                    IN THE COURT OF APPEALS OF TENNESSEE
                                                                                 FILED
                                      AT KNOXVILLE                             March 24, 1999

                                                                              Cecil Crowson, Jr.
                                                                              Appellate C ourt
                                                                                  Clerk



GARY LYNN MACK,                               ) C/A NO. 03A01-9806-CV-00215
                                              )
          Plaintiff-A ppellant,               ) MOR GAN CIRCU IT
                                              )
v.                                            ) RUS SELL E. SIM MO NS, JR .,
                                              ) JUDGE
CHA RLIE JON ES, et a l.,                     )
                                              ) AFFIRMED AND
          Defendants-Appellees.               ) REMANDED




GAR Y LY NN M ACK , pro se.

PAUL SUM MERS, Attorney General and Reporter, MICHAEL E. M OORE, Solicitor
General, and ABIGAIL TURNER, Assistant Attorney General, Nashville, for
Appellees Jones, Armes, Newberry & Elmore.




                                        O P I N IO N


                                                             Franks, J.


                 In this action, plaintiff a prisoner, named Charlie Jones, the warden of

the Morgan County Regional Correction Facility, Rick Elmore, Regina Armes and

Carey Newberry as defendants, alleging a violation of his civil rights under 42 U.S.C.

§1983 .

                 The com plaint alleges th at on Janu ary 9, 1996, pla intiff was in volved in

a fight with another inmate, Randy Hill, who was white, and on January 9, 1996, the

disciplinary boa rd of the M organ C ounty Regio nal Correc tional Facility fou nd him

guilty of an infraction and placed him on maximum security status. He further alleges

this action w as racially discrimin atory because he was d isciplined an d the wh ite
inmate was not. He also avers that he was denied due process of law because the

disciplinary board members denied him the right to call witnesses on his behalf.

               The complaint states that Jones is the warden of the prison and Rick

Elmore is identified as chairman, with more, and there is no identity of the

involvement of any of the other parties. In a memorandum in support of defendants’

motion to dismiss, defen dants explain that Elmo re, Newberry and A rmes are mem bers

of the disciplinary board wh ich found plaintiff guilty of an assa ult in a disciplinary

proceeding. Responding to defendants’ motion to dismiss pursuant to T.R.C.P.

§12.02, the Trial Judge dismissed th e compla int on the gro und that pla intiff failed to

state a claim upon which relief could be granted.

               The Te nnessee S upreme C ourt has “es tablished tha t a compla int ‘should

not be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim tha t would en title him to

relief’”. Fuerst v. M ethodist H osp. South , 588 S.W.2d 84 7, 848 (Tenn. 197 8),

(quoting Conley v. Gibson, 355 U.S. 41-46, 78 S.Ct. 99, 102, 2 L.Ed . 80 (1957)). In

making its determination, the court should construe the complaint liberally in favor of

the plain tiff. Id. at 84 8-84 9. Co mplaints filed by pro se plaintiffs sho uld be held “to

less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

404 U.S. 519, 52 0, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1 972). Howe ver, as one court

has said, the court “need no argue a pro se litigant’s case nor create a case for the pro

se which does not exist.” Molina v. Kaye, 956 F.Supp. 261 , 263 (E.D.N.Y . 1996).

               42 U.S.C. §1983 provides:

               Every person who, under color of any statute, ordinance, regulation
               custom or usage, of any State or Territory or the District of Columbia,
               subjects, or causes to be subjected, any citizen of the United States or
               other person within the jurisdiction thereof to the deprivation of any
               rights, privileges, or immunities secured by the Constitution and laws,
               shall be liable to the party injured in an action at law, suit in equity, or
               other p roper p roceed ing for redress . . . .


                                              2
In order to establish a claim for liability under this statute, “a plaintiff must plead and

prove . . . two elements: (1) that he has been deprived of a right ‘secured by the

Constitution and laws’ of the United States; and (2) that the defendant deprived him of

this right while acting under color of law.” Coffy v. Multi-County Narcotics Bureau,

600 F .2d 570 , 576 (6 th Cir. 1 979). Also see Dunn v. State of Tenn., 697 F.2d 121, 125

(6th Cir. 1982) cert. denied, 460 U .S. 108 6, 103 S .Ct. 177 8, 76 L .Ed.2d 349 (1 983).

               To state a §1983 claim, a plaintiff must set forth specific facts that

establish such claim. “It is not enoug h for a complaint un der §1983 to con tain mere

conclusory allegations of unconstitutional conduct by persons acting under color of

state law. Some factual basis for such claims must be set forth in the pleadings.”

Chapm an v. City o f Detroit, 808 F .2d 456 9, 465 ( 6th Cir . 1986) .

               A plaintiff must also allege personal involvement by the persons

charged. Liability cannot be established under a respondeat superior theory. The

mere rig ht to con trol, with out mo re, does not esta blish liab ility. Monell v. Dept. Of

Soc. Serv., 436 U.S. 658, 691 , 694 n.58, 98 S.Ct. 201 8, 2036-2037 (1 978). “There

must be a showing that the supervisor encouraged the specific incident of misconduct

or in some other way directly participated in it. At a minimum, a §1983 plaintiff must

show tha t a superviso ry official at least im plicitly authorized , approved or know ingly

acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v.

