Boykin v. Prison Warden, et al. CV-95-395-B 09/13/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth W. Boykin
v. Civil No. 95-395-B
Prison Warden, et al.
O R D E R
Kenneth Boykin, proceeding pro se and in forma pauperis,
files a complaint alleging violations of his First, Fifth, and
Fourteenth Amendment rights. Following a preliminary review of
his complaint pursuant to 28 U.S.C.A. § 1915(d) (West 1994), I
dismiss his claims as presently drafted and direct him to correct
the deficiencies in his pleading to maintain his suit.
I. DISCUSSION
Before ordering service of an in forma pauperis complaint on
the defendants, I review the sufficiency of the complaint and may
dismiss claims that are frivolous or malicious. 28 U.S.C.A. §
1915(d); Neitzke v. Williams, 490 U.S. 319, 325 (1989). Claims
that rely on an indisputably meritless legal theory, or allege
delusional or baseless facts will not pass review under §
1915(d). Id. at 327. If the plaintiff's complaint does not fall into the frivolous category, but would not survive Rule 12(b)(6)
scrutiny, I will allow the plaintiff an opportunity to amend to
clarify his claims and correct deficiencies in his pleadings.
See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991) . I turn to
Boykin's complaint first summarizing his allegations and then
evaluating its sufficiency.
Boykin alleges that he is a prisoner of the state of
Connecticut who has been serving his sentence at the New
Hampshire State Prison since 1988. He seems to allege that he
was transferred from Connecticut to New Hampshire because of
attacks on him by other inmates and that his transfer from
Connecticut to New Hampshire was against his will. At New
Hampshire State Prison, he alleges, he is again in danger, "in a
kill or be killed situation." He wants to be returned to
Connecticut to avoid problems here and because his family is in
Connecticut. He complains that the defendants have mishandled
his reguests for transfer and have failed to exercise their
discretion under the Interstate Corrections Compact to transfer
him back to Connecticut although another inmate, who faced less
danger, was transferred to Massachusetts. He further alleges
that the defendants' failure to transfer him violates his due
process rights.
2 Although Boykin does not characterize his complaint as a
civil rights action or make reference to a potentially applicable
statute such as 42 U.S.C.A. § 1983 (West 1994), he clearly
intends to bring a civil rights action. Boykin cites the First,
Fifth, and Fourteenth Amendments as well as "A.R.S. 41-1604 Subd.
B2(e)" as legal grounds for his claims against the defendants.
Because the complaint contains no factual allegations or
discussion to support any claim for violation of his First or
Fifth Amendment rights,1 those claims are dismissed as frivolous.
Neitzke, 490 U.S. at 327. I now address his claims under the
Fourteenth Amendment.
Boykin was transferred from Connecticut to New Hampshire
under the Interstate Corrections Compact, which provides that
Connecticut officials have broad discretion in ordering transfers
of inmates and retain authority to determine where its inmates
are imprisoned. See Conn. Gen. St. Ann. § 18-102 (West 1992);
see also Tyson v. Tilqhman, 764 F. Supp. 251, 253 (D. Conn.
1991). Despite his conclusory statements to the contrary, Boykin
1 Boykin seeks to avoid violence in New Hampshire by being returned to prison in Connecticut. Neither the First nor the Fifth Amendment addresses the conditions of his confinement nor reguires an inmate to be placed in a particular institution under any legal theory or factual scenario.
3 does not have a Fourteenth Amendment liberty interest in being
returned to Connecticut. See Sandin v. Conner, 115 S. C t . 2293,
2300 (an inmate's Fourteenth Amendment liberty interest in
freedom from restraint is limited to restraints which "impose[]
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life"); Olim v. Wakinekona, 461
U.S. 238, 247 (1983) (due process clause does not create a
protectable liberty interest in avoiding interstate prison
transfers because such transfers are "neither unreasonable nor
unusual"). Therefore, the Fourteenth Amendment does not reguire
any process or procedure in handling Boykin's reguests to be
transferred back to Connecticut.2
To state an egual protection claim under the Fourteenth
Amendment, a plaintiff "must first 'identify and relate specific
instances where persons situated similarly in all relevant
aspects were treated differently, instances which have the
If Boykin's reference to "A.R.S. 41-1604 Subd. B2 (e)" was intended to cite statutory or regulatory authority for a particular process or procedure related to his transfer, he must clearly identify the source of his cite. His citation does not appear to refer to either New Hampshire or Connecticut law relevant to interstate transfer of prisoners. See, e.g., N.H. Rev. St. Ann. § § 622-A:2 and 622-B (1986); Conn. Gen. Stat. Ann. § § 18-102 and 18-106 (West 1995).
