Fleming v. ME Dept. of Cor.
Opinion
USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1351
DAVID FLEMING,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants, Appellees.
____________________
No. 96-1352
DAVID GORDON FLEMING,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
____________________
David Fleming on Memorandum in Support of Certificate of Probable _____________
Cause and on brief pro se.
____________________
August 5, 1996
____________________
Per Curiam. David Gordon Fleming is a Maine state __________
prisoner incarcerated at the Maine Correctional Institution
in Warren (MCI-Warren). On March 1, 1996, Fleming was
transferred within MCI-Warren from Housing Unit C to Housing
Unit B. He was later informed that, "You became loud and
started hollering trying to incite all the inmates in C.
Wing, your action[s] were reviewed by the Program Review
Committee, and they recommended that you be returned to B.
Wing so that you would not disrupt the unit." Shortly after
the transfer, Fleming filed both a civil rights complaint
pursuant to 42 U.S.C. 1983, Fleming v. Department of _______ ______________
Corrections, et al., Civil No. 96-70-B, and a "habeas _____________________
petition," Fleming v. Department of Corrections, et al., _______ ___________________________________
Civil No. 96-77-B. A magistrate judge recommended that both
filings be dismissed as frivolous within the meaning of 28
U.S.C. 1915(d). The district judge adopted the
magistrate's recommendations. Fleming now appeals from the
dismissal of his complaint in civil action No. 96-70-B. He
also seeks a certificate of probable cause permitting him to
appeal the dismissal of his "habeas petition" in civil action
No. 96-77-B.1 1
____________________
1After Fleming filed his petition for a certificate of 1
probable cause in this court, the President signed into law
the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996).
Although Fleming has not raised the issue, we note that we
need not decide in this case whether any of the amendments in
the Act apply since it would not alter our disposition.
-2-
I.
For the following reasons, we affirm the dismissal of
Fleming's complaint in civil action No. 96-70-B.
Relying on the Supreme Court's decision in Sandin v. ______
Conner, 115 S. Ct. 2293 (1995), the district court ruled that ______
Fleming had no liberty interest in being free from transfer
to the "B-side" of MCI-Warren which would trigger due process
requirements. Fleming makes no meaningful argument that this
ruling was in error. Instead, he criticizes the holding of
Sandin and suggests that, if it is the "new law of the land," ______
he has little incentive to abide by prison rules. We are
bound by Supreme Court decisions, and we see no basis for
setting aside the district court's ruling that the due
process claim is frivolous.
Assuming without deciding that the issue has been
preserved on appeal, we would affirm the dismissal of
Fleming's equal protection claim as frivolous. Fleming does
not allege that he is a member of a protected class, and
there is no suggestion that the transfer to Housing Unit B
was the result of invidious discrimination. See, e.g., Wolff ___ ____ _____
v. McDonnell, 418 U.S. 539, 556 (1974) (observing that _________
prisoners are protected under the Equal Protection clause
against invidious discrimination). Mere inconsistency in
prison management does not support a constitutional claim.
See Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982). ___ ______ ______
-3-
Finally, the notion that prison officials "falsely"
charged Fleming with attempting to incite other inmates in
retaliation for his having filed a lawsuit in Maine state
court is sufficiently implausible, on the facts of this case,
to warrant the dismissal of Fleming's retaliatory transfer
claim as frivolous. See Neitzke v. Williams, 490 U.S. 319, ___ _______ ________
327 (1989) (observing that 1915(d) accords judges the power
to "pierce the veil" of the complaint's factual allegations).
Fleming admits to the underlying conduct found to be
objectionable, though not to its characterization by prison
officials.
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Related
Wolff v. McDonnell
418 U.S. 539 (Supreme Court, 1974)
Neitzke v. Williams
490 U.S. 319 (Supreme Court, 1989)
Sandin v. Conner
515 U.S. 472 (Supreme Court, 1995)
Dominick Cacoperdo v. Peter Demosthenes the Attorney General of the State of Nevada
37 F.3d 504 (Ninth Circuit, 1994)
Shango v. Jurich
681 F.2d 1091 (Seventh Circuit, 1982)