UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS LEE MCLAMB,
Plaintiff-Appellant,

v.

WILLIAM DUGGER, Captain; P. I.
                                                                    No. 94-7463
TARRANGI, Warden; MAJOR TURNER;
E. B. WRIGHT, Warden; D. R.
LAWSON, Warden; J. A. SMITH,
Administrator,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-94-1155-2)

Argued: December 6, 1995

Decided: February 28, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Elizabeth R. Baker, Student Counsel, Appellate Litigation
Clinical Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Martha Murphey Parrish, Special
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellees. ON BRIEF: Steven H.
Goldblatt, Ellen R. Finn, Supervising Attorney, Appellate Litigation
Clinical Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. James S. Gilmore, III, Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Thomas McLamb appeals the district court's dismissal of his com-
plaint alleging a violation of his constitutional due process rights as
enforced by 42 U.S.C. § 1983. We affirm based on the standard set
forth by the Supreme Court in Sandin v. Conner , ___ U.S. ___, 

 (1995), for due process claims brought by prisoners.

I.

While McLamb was a prisoner at the Greensville Correctional
Center ("the Center"), he was charged with committing assault upon
a staff member. On March 26, 1994, pending his hearing, the Center
placed McLamb on pre-hearing detention status. Twenty-six days
later, on April 21, 1994, the Center changed McLamb's status from
pre-hearing detention to general detention status. The Department of
Corrections ("DOC") regulations provide, however, that a prisoner
shall spend no more than 15 days in pre-hearing detention. See, e.g.,
DOC Division Operating Procedure 822-7.6 ¶ 3 (April 16, 1992);
Division Operating Procedure 861-7.8 ¶ 7 (April 1, 1992); and Divi-
sion Operating Procedure 822.7.1 ¶ 3 (April 16, 1992).

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McLamb received an Institutional Classification Committee
("ICC") hearing on April 26, 1994. The ICC determined that contin-
ued segregation on general detention status was appropriate because
of McLamb's history of disruptive and assaultive behavior toward
staff. McLamb remained on general detention status until August 30,
1994.1

Acting pro se, McLamb filed a lawsuit in federal district court
alleging a violation of his constitutional rights as enforced by 42
U.S.C. § 1983. He alleged that he was deprived of a protected liberty
interest in violation of his due process rights. Although his complaint
is not precise, his allegation was based on two basic facts: (1) that the
Center kept him in pre-hearing detention beyond the 15-day period
allotted for such detention in the Virginia DOC's regulations and (2)
that the Center kept him segregated from the general population on
general detention status until August 30, 1994. McLamb also filed a
petition of poverty, seeking leave to proceed in forma pauperis under
28 U.S.C. § 1915.

The district judge granted McLamb's petition to proceed in forma
pauperis, but dismissed his complaint as legally frivolous under 28
U.S.C. § 1915(d). The district court based its decision on pre-Sandin
case law which allowed the court to find a liberty interest in cases
where state regulations placed a substantive limit on official discre-
tion. Finding no liberty interest in the DOC regulations addressing
segregation, the district court reasoned that the claim should be dis-
missed. The district court, however, failed to cite specifically or dis-
cuss the regulations regarding the limits on pre-hearing detention.
McLamb appealed contending that he had a liberty interest in spend-
ing no more than 15 days in pre-hearing detention. 2
_________________________________________________________________

1 The hearing on the assault charge was repeatedly continued until the
charge was dismissed without a hearing on May 16, 1994.

2 It is a well-settled principle of law that McLamb had no liberty inter-
est in the days he spent on general detention status. Mitchell v. Murray,

, 293 (E.D. Va. 1994), appeal denied, 

 (4th
Cir. 1995) (table).

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McLamb also filed a motion to defer briefing pending the United
States Supreme Court's decision in Sandin v. Conner, which raised
issues relevant to his due process claim. We granted that motion.

II.

Section 1915(d) allows the dismissal of an in forma pauperis law-
suit if the court is "satisfied that the action is frivolous." 28 U.S.C.
§ 1915(d). A case is frivolous if the plaintiff would not be entitled to
relief under any arguable construction of the law or facts. Neitzke v.
Williams, 

, 325 (1989). We review the district court's
dismissal under 28 U.S.C. § 1915(d) for abuse of discretion. Denton
v. Hernandez, 

, 33 (1992).