4 capacity to demonstrate that [plaintiffs] were singled . . . out
for unlawful oppression.'" Rubinovitz v. Roqato, 60 F.3d 906,
910 (1st Cir. 1995) (quoting Dartmouth Review v. Dartmouth
College, 889 F.2d 13, 19 (1st Cir. 1989)) (internal quotations
omitted). Boykin has alleged no facts that would support an
equal protection claim despite his statement that another inmate
was transferred to an out-of-state prison. Thus, because
Boykin's legal theory based on a Fourteenth Amendment violation
is undisputedly meritless, that claim is dismissed. Neitzke, 490
U.S. at 327.
Although Boykin has not raised a claim of cruel and unusual
punishment, his concerns about his safety and welfare may be
cognizable under the Eighth Amendment. Prison officials have a
duty to protect inmates from violence inflicted by other inmates
only if the official "knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference." Farmer v. Brennan, 114 S. C t . 1970, 1979 (1994).
The prison official's requisite mental state may be shown both by
evidence of actual knowledge of a substantial risk and by
circumstantial evidence that the risk was obvious. Id. at
5 1981-82 .
The essence of Boykin's complaint is that he wants to be
returned to prison in Connecticut. The Eighth Amendment protects
inmates from cruel and unusual punishment but does not require
that an inmate be incarcerated in a prison in a particular state
to avoid inhumane conditions elsewhere.3 Thus, even if facts
exist to support an Eighth Amendment claim, the remedy will not
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Boykin v. Prison Warden, et al. CV-95-395-B 09/13/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth W. Boykin
v. Civil No. 95-395-B
Prison Warden, et al.
O R D E R
Kenneth Boykin, proceeding pro se and in forma pauperis,
files a complaint alleging violations of his First, Fifth, and
Fourteenth Amendment rights. Following a preliminary review of
his complaint pursuant to 28 U.S.C.A. § 1915(d) (West 1994), I
dismiss his claims as presently drafted and direct him to correct
the deficiencies in his pleading to maintain his suit.
I. DISCUSSION
Before ordering service of an in forma pauperis complaint on
the defendants, I review the sufficiency of the complaint and may
dismiss claims that are frivolous or malicious. 28 U.S.C.A. §
1915(d); Neitzke v. Williams, 490 U.S. 319, 325 (1989). Claims
that rely on an indisputably meritless legal theory, or allege
delusional or baseless facts will not pass review under §
1915(d). Id. at 327. If the plaintiff's complaint does not fall into the frivolous category, but would not survive Rule 12(b)(6)
scrutiny, I will allow the plaintiff an opportunity to amend to
clarify his claims and correct deficiencies in his pleadings.
See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991) . I turn to
Boykin's complaint first summarizing his allegations and then
evaluating its sufficiency.
Boykin alleges that he is a prisoner of the state of
Connecticut who has been serving his sentence at the New
Hampshire State Prison since 1988. He seems to allege that he
was transferred from Connecticut to New Hampshire because of
attacks on him by other inmates and that his transfer from
Connecticut to New Hampshire was against his will. At New
Hampshire State Prison, he alleges, he is again in danger, "in a
kill or be killed situation." He wants to be returned to
Connecticut to avoid problems here and because his family is in
Connecticut. He complains that the defendants have mishandled
his reguests for transfer and have failed to exercise their
discretion under the Interstate Corrections Compact to transfer
him back to Connecticut although another inmate, who faced less
danger, was transferred to Massachusetts. He further alleges
that the defendants' failure to transfer him violates his due
process rights.
2 Although Boykin does not characterize his complaint as a
civil rights action or make reference to a potentially applicable
statute such as 42 U.S.C.A. § 1983 (West 1994), he clearly
intends to bring a civil rights action. Boykin cites the First,
Fifth, and Fourteenth Amendments as well as "A.R.S. 41-1604 Subd.
B2(e)" as legal grounds for his claims against the defendants.
Because the complaint contains no factual allegations or
discussion to support any claim for violation of his First or
Fifth Amendment rights,1 those claims are dismissed as frivolous.
Neitzke, 490 U.S. at 327. I now address his claims under the
Fourteenth Amendment.
Boykin was transferred from Connecticut to New Hampshire
under the Interstate Corrections Compact, which provides that
Connecticut officials have broad discretion in ordering transfers
of inmates and retain authority to determine where its inmates
are imprisoned. See Conn. Gen. St. Ann. § 18-102 (West 1992);
see also Tyson v. Tilqhman, 764 F. Supp. 251, 253 (D. Conn.
