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UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
LIONEL JOHNSON-BEY,
Plaintiff-Appellant,
v.
M.E. RAY, Warden, USP Leavenworth, et al.,
Defendants-Appellees.
No. 01-3382
38 Fed. Appx. 507
NOTICE:
RULES OF THE TENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
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)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.
Plaintiff Lionel Johnson-Bey, a
federal prisoner appearing pro se, appeals from the district court's dismissal
of his civil rights action brought
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). We exercise
jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, reverse in part, and
remand for further proceedings.
The facts alleged in plaintiff's
complaint all occurred while plaintiff was housed at the United States
Penitentiary in Leavenworth, Kansas (USP-Leavenworth). In July 2000, plaintiff
was allegedly ordered to share a cell with convicted World Trade Center bomber
Mahmud Abouhalima. After refusing to comply with the order, plaintiff was
placed in a special housing [*509] unit (SHU), a false report was allegedly
filed against him charging him with possession of a knife found in Abouhalima's
cell, and false information was allegedly provided to Abouhalima indicating
that plaintiff had attempted to set him up for a disciplinary violation.
Plaintiff alleged that these actions were the product of racial and religious
discrimination on the part of several correctional officers employed at
USP-Leavenworth, all of whom were named as defendants in plaintiff's complaint.
Because the defendants' actions allegedly made it unsafe for plaintiff to
remain at USP-Leavenworth, plaintiff requested relief in the form of a transfer
to a federal facility in Nebraska or Iowa. Plaintiff also requested $1,500 per
day for the racial and religious discrimination, and $1.8 million for the
"mental, emotional duress" caused to him by the defendants' conduct.
Complaint at 6.
Subsequent to the filing of his
complaint, plaintiff was transferred from USP-Leavenworth to a federal
correctional facility in Lompoc, California. Plaintiff thereafter filed
supplemental pleadings alleging that he was in danger at Lompoc and continued
to suffer mental distress because at least one of Abouhalima's co-defendants
was housed there. Plaintiff requested a transfer from Lompoc to facilities in
Missouri, Illinois, or Minnesota.
The
district court dismissed plaintiff's complaint for failure to state a claim
upon which relief could be granted. In doing so, the district court concluded
that plaintiff's transfer from USP-Leavenworth to Lompoc rendered moot his
request for injunctive relief, and that, in any event, plaintiff had no
protected right to be housed in or transferred to any particular facility. The
district court further concluded that plaintiff's request for monetary damages
for mental or emotional distress was defeated by his failure to allege any
"prior showing of physical injury." 42 U.S.C. § 1997e(e). The
district court also concluded that plaintiff's allegations of racial and
religious discrimination were too vague and conclusory to establish a claim of
constitutional deprivation. Lastly, the district court concluded that
plaintiff's placement in restrictive confinement did not state a claim of
constitutional significance.
We agree with the district
court's dismissal of plaintiff's request for injunctive relief, i.e., his
request to be transferred to another facility. As the district court correctly
noted, an inmate such as plaintiff "has no justifiable expectation that he
will be incarcerated in any particular" facility. Olim v. Wakinekona, 461 U.S. 238, 245, 75 L.
Ed. 2d 813, 103 S. Ct. 1741 (1983); see
Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (noting
"there is no federal constitutional right to incarceration in any
particular prison"). Further,
while plaintiff has expressed concerns about his safety due to the presence of
certain inmates at Lompoc, he has not alleged that federal correctional
officials at Lompoc have failed to fulfill their obligation to take reasonable
measures to guarantee his safety. See
Farmer v. Brennan, 511 U.S. 825,
833, 847, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) (affirming that prison
officials have duty to protect prisoners from violence by other prisoners); Barney
v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (same).
We
further agree with the district court that plaintiff failed to state a claim
upon which relief could be granted arising out of his initial placement in SHU
at USP-Leavenworth. As noted, plaintiff's complaint alleged that he was placed
in SHU for failing to follow an order to share a cell with Abouhalima. We are
unable to discern any possible constitutional violation arising out of that
situation. In particular, there is no allegation that plaintiff was deprived of
any procedural due process rights prior to his placement in SHU.
[*510] Although it is a closer question, we also agree with the district
court's dismissal of plaintiff's claim that one or more officials at
USP-Leavenworth filed a false disciplinary report charging him with possession
of a knife. Inmates such as plaintiff are entitled to be free from arbitrary
actions by prison officials. Protection from such arbitrary actions generally
comes in the form of procedural due process rights, e.g., prior written notice
of a violation, the right to present witnesses and evidence, a written
statement of fact-finding, and a decision by an impartial body. See McPherson v. McBride, 188 F.3d 784, 787
(7th Cir. 1999). Here, there is no assertion by plaintiff, and we are unwilling
to assume, that he was deprived of such procedural due process rights following
the alleged filing of the false disciplinary report. Thus, he has no viable due
process claim. See id. Finally, we agree with the district court that plaintiff
failed to offer any substantiation for his conclusory assertion that the filing
of the report was racially or religiously motivated.
We
conclude the district court erred in dismissing plaintiff's remaining claim, i.e.,
that one of the officials at USP-Leavenworth falsely informed Abouhalima that
plaintiff had attempted to "set him up" for a disciplinary violation
(by apparently placing a knife in Abouhalima's cell). While we agree with the
district court that plaintiff failed to offer any substantiation for his
assertion that this act was racially or religiously motivated, we nevertheless
conclude that the act, if true, was sufficient to state a claim upon which
relief could be granted. In Benefield v. McDowall, 241 F.3d 1267, 1270-72 (10th
Cir. 2001), we held that an inmate had adequately alleged an Eighth Amendment
violation when he asserted that a correctional officer deliberately exposed him
to the risk of harm at the hands of other inmates by labeling him a "snitch."
The facts alleged by plaintiff in this case are sufficiently similar in our
view to warrant further proceedings. In particular, a liberal construction of
plaintiff's pleadings indicates that the officer's alleged statements to
Abouhalima were intended to, and in fact did, increase the risk of physical
danger to plaintiff. The fact that plaintiff suffered no physical injury
resulting from the officer's alleged action, though relevant to the issue of
damages, see 42 U.S.C. § 1997e(e), does not require dismissal of the claim.
See Searles v. Van Bebber, 251 F.3d
869, 876, 878 (10th Cir. 2001) (concluding that § 1997e(e) limits an inmate's
ability to recover for mental or emotional injuries, but does not bar recovery
of nominal or punitive damages).
AFFIRMED
IN PART, REVERSED IN PART, and REMANDED for further proceedings. Plaintiff is
reminded of his obligation to continue making partial payments until the entire
balance of the appellate filing fee is paid.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
* 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.