                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 26 2000
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 EVELIO DUARTE-VESTAR,

          Plaintiff-Appellant,
 v.                                                    No. 99-6423
                                                 (D.C. No. 98-CV-1331-T)
 RICK L. HUDSON and JOHN DOE,                        (W.D. of Okla.)
 an Officer,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Proceeding pro se, Evelio Duarte-Vestar appeals from the district court’s

dismissal of his civil rights claims, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and




      *
        After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
(ii) and Fed. R. Civ. P. 12(b)(6), against Rick Hudson, Warden, and John Doe, an

Officer, of the North Fork Correctional Facility in Sayre, Oklahoma. We

affirm.

      Mr. Duarte-Vestar was convicted of a misdemeanor in Wisconsin. The

Wisconsin Department of Corrections, pursuant to a contract with the Corrections

Corporation of America, shipped Mr. Duarte-Vestar to the North Fork

Correctional Facility in Sayre, Oklahoma. The North Fork facility houses medium

security felons. Although Wisconsin authorizes the housing of inmates convicted

of misdemeanor offenses with those inmates convicted of felony offenses, that

practice is generally prohibited in Oklahoma. See 57 Okla. Stat. Ann. §

563.2(D)(1) (Supp. 1998) (“A private prison contractor housing . . . inmates of

another state shall not accept: Any inmate who would be incarcerated in the

facility for a misdemeanor unless such incarceration in the facility is consistent

with American Correctional Association requirements relating to the incarceration

of inmates convicted of more serious offenses.”); Affidavit of Warden Hudson, at

¶ 3 (“According to Oklahoma Law 57 O.S. 563(D)(1) and American Correctional

Association . . . standards, private prisons may not house any inmate who would

be incarcerated in the facility for conviction of a misdemeanor.”). Shortly after

Mr. Duarte-Vestar arrived at the North Fork Correctional Facility, Warden

Hudson contacted the Wisconsin Department of Corrections to notify them that he


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could not house misdemeanor inmates with the felony inmates at North Fork.

See Aple. App. at 19-20. Wisconsin initiated efforts to remedy the problem by

removing the misdemeanor inmates from the North Fork Correctional Facility.

See id. at 20. In the interim, Warden Hudson arranged for Mr. Duarte-Vestar and

other transferred misdemeanor inmates to be held separately from the general

population at the prison. See id. Mr. Duarte-Vestar’s property was seized and he

was placed in administrative segregation from September 4, 1998 to September

14, 1998. See id. at 17. He was then transferred back to a Wisconsin facility.

      Mr. Duarte-Vestar instituted an action in the district court pursuant to 42

U.S.C. § 1983, alleging that his administrative confinement and the seizure of his

property violated his constitutional rights. Warden Hudson filed a motion to

dismiss together with the court-ordered Martinez report. 1 The Magistrate Judge

issued a Report and Recommendation, suggesting that Warden Hudson’s motion

to dismiss be granted, and that the complaint be dismissed as to all defendants for

failure to state a § 1983 claim upon which relief can be granted pursuant to Fed.

R. Civ. P. 12(b)(6) and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

The district court adopted the Magistrate Judge’s Report and Recommendation.

      We may rely on a Martinez report in dismissing a claim as frivolous as long

as the report’s factual findings are not controverted. See Hall v. Bellmon, 935


      1
          See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

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F.2d 1106, 1109 (10th Cir. 1991). Mr. Duarte-Vestar has not controverted the

facts set forth in the Martinez report, and has not challenged the asserted reason

for the actions taken by the prison, which was to protect Mr. Duarte-Vestar from

the more violent felony inmates.

       Having considered Mr. Duarte-Vestar’s allegations, the Martinez report,

and the record on appeal, we agree with the Magistrate Judge’s Report and

Recommendation and the District Court order. Mr. Duarte-Vestar’s placement in

administrative segregation was not an imposition of punishment. He was still

allowed access to all programs and privileges offered to the general population.

There was no constitutional deprivation. Therefore, we AFFIRM the dismissal of

the action pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(i)

and (ii). Mr. Duarte-Vestar must continue making payments on his filing fees

until they are paid in full.



                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




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