1991). Despite his conclusory statements to the contrary, Boykin
1 Boykin seeks to avoid violence in New Hampshire by being returned to prison in Connecticut. Neither the First nor the Fifth Amendment addresses the conditions of his confinement nor reguires an inmate to be placed in a particular institution under any legal theory or factual scenario.
3 does not have a Fourteenth Amendment liberty interest in being
returned to Connecticut. See Sandin v. Conner, 115 S. C t . 2293,
2300 (an inmate's Fourteenth Amendment liberty interest in
freedom from restraint is limited to restraints which "impose[]
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life"); Olim v. Wakinekona, 461
U.S. 238, 247 (1983) (due process clause does not create a
protectable liberty interest in avoiding interstate prison
transfers because such transfers are "neither unreasonable nor
unusual"). Therefore, the Fourteenth Amendment does not reguire
any process or procedure in handling Boykin's reguests to be
transferred back to Connecticut.2
To state an egual protection claim under the Fourteenth
Amendment, a plaintiff "must first 'identify and relate specific
instances where persons situated similarly in all relevant
aspects were treated differently, instances which have the
If Boykin's reference to "A.R.S. 41-1604 Subd. B2 (e)" was intended to cite statutory or regulatory authority for a particular process or procedure related to his transfer, he must clearly identify the source of his cite. His citation does not appear to refer to either New Hampshire or Connecticut law relevant to interstate transfer of prisoners. See, e.g., N.H. Rev. St. Ann. § § 622-A:2 and 622-B (1986); Conn. Gen. Stat. Ann. § § 18-102 and 18-106 (West 1995).
4 capacity to demonstrate that [plaintiffs] were singled . . . out
for unlawful oppression.'" Rubinovitz v. Roqato, 60 F.3d 906,
910 (1st Cir. 1995) (quoting Dartmouth Review v. Dartmouth
College, 889 F.2d 13, 19 (1st Cir. 1989)) (internal quotations
omitted). Boykin has alleged no facts that would support an
equal protection claim despite his statement that another inmate
was transferred to an out-of-state prison. Thus, because
Boykin's legal theory based on a Fourteenth Amendment violation
is undisputedly meritless, that claim is dismissed. Neitzke, 490
U.S. at 327.
Although Boykin has not raised a claim of cruel and unusual
punishment, his concerns about his safety and welfare may be
cognizable under the Eighth Amendment. Prison officials have a
duty to protect inmates from violence inflicted by other inmates
only if the official "knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference." Farmer v. Brennan, 114 S. C t . 1970, 1979 (1994).
The prison official's requisite mental state may be shown both by
evidence of actual knowledge of a substantial risk and by
circumstantial evidence that the risk was obvious. Id. at
5 1981-82 .
The essence of Boykin's complaint is that he wants to be
returned to prison in Connecticut. The Eighth Amendment protects
inmates from cruel and unusual punishment but does not require
that an inmate be incarcerated in a prison in a particular state
to avoid inhumane conditions elsewhere.3 Thus, even if facts
exist to support an Eighth Amendment claim, the remedy will not
require the defendants to transfer Boykin to a prison in
Connecticut.
If Boykin nevertheless wishes to pursue Eighth Amendment
claims, he may amend his complaint to state a cause of action
under 42 U.S.C.A. § 1983 alleging recognized constitutional
violations. See Forte, 935 F.2d at 3. If he fails to file an
amended complaint by October 1, 1995, or if his amendment does
not correct the deficiencies explained in this order, his
complaint will be dismissed. See Purvis v. Ponte, 929 F.2d 822,
826 (1st Cir. 1991).
3 While an inmate may have an Eighth Amendment right to avoid a particular prison under certain circumstances, see Fitzharris v. Wolff, 702 F.2d 836, 839 (9th Cir. 1983), he does not have the right to demand incarceration or treatment in a particular prison, see, e.g., Jackson v. Fair, 846 F.2d 811, 817- 18 (1st Cir. 1988).
6 II. CONCLUSION
For the foregoing reasons, Boykin's claims under the First,
Fifth, and Fourteenth Amendment are dismissed (document 3), but
he may amend his complaint to state a civil rights action for
violation of his Eighth Amendment rights by filing an amended
complaint on or before October 1, 1995.
SO ORDERED.
Paul Barbadoro United States District Judge
September 13, 1995
cc: Kenneth Boykin, pro se