Bradley, 729 F.2d 416, 42 1 (6th Cir. 1984).

               The complaint in this case does not state a claim of racial discrimination

in the disciplinary proceedings at the correctional facility. The plaintiff alleged that he

was involved in a fight with another inmate, Randy Hill, who was white, and that he

was found guilty of assault and placed on maximum security status, and that Randy

Hill was found not guilty. Taking these facts as true, no claim of racial discrimination

has been alleged.


                                              3
               A claim o f racial discrim ination und er §1983 is a claim of “disparate

treatme nt”. See Daniels v. Board of Educ. Of Ravenna City Sch., 805 F.2d 203, 207

(6th Cir. 1986). “To prevail under the disparate treatment theory, a plaintiff must

show that he has been the victim of intentional discrimination.” Id. at 206. To

establish a prima fac ie case of dis parate treatm ent, a plaintiff m ust at least plead facts

“from w hich one c an infer, if su ch actions re main une xplained, tha t it is more likely

than not that such actions were ‘based on a discriminatory criterion illegal under the

act.’”. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949

(1978). H ere there is no allegation of intentional dis crimination . Plaintiff only

established that he was disciplined and that the white inmate involved in the fight was

not. He then conc luded that this action was d ue to racial discrimination. How ever,

the com plaint m ust be b ased on more th an con clusory al legation s. Chapman v. City of

Detroit, 808 F .2d 459 , 465 (6 th Cir. 1 986).

               The complaint does not state a claim of denial of due process of the

disciplinary proc eeding, be cause plain tiff did not h ave a liberty intere st in his security

status protected by the Constitution of the United States. Since plaintiff did not have a

liberty interest, he could not establish the first element of a §1983 claim, “that he has

been deprived of a right ‘secured by the Constitution and laws’ of the United States.”

               The leading case setting forth due process requirements in prison

disciplinary proceedings is Wolff v. M cdonnell , 418 U.S. 539, 94 S.Ct. 2963, 41

L.Ed.2 d 935 ( 1974) . (A libe rty interest m ust be in volved ).

               In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451

(1976), the Supreme Court held that there was no liberty interest created by the

Constitution of the State of Massachusetts requiring a hearing before a prisoner was

transfe rred to a differe nt prison where the con ditions w ere sub stantially les s favo rable.

In that case, several inmates were transferred to a maximum security facility from a


                                               4
medium security facility due to the suspicion that they were involved in nine arson

fires at the medium security facility. In finding no liberty interest, the Meachum Court

stated:

                       . . . we cannot agree that any change in the conditions of
               confinement having a substantial adverse impact on the prisoner
               involved is sufficient to invoke the protections of the Due Process
               Clause. . . . [G]iven a valid conviction, the criminal defendant has been
               constitutionally deprived of his liberty to the extent that the State may
               confine him and subject him to the rules of its prison system so long as
               the con ditions o f conf ineme nt do no t otherw ise viola te the C onstitutio n.
               The Constitution does not require that the State have more than one
               prison for convicted felons; nor does it guarantee that the convicted
               prisoner will be placed in any particular prison. . . . The initial decision
               to assign the convict to a particular institutio n is not subje ct to audit
               under the D ue Proce ss Clause, a lthough the degree of confinem ent in
               one prison may be quite different from that in another. The conviction
               has sufficiently extinguished the defendant’s liberty interest to empower
               the State to confine him in any of its prisons.

                      Neither, in o ur view, do es the Du e Process C lause in and of itself
               protect a du ly convicted p risoner aga inst transfer fr om one in stitution to
               another within the state prison system. Confinement in any of the
               State’s institutions is within the normal limits or range of custody which
               the conviction has authorized the State to impose. That life in one
               prison is mu ch more d isagreeable than in ano ther does n ot in itself
               signify that a Fourteenth Amendment liberty interest is implicated when
               a prisoner is transferred to the institution with the more severe rules.

Id. At 224-225.

               Based o n the foreg oing, a transf er to a more severe priso n facility wou ld

not be the type of “atypical and significant hardship” that would implicate the Due

Process Clause.

               This Court addressed this situation in Comp ton v. Cam pbell, No.

01A01 -9710-C H-0053 9, 1998 L EXIS 2 59 (Tenn . App. 199 8). We he ld that a

reclassification to a medium custody facility from a minimum custody facility is not

such a h ardship and it is th erefore not sub ject to du e proce ss prote ction. (Quoting

Sandin v. Conner, 115 S .Ct. 229 3 at 230 0.)

               Since there was no lib erty interest involv ed in this case , plaintiff cou ld

not establish the first element of a §1983 claim.

                                               5
               We con clude, theref ore, that the co mplaint fails to state a §198 3 claim

against any of the defendants and affirm the judgment of the Trial Court and remand

with the co st of the app eal assessed to the appe llant.




                                             __________________________
                                             Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




                                              6
