Duarte-Vestar v. Hudson, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

EVELIO DUARTE-VESTAR,

Plaintiff-Appellant,

v.



RICK L. HUDSONand JOHN DOE,

an Officer,

Defendants-Appellees.

No. 99-6423

(D.C. No. 98-CV-1331-T)

(W.D. of Okla.)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before SEYMOUR, Chief Judge, EBEL

and BRISCOE, Circuit Judges.

Proceeding pro se, Evelio Duarte-Vestar appeals from the district court's

dismissal of his civil rights claims, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and

(ii) and Fed. R. Civ. P. 12(b)(6), against Rick Hudson, Warden, and John Doe, an

Officer, of the North Fork Correctional Facility in Sayre, Oklahoma. We

affirm.

Mr. Duarte-Vestar was convicted of a misdemeanor in Wisconsin. The

Wisconsin Department of Corrections, pursuant to a contract with the Corrections

Corporation of America, shipped Mr. Duarte-Vestar to the North Fork

Correctional Facility in Sayre, Oklahoma. The North Fork facility houses

medium security felons. Although Wisconsin authorizes the housing of inmates

convicted of misdemeanor offenses with those inmates convicted of felony

offenses, that practice is generally prohibited in Oklahoma. See 57 Okla. Stat.

Ann. § 563.2(D)(1) (Supp. 1998) ("A private prison contractor housing . . .

inmates of another state shall not accept: Any inmate who would be incarcerated

in the facility for a misdemeanor unless such incarceration in the facility is

consistent with American Correctional Association requirements relating to the

incarceration of inmates convicted of more serious offenses."); Affidavit of

Warden Hudson, at ¶ 3 ("According to Oklahoma Law 57 O.S. 563(D)(1) and

American Correctional Association . . . standards, private prisons may not house

any inmate who would be incarcerated in the facility for conviction of a

misdemeanor."). Shortly after Mr. Duarte-Vestar arrived at the North Fork

Correctional Facility, Warden Hudson contacted the Wisconsin Department of

Corrections to notify them that he could not house misdemeanor inmates with the

felony inmates at North Fork. See Aple. App. at 19-20. Wisconsin initiated

efforts to remedy the problem by removing the misdemeanor inmates from the

North Fork Correctional Facility. See id. at 20. In the interim, Warden

Hudson

arranged for Mr. Duarte-Vestar and other transferred misdemeanor inmates to be

held separately from the general population at the prison. See id. Mr.

Duarte-Vestar's property was seized and he was placed in administrative segregation

from September 4, 1998 to September 14, 1998. See id. at 17. He was then

transferred back to a Wisconsin facility.

Mr. Duarte-Vestar instituted an action in the district court pursuant to 42 U.S.C. 1983, alleging that his administrative confinement and the seizure of his

property violated his constitutional rights. Warden Hudson filed a motion to

dismiss together with the court-ordered Martinez report.
name="txt1a">(1) The Magistrate Judge

issued a Report and Recommendation, suggesting that Warden Hudson's motion

to dismiss be granted, and that the complaint be dismissed as to all defendants for

failure to state a § 1983 claim upon which relief can be granted pursuant to Fed.

R. Civ. P. 12(b)(6) and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

The district court adopted the Magistrate Judge's Report and Recommendation.

We may rely on a Martinez report in dismissing a claim as frivolous as

long as the report's factual findings are not controverted. See Hall v. Bellmon,

935 F.2d 1106, 1109 (10th Cir. 1991). Mr. Duarte-Vestar has not controverted

the facts set forth in the Martinez report, and has not challenged the asserted

reason for the actions taken by the prison, which was to protect Mr. Duarte-Vestar from the more

violent felony inmates.

Having considered Mr. Duarte-Vestar's allegations, the Martinez report,

and the record on appeal, we agree with the Magistrate Judge's Report and

Recommendation and the District Court order. Mr. Duarte-Vestar's placement in

administrative segregation was not an imposition of punishment. He was still

allowed access to all programs and privileges offered to the general population.

There was no constitutional deprivation. Therefore, we AFFIRM the dismissal of

the action pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(i)

and (ii). Mr. Duarte-Vestar must continue making payments on his filing fees

until they are paid in full.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.After examining appellant's brief and the

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) and 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument. This

Order and Judgment is not binding precedent, except under the doctrines of law

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.

1.See Martinez v. Aaron,

570 F.2d 317 (10th Cir. 1978).

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