Judkins v. Brennan ( 1997 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 8 1997
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    JERRY W. JUDKINS,
    Plaintiff-Appellant,
    v.                                                 No. 96-6316
    (D.C. No. CIV-96-148-R)
    TOM BRENNAN; LARRY A.                              (W.D. Okla.)
    FIELDS; STEVE HARGETT; JOE R.
    MANNING; CALVINO SAMUEL
    MUSE, SR.; HUGH REED; WILLIAM
    R. EVANS; DANIEL BINTZ; PHIL
    DESSAUER; GREGORY H. HALL,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District 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    This order and judgment is not binding precedent, except under the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.
    **
    Honorable Michael Burrage, Chief Judge, United States District Court for
    the Eastern District of Oklahoma, sitting by designation.
    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. The case is therefore
    ordered submitted without oral argument.
    Plaintiff Jerry W. Judkins, an inmate in the Oklahoma prison system,
    appeals from a district court order granting summary judgment for defendants in
    this civil rights action brought under 
    42 U.S.C. § 1983
    . Although plaintiff
    pursued several claims in district court, he limits this appeal to two issues:
    (1) whether his transfer from a medium security prison in Oklahoma to a
    maximum security prison in Texas, without notice and a hearing, violated due
    process; and (2) whether his brief out-of-state incarceration violated his right of
    access to the courts because of the allegedly inadequate legal facilities available.
    On de novo review, Kaul v. Stephan, 
    83 F.3d 1208
    , 1212 (10th Cir. 1996), we
    affirm for substantially the reasons stated by the district court.
    The district court rejected plaintiff’s contentions regarding notice and a
    hearing because his interstate prison transfer did not implicate any due process
    guarantees--either directly, as a matter of general constitutional principle, Olim v.
    Wakinekona, 
    461 U.S. 238
    , 244-48 (1983), or indirectly, as a function of specific
    state-created interests warranting constitutional protection, see 
    id. at 248-51
    . We
    agree, and add that plaintiff’s attempt to derive a constitutionally cognizable
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    interest from state law is foreclosed because neither out-of-state transfer nor
    maximum security custody “imposes atypical and significant hardship on the
    inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 
    115 S. Ct. 2293
    , 2300 (1995); see also Penrod v. Zavaras, 
    94 F.3d 1399
    , 1406-07
    (10th Cir. 1996).
    The district court rejected plaintiff’s access-to-court claim because he had
    not alleged, much less shown, actual prejudice to the conduct of litigation, which
    we have required when the alleged lack of access was very brief. See Beville v.
    Ednie, 
    74 F.3d 210
    , 213 & n.5 (10th Cir. 1996). The district court’s analysis
    gains additional support from a recent Supreme Court decision clarifying that, as
    a general matter, an inmate alleging inadequate legal resources “must go one step
    further and demonstrate that the alleged shortcomings in the library or legal
    assistance program hindered his efforts to pursue a [nonfrivolous] legal claim.”
    Lewis v. Casey, 
    116 S. Ct. 2174
    , 2180 (1996).
    AFFIRMED. The mandate shall issue forthwith.
    Entered for the Court
    James K. Logan
    Circuit Judge
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