USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1351
DAVID FLEMING,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants, Appellees.
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No. 96-1352
DAVID GORDON FLEMING,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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David Fleming on Memorandum in Support of Certificate of Probable
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Cause and on brief pro se.
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August 5, 1996
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Per Curiam. David Gordon Fleming is a Maine state
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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
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Corrections, et al., Civil No. 96-70-B, and a "habeas
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petition," Fleming v. Department of Corrections, et al.,
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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
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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.
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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.
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Conner, 115 S. Ct. 2293 (1995), the district court ruled that
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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,"
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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
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v. McDonnell, 418 U.S. 539, 556 (1974) (observing that
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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).
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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,
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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. The particular officials who reported Fleming
were not defendants in the Maine lawsuit. And, although the
Maine lawsuit was pending at the time of Fleming's transfer,
it was shortly thereafter dismissed as totally frivolous.
Fleming's remaining arguments do not appear with
sufficient clarity in his complaint or are waived on appeal.
Under the circumstances, and for the reasons stated above, we
find no error in the dismissal of the complaint.
II.
We also deny Fleming's request for a certificate of
probable cause in civil action No. 96-77-B, and we summarily
dismiss the appeal. See Loc. R. 27.1.
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To the extent that Fleming's "habeas petition" is better
construed as a 1983 complaint, leave to appeal is not
necessary. However, we have already rejected as frivolous
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Fleming's claim that the transfer to "B-side" violated his
right to due process. We are also persuaded that in civil
action No. 96-77-B, Fleming abandoned any 1983 claims in
his objection to the magistrate's report and subsequent
filings.
Fleming, however, would have us construe his filing in
civil action No. 96-77-B as a habeas petition. He argues
that inmates at Maine State Prison are permitted to earn up
to three work-related good time credits in any month, and
that inmates at MCI-Warren, himself included, have been
unlawfully limited to only one or two credits per month. We
do not think this claim was raised with sufficient clarity in
Fleming's "petition," which focused on the facts surrounding
his transfer from one housing unit within MCI-Warren to
another. Accordingly, we deny the request for a certificate
of probable cause. See Cacoperdo v. Demosthene, 37 F.3d 504,
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507 (9th Cir. 1994) (grounds not raised in habeas petition
are not cognizable on appeal), cert. denied, 115 S. Ct. 1378
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(1995).
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