In order to make a due process claim, a prisoner must first allege
and prove a liberty interest protected by the Constitution or the laws
of the states. Prior to the Supreme Court's decision in Sandin, a state
regulation which "plac[ed] substantive limitations on official discre-
tion" was sufficient to create a liberty interest protected by due pro-
cess. Olim v. Wakinekona, 

, 249 (1983). As a result, a
court's inquiry when examining prisoners' due process claims for
segregated confinement, such as McLamb's claim, often focused
exclusively on the language of a state's regulation. Sandin, ___ U.S.
at ___, 115 S.Ct. at 2299; Kentucky Dep't of Corrections v.
Thompson, 

, 461 (1989).

In Sandin, the Court criticized the excessive attention paid to the
language of regulations, finding that it produced undesirable effects:
(1) by creating "disincentives for States to codify prison management
procedures in the interest of uniform treatment" and (2) by leading "to
the involvement of federal courts in the day-to-day management of
prisons, often squandering judicial resources with little offsetting ben-
efit to anyone." Sandin, ___ U.S. at ___, 115 S.Ct. at 2299-2300.
Thus, the Court announced a new standard for finding state-created
liberty interests protected by the Due Process Clause. Under Sandin,
a plaintiff must prove "atypical and significant hardship . . . in relation
to the ordinary incidents of prison life" in order to demonstrate a due
process violation. Id. at ___, 115 S. Ct. at 2300. Sandin applies retro-
actively to McLamb's appeal. Reynoldsville Casket Co. v. Hyde, ___

                     

___, ___, 

, 1748 (1995); Harper v. Virginia
Dep't of Taxation, ___ U.S. ___, #6D 6D6D#, 

, 2517 (1993).3

McLamb argues that we should remand, in order to give him a
chance to prove a violation of his due process rights under the new
Sandin standard. Where further record development is necessary to
make a Sandin determination, a remand is proper. Gotcher v. Wood,

, 1101 (9th Cir. 1995) (remanding because record was
not sufficient to determine if there was a liberty interest under Sandin
standard). On the other hand, if the record is sufficiently developed
for this court to apply the Sandin standard, then remand is not appro-
priate. Cf., White v. Gregory, 

 (4th Cir. 1993) (upholding
dismissal of prisoner's Eighth Amendment claim where no further
facts necessary to affirm under a new standard), cert. denied, 114 S.
Ct. 931 (1994).

Thus, we turn to the question of whether further record develop-
ment is necessary. In Sandin, the Court found that disciplinary segre-
gation did not constitute atypical and significant hardship where:

          (1) the disciplinary segregation mirrored conditions of
          other forms of completely discretionary confinement;

          (2) based on a comparison between inmates inside and
          outside disciplinary segregation, the state's action in placing
          the defendant in segregation did not significantly disrupt the
          defendant's environment; and

        (3) the state action did not affect the duration of the defen-
        dant's sentence.
_________________________________________________________________

3 When the Supreme Court hands down a decision in a civil case and
applies a new legal rule to the parties in the case before it, then the new
rule applies retroactively to all pending cases. Reynoldsville Casket, 115
S.Ct. at 1748; Harper, 113 S.Ct. at 2517 (1993). The Supreme Court
applied the rule announced in Sandin to the parties before it, thus we
must apply Sandin here because McLamb's appeal was pending at the
time the Court handed down its decision.

                    5
___ U.S. at ___, 115 S.Ct. at 2301-02.

In order to establish that the 11 extra days he spent in pre-hearing
detention denied him a liberty interest, McLamb would have to allege
and prove that one of the three Sandin factors applied to his detention.
McLamb concedes that the record demonstrates that his segregation
did not significantly disrupt his environment, nor was his environment
significantly different from the conditions in custodial management,
which is entirely discretionary. McLamb argues that record develop-
ment is needed as to the third factor--whether the excess time he
spent on pre-hearing detention affected the ultimate duration of his
sentence. At oral argument upon questioning by the court, however,
McLamb could point to nothing he could develop about the extra 11
days he spent on pre-hearing detention, if allowed discovery, which
could affect the ultimate duration of his sentence. We, therefore, con-
clude that further development of the record is unnecessary and that
McLamb cannot establish a due process violation under Sandin; the
decision below is therefore

AFFIRMED.

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