Mallard v. Fields, (10th Cir. 1998)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE MALLARD,

Plaintiff-Appellant,

v.

LARRY FIELDS,

Defendant-Appellee.



No. 98-7012

(D.C. No. 96-CV-415-S)

(E.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before SEYMOUR, Chief Judge,

BRORBY, and BRISCOE, Circuit

Judges.

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); 10th Cir. R. 34.1.9. Therefore, the case

is ordered submitted without oral argument.

George Mallard, an Oklahoma state prisoner appearing pro se, appeals the

district court's dismissal of his 42 U.S.C. § 1983 action. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

Mallard has been in the custody of the Oklahoma Department of

Corrections (DOC) since May 28, 1970, when he began serving a life sentence

for murder. Between September 14, 1994, and December 18, 1995, he was

transferred several times between DOC facilities. The transfers were the result of

an order by the governor requiring that inmates serving life sentences for murder

be assessed for security risks and ultimately housed in medium or maximum

security level facilities. Mallard was housed in the maximum security East Cell

House (ECH) at Oklahoma State Penitentiary (OSP) for approximately five days

in September 1994 and for approximately eighteen days in December 1995.

Mallard filed this § 1983 action against DOC Director Larry Fields and

unknown DOC employees on August 22, 1996. He alleged his transfers to ECH

(1) were unconstitutional because they were executed without a classification

hearing; (2) violated the district court's orders in Battle v. Anderson, Case No.

79-096-B, which allegedly closed ECH due to unconstitutional conditions of

confinement; and (3) were in retaliation for the actions of two other inmates who

committed crimes while apparently confined in lower security level facilities.

Mallard further alleged the initial transfer to ECH was unconstitutional because it

deprived him of his opportunity to work for compensation at Oklahoma State

Industries. He alleged the conditions of confinement at ECH violated the Eighth

Amendment because the facility was unfit for human habitation. He also alleged

he was denied access to the OSP law library while housed at ECH.

At the direction of the district court, Fields prepared and filed a Martinez

report. Fields filed a motion to dismiss and/or for summary judgment. The court

allowed Mallard to respond and granted the motion, dismissing the action in its

entirety.

We review de novo the district court's decision on a motion to dismiss or a

motion for summary judgment. See Swoboda v. Dubach, 992 F.2d 286, 289

(10th

Cir. 1993). Dismissal of a complaint is proper only where, after taking all well-pleaded factual

allegations as true, "it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief."

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Summary judgment is appropriate

if "there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Because

defendant's Martinez report may not be used to resolve factual disputes, see

Hall

v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), we treat the statement of facts

presented in Mallard's verified complaint as true for purposes of reviewing

defendant's motion and construe those facts and inferences reasonably made from

them in the light most favorable to Mallard. See Jaxon v. Circle K Corp., 773

F.2d 1138, 1139 n.1 (10th Cir. 1985). However, Mallard's failure to establish the

existence of an element essential to his case on which he bears the burden of

proof at trial will result in a determination that no genuine dispute exists over

material facts. Celotex Cop. v. Catrett, 477 U.S. 317, 322-23 (1986).

After reviewing the record on appeal, we agree with the district court that

Mallard has failed to establish a cognizable constitutional claim. Mallard has

clearly suffered no constitutional violation from the changes in his security

classification, his transfers to ECH, or the resulting loss of his prison job.

Generally speaking, prison inmates have no legally protected interest in a

particular security or job classification, or in the location of their confinement.

See Sandin v. Conner, 515 U.S. 472, 486 (1995); Ingram v. Papalia,

804 F.2d

595, 596 (10th Cir. 1986). Nothing presented by Mallard persuades us Oklahoma

law or DOC regulations otherwise create valid interests in these items.

Mallard has failed to offer any evidence in support of his conclusory

allegation that he was denied access to the OSP law library while housed at ECH.

In contrast, the evidence submitted by Fields indicates Mallard submitted no

requests for law library services while housed at ECH. We agree with the district

court that Mallard's allegations of constitutional deprivations in this regard are

"unsubstantial."

Although we disagree with the district court that Mallard's Eighth

Amendment challenge to the conditions of confinement at ECH is precluded by

the existence of an ongoing class action challenging those same conditions, see

McNeil v. Guthrie, 945 F.2d 1163, 1166 n.4 (10th Cir. 1991), we nevertheless

conclude Mallard's allegations in this regard are vague, conclusory, and entirely

insufficient to support his burden of surviving summary judgment. Considering

his short stay at ECH, as well as the uncontroverted evidence presented by Fields

regarding conditions of confinement at ECH, there is no basis for a reasonable

factfinder to conclude Mallard was deprived of the "'minimal civilized measure of

life's necessities.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes

v. Chapman, 452 U.S. 337, 347 (1981)).

The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES

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

*. 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.

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