Biliski v. Harborth

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 1995
• Docket: 94-50072
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 94-50072 ____________________

KENNETH C. BILISKI,

Plaintiff-Appellant,

v.

MELVIN HARBORTH, Sheriff, Guadalupe County and JAMES A. COLLINS, Director TDC.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA 93 CA 748) _________________________________________________________________ May 9, 1995

Before KING and JONES, Circuit Judges, and LAKE*, District Judge.

PER CURIAM:**

Kenneth Bilski1 appeals the dismissal of his complaint against

* District Judge of the Southern District of Texas, sitting by designation. ** Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. 1 The district court docket sheet, the cover sheet for the appellate brief and the orders entered by the court spell the appellant's name as Biliski. However, on all of the documents signed by the appellant, his name is spelled Bilski, and we have Melvin Harborth, the Sheriff of Guadalupe County, and James A.

Collins, Director of the Texas Department of Criminal Justice

(TDCJ), under 42 U.S.C. § 1983, alleging that he has been

improperly housed at the Guadalupe County jail instead of within

the TDCJ. The Sheriff filed a motion to dismiss the complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting

that no relief could be granted as a matter of law because Bilski

is not entitled to a transfer and because the Sheriff is entitled

to immunity. Collins moved for dismissal of the complaint under

both Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. §

1915(d). A magistrate judge entered a memorandum and

recommendation that the complaint be dismissed as frivolous under

§ 1915(d). The district court accepted the recommendation of the

magistrate judge and dismissed without prejudice Bilski's complaint

as frivolous under § 1915(d). The district court also denied

Bilski's motion to proceed in forma pauperis on appeal. Bilski

appealed the district court's denial of IFP, and this court ruled

that Bilski satisfied the economic criteria and had demonstrated

that he may present a non-frivolous issue on appeal.

A complaint is frivolous if it lacks an arguable basis in law

or in fact. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (citing

Denton v. Hernandez, 112 S. Ct. 1728, 1733-34 (1992)). This court

reviews a § 1915(d) dismissal under the abuse of discretion

standard. Denton, 112 S. Ct. at 1734.

Insofar as Bilski sought injunctive relief compelling his

transfer from the Guadalupe County Jail to the TDCJ, his claim has

elected to use that spelling in the body of this opinion. been mooted by his subsequent transfer to the TDCJ. Insofar as he

seeks damages for the fact that his confinement in the Guadalupe

County Jail was more disagreeable than it would have been had he

been transferred immediately after his conviction to the TDCJ, his

claim is frivolous. In order to obtain relief under § 1983, a

plaintiff must prove that he was deprived of a Constitutional right

or federal statutory right and that the persons depriving him of

that right acted under color of law. Hernandez v. Maxwell, 905

F.2d 94, 95 (5th Cir. 1990). "[I]n the absence of an appropriate

state regulation a prisoner has no liberty interest in residence in

one prison or another." Jackson v. Cain, 864 F.2d 1235, 1250 (5th

Cir. 1989). "That life in one prison is much more disagreeable

than in another does not in itself signify that a Fourteenth

Amendment liberty interest is implicated when a prisoner is

transferred to the institution with the more severe rules." Id.

We have examined the applicable state law and his sentence and

commitment order, and we are not persuaded that Bilski has

demonstrated a liberty interest created by state law proscribing

his temporary confinement in the Guadalupe County Jail. The

district court did not abuse its discretion by dismissing this

claim as frivolous.

Bilski also asserted, at least arguably, a claim under the

Equal Protection Clause to an immediate transfer to the TDCJ and,

relatedly, for damages. In order to establish such a claim, Bilski

must show, inter alia, discrimination among persons similarly

situated. Bilski does not complain that he was treated any

differently than other transfer ready prisoners in the Guadalupe County Jail. Instead, he focuses on the difference between the

treatment of transfer ready prisoners in the Guadalupe County Jail

and the treatment of inmates in the TDCJ. We agree with the Court

of Appeals for the Fourth Circuit that the Equal Protection Clause

is not implicated simply because county authorities treat their

transfer ready prisoners differently than the TDCJ treats its

inmates. See Strickler v. Waters, 989 F.2d 1375, 1389 (4th Cir.),

cert. denied, 114 S. Ct. 393 (1993) ("[A]bsent a right to have been

housed in a state facility during the time he was confined at [a

local jail] . . . [Plaintiff] was not similarly situated for equal

protection purposes with state prisoners in state facilities . . .

."); Kersh v. Bounds, 501 F.2d 585, 588 (4th Cir. 1974) ("[S]ince

the county prisoners are treated alike and the Department prisoners

are treated alike, . . . there is no equal protection violation."),

cert. denied, 420 U.S. 925 (1975).

Bilski's argument that he has been denied the ability to earn

good time credits was not set forth in his complaint. In any

event, constituting (as it does) a challenge to the length of his

confinement, it would not be cognizable under § 1983. Finally,

Bilski's claim that jail officials interfered with his right of

access to the courts or his First Amendment rights by destroying or

denying his mail and his claims regarding medical and dental care

were also not included in his complaint. In any event, they fail

either because they were conclusory (the claims regarding medical

and dental care) or because Bilski did not assert how he had been

prejudiced (his claims regarding denial of access to the courts and

his First Amendment rights). The judgment of the District Court is AFFIRMED.