USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1351

DAVID FLEMING,
Plaintiff, Appellant,

v.

DEPARTMENT OF CORRECTIONS, ET AL.,

Defendants, Appellees.
____________________

No. 96-1352

DAVID GORDON FLEMING,

Plaintiff, Appellant,

v.

DEPARTMENT OF CORRECTIONS, ET AL.,

Defendants, Appellees.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

David Fleming on Memorandum in Support of Certificate of

_____________

Proba

Cause and on brief pro se.

____________________

August 5, 1996
____________________

Per Curiam.
__________

David Gordon

prisoner incarcerated

Fleming

at the Maine

is a

Maine

state

Correctional Institution

in

Warren (MCI-Warren).

transferred

Unit B.

Wing,

March

1, 1996,

later informed

hollering trying

your action[s]

Committee, and

that, "You became

to incite

all the

were reviewed

by

the transfer,

to

they recommended that

Fleming filed

42 U.S.C.

Corrections, et al.,
_____________________

petition,"

was

Fleming
_______

Civil No. 96-77-B.

filings be dismissed

both a

1983,

Civil

v.

No.

loud and

inmates

the Program

you be returned

Wing so that you would not disrupt the unit."

pursuant

Fleming

within MCI-Warren from Housing Unit C to Housing

He was

started

On

96-70-B,

Review

to B.

Shortly after

civil rights

Fleming v.
_______

in C.

complaint

Department of
______________

and

"habeas

Department of Corrections, et al.,

___________________________________

A magistrate judge recommended

as frivolous within

that both

the meaning of

28

U.S.C.

1915(d).

magistrate's

district

recommendations.

dismissal of his

also

The

Fleming

judge

adopted

the

now appeals from the

complaint in civil action No.

96-70-B.

He

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

____________________

1After Fleming
1

filed his

probable cause in this

the

petition for

court, the President signed

Antiterrorism and Effective

Pub. L.

No.

104-132,

Although Fleming

a certificate

110

Stat.

has not raised

Death Penalty Act

1214

(April

into law
of 1996,

24,

the issue, we note

of

1996).
that we

need not decide in this case whether any of the amendments in

the Act apply since it would not alter our disposition.

-2-

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.

Conner, 115 S. Ct. 2293 (1995), the district court ruled that
______

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,"

______

he has little

bound by

setting

incentive to abide

Supreme Court

aside the

by prison

decisions, and we

district

court's

rules.

see no

ruling

We

are

basis for

that

the

due

process claim is frivolous.

Assuming

preserved

on

without

deciding

appeal,

we

would

that

the

affirm

issue

the

Fleming's equal protection claim as frivolous.

not allege

there is

that he

is a

member of a

no suggestion that

has

been

dismissal

Fleming does

protected class,

the transfer to Housing

was the result of invidious discrimination.

of

and

Unit B

See, e.g., Wolff

___ ____ _____

v.

McDonnell, 418
_________

prisoners

against

prison

U.S.

are protected

539,

556

under the

(1974)

Equal Protection

invidious discrimination).

management does not

(observing

support a

that

clause

Mere inconsistency

constitutional claim.

See Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982).
___ ______
______

-3-

in

Finally,

charged

the

notion

that prison

Fleming with attempting

retaliation

for his

officials

to incite other

having filed a

lawsuit in

"falsely"

inmates in

Maine state

court is sufficiently implausible, on the facts of this case,

to

warrant the

dismissal of Fleming's

claim as frivolous.

retaliatory transfer

See Neitzke v. Williams,

___ _______
________

327 (1989) (observing that

490 U.S. 319,

1915(d) accords judges the power

to "pierce the veil" of the complaint's factual allegations).

Fleming

admits

objectionable,

officials.

The

to

the

underlying

though not to

particular

were not defendants in the

Maine lawsuit was pending at

conduct

found

to

be

its characterization by prison

officials who

Maine lawsuit.

reported Fleming

And, although the

the time of Fleming's transfer,

it was shortly thereafter dismissed as totally frivolous.

Fleming's

remaining

arguments

do

sufficient clarity in his complaint or are

not

appear

with

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

probable cause in civil action No. 96-77-B, and we

dismiss the appeal.

See
___

of

summarily

Loc. R. 27.1.

To the extent that Fleming's "habeas petition" is better

construed

necessary.

as a

1983

However, we

complaint,

leave to

have already rejected

appeal is

not

as frivolous

-4-

Fleming's

claim that the

right to due process.

action No. 96-77-B,

his

objection

to

transfer to "B-side"

We are also

persuaded that in

Fleming abandoned any

the

magistrate's

violated his

report

civil

1983 claims

in

and subsequent

filings.

Fleming, however, would

have us construe his

filing in

civil action

No. 96-77-B

that inmates at

petition.

He argues

Maine State Prison are permitted

to earn up

to three work-related

that

inmates

at

as a habeas

good time

MCI-Warren,

credits in

himself

unlawfully limited to only one or two

any month,

included, have

credits per month.

and

been

We

do not think this claim was raised with sufficient clarity in

Fleming's "petition,"

his

transfer

another.

from

one housing

Accordingly,

of probable cause.

507 (9th

which focused on the facts surrounding

within

MCI-Warren to

we deny the request for a certificate

See Cacoperdo v. Demosthene, 37 F.3d 504,

___ _________
__________

Cir. 1994) (grounds

are not cognizable on appeal),

(1995).

unit

not raised in

habeas petition

cert. denied, 115 S. Ct. 1378

____________

-5-