (7th
Cir. 1999) (unpublished). The Seventh Circuit affirmed the district court's sentencing
decision to depart upward from Thomas' criminal history category based onhis prison
conduct record with the Indiana Department of Corrections. See id. at **1.
(2) In his opening brief, Plaintiff also asserts denial of good time credits, denial of
accessto the courts, racism, and deliberate indifference to his needs. Plaintiff, however,
offers only conclusory allegations to support these claims. The district courtordered
Plaintiff to file an amended complaint supplying the factual bases for these claims. See
Fed. R. Civ. P. 8. In response, Plaintiff filed a motion for the presiding judge torecuse
asimpartial. We have repeatedly opined that-
"[a]lthough a pro se litigant's pleadings are entitled to a liberal
construction, he must follow the rules of federal and appellate procedure.
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Moreover
... the parties and the court are under no obligation to craft legal theories
for the plaintiff, nor may they supply factual allegations to support a pro se
plaintiff's claim for relief. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
Abdelsamed v. United States, 31 Fed. Appx. 632, 633 (10th Cir. 2002) (unpublished).
Accordingly, we refuse to consider these claims.
According to Plaintiff, he attempted to file a grievance objecting to his transfer;
however Defendant Prison Officials have refused to process his grievance, thereby
depriving him of liberty. According to both Plaintiff's notice of appeal and opening
brief, the "foundation of the grievance was to inquire into why Plaintiff was transferred
to this gang and disciplinary U.S. Penitentiary, Florence, Colorado, being Plaintiff is
not and has never been a gang member and Plaintiff was not transferred to this U.S.
Penitentiary for disciplinary reasons." (emphasis added). The district court dismissed
Plaintiff's action pursuant to 28 U.S.C. 1915(e)(2)(B) as frivolous. We exercise
jurisdiction under 28 U.S.C. 1291, and affirm.
In Meachum v. Fano, 427 U.S. 215 (1976), the Supreme Court decided the
very issue Plaintiff raises on appeal: Whether Due Process "entitles a . . . prisoner to
a hearing when he is transferred to a prison the conditions of which are substantially
less favorable to the prisoner, absent a . . . law or practice conditioning such transfers
on proof of serious misconduct or the occurrence of other events." Id. at 216. The
Court answered no:
"[W]e cannot agree that any change in the conditions of confinement
having a substantial adverse impact on the prisoner involved is sufficient
to invoke the protections of the Due Process Clause. . . . The Constitution
does not . . . guarantee that the convicted prisoner will be placed in any
particular prison . . . . The conviction has sufficiently extinguished the
defendant's liberty interest to empower the [Government] to confine him
in any of its prisons.
Neither . . . does the Due Process Clause in and of itself protect a duly
convicted prisoner against transfer from one institution to another within
the . . . prison system. . . . That life in one prison is much more disagreeable
than in another does not in itself signify that a . . . liberty interest is
implicated when a prisoner is transferred to the institution with the
more severe rules.
Id. at 224-225.
In Sandin v. Conner, 515 U.S. 472 (1995), the Court "reexamine[d] the
circumstances under which . . . prison regulations afford an inmate a liberty interest
protected by the Due Process Clause." Id. at 474. The Court reaffirmed "the due process
principles . . . correctly established and applied in . . . Meachum." Id. at 483. In Sandin,
the Court held "Conner's discipline in segregated confinement did not present the type
of atypical, significant deprivation in which a State might conceivably create a liberty
interest." Id. at 486. In so holding, the Court explained that in the prison setting, liberty
interests protected by Due Process "will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, . . . nonetheless imposes atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life."
Id. at 484.
The Supreme Court's decisions in Sandin and Meachum sound the deathknell of
Plaintiff's appeal. Plaintiff possesses no liberty interest in residing in any particular
federal prison. The Federal Bureau of Prisons has the discretion to transfer inmates to
alternative facilities "`for whatever reason or for no reason at all.'" Id. at 479 (quoting
Meachum, 427 U.S. at 228). Furthermore, Plaintiff's transfer from USP Terre Haute
to USP Florence did not impose atypical and significant hardship on Plaintiff in relation
to the ordinary incidents of prison life. As such, Plaintiff has no right to a grievance
hearing objecting to his transfer:
Transfers between institutions . . . are made for a variety of reasons and
often involve no more than informed predictions as to what would best
serve institutional security or the safety and welfare of the inmate. Yet
under the approach urged here, any transfer, for whatever reason, would
require a hearing as long as it could be said that the transfer would place
the prisoner in substantially more burdensome conditions than he had
been experiencing. We are unwilling to go so far.
Meachum, 427 U.S. at 225.
Accordingly, the judgment of the district court is AFFIRMED. Until Plaintiff pays
in full the partial filing fee of $105.00 assessed by the Clerk of Court on May 29, 2003,
Plaintiff is prohibited from filing further lawsuits related to the claims asserted in this
action without explicit permission of the district court. See Abdelsamed v. United States,
31 Fed. Appx. 632, 633 (10th Cir. 2002) (unpublished).
SO ORDERED.
Entered for the Court
Bobby R. Baldock
Circuit Judge