                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              MAR 19 2002
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 LIONEL JOHNSON-BEY,

          Plaintiff-Appellant,
 v.                                                          No. 01-3382
 M.E. RAY, Warden, USP Leavenworth;                 (D.C. No. 01-CV-3172-GTV)
 E. PIERCE, Unit Manager, A-1, USP                            (D. Kan.)
 Leavenworth; R. SWANSON, Counselor,
 A-1 Unit, USP Leavenworth; J. TROTT,
 A-1 Unit, Case Manager, USP
 Leavenworth; (FNU) KENNY,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before SEYMOUR, HENRY and BRISCOE, Circuit Judges.


      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)(2); 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        This order and judgment is not binding precedent, except under the doctrines of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.
       Plaintiff Lionel Johnson-Bey, a federal prisoner appearing pro se, appeals from the

district court’s dismissal of his civil rights action brought pursuant to Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). We

exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, reverse in part, and

remand for further proceedings.

       The facts alleged in plaintiff’s complaint all occurred while plaintiff was housed at

the United States Penitentiary in Leavenworth, Kansas (USP-Leavenworth). In July

2000, plaintiff was allegedly ordered to share a cell with convicted World Trade Center

bomber Mahmud Abouhalima. After refusing to comply with the order, plaintiff was

placed in a special housing unit (SHU), a false report was allegedly filed against him

charging him with possession of a knife found in Abouhalima’s cell, and false

information was allegedly provided to Abouhalima indicating that plaintiff had attempted

to set him up for a disciplinary violation. Plaintiff alleged that these actions were the

product of racial and religious discrimination on the part of several correctional officers

employed at USP-Leavenworth, all of whom were named as defendants in plaintiff’s

complaint. Because the defendants’ actions allegedly made it unsafe for plaintiff to

remain at USP-Leavenworth, plaintiff requested relief in the form of a transfer to a

federal facility in Nebraska or Iowa. Plaintiff also requested $1,500 per day for the racial

and religious discrimination, and $1.8 million for the “mental, emotional duress”caused to

him by the defendants’ conduct. Complaint at 6.


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       Subsequent to the filing of his complaint, plaintiff was transferred from USP-

Leavenworth to a federal correctional facility in Lompoc, California. Plaintiff thereafter

filed supplemental pleadings alleging that he was in danger at Lompoc and continued to

suffer mental distress because at least one of Abouhalima’s co-defendants was housed

there. Plaintiff requested a transfer from Lompoc to facilities in Missouri, Illinois, or

Minnesota.

       The district court dismissed plaintiff’s complaint for failure to state a claim upon

which relief could be granted. In doing so, the district court concluded that plaintiff’s

transfer from USP-Leavenworth to Lompoc rendered moot his request for injunctive

relief, and that, in any event, plaintiff had no protected right to be housed in or transferred

to any particular facility. The district court further concluded that plaintiff’s request for

monetary damages for mental or emotional distress was defeated by his failure to allege

any “prior showing of physical injury.” 42 U.S.C. § 1997e(e). The district court also

concluded that plaintiff’s allegations of racial and religious discrimination were too vague

and conclusory to establish a claim of constitutional deprivation. Lastly, the district court

concluded that plaintiff’s placement in restrictive confinement did not state a claim of

constitutional significance.

       We agree with the district court’s dismissal of plaintiff’s request for injunctive

relief, i.e., his request to be transferred to another facility. As the district court correctly

noted, an inmate such as plaintiff “has no justifiable expectation that he will be


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incarcerated in any particular” facility. Olim v. Wakinekona, 461 U.S. 238, 245 (1983);

see Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (noting “there is no federal

constitutional right to incarceration in any particular prison”). Further, while plaintiff has

expressed concerns about his safety due to the presence of certain inmates at Lompoc, he

has not alleged that federal correctional officials at Lompoc have failed to fulfill their

obligation to take reasonable measures to guarantee his safety. See Farmer v. Brennan,

511 U.S. 825, 833, 847 (1994) (affirming that prison officials have duty to protect

prisoners from violence by other prisoners); Barney v. Pulsipher, 143 F.3d 1299, 1310

(10th Cir. 1998) (same).

       We further agree with the district court that plaintiff failed to state a claim upon

which relief could be granted arising out of his initial placement in SHU at USP-

Leavenworth. As noted, plaintiff’s complaint alleged that he was placed in SHU for

failing to follow an order to share a cell with Abouhalima. We are unable to discern any

possible constitutional violation arising out of that situation. In particular, there is no

allegation that plaintiff was deprived of any procedural due process rights prior to his

placement in SHU.

       Although it is a closer question, we also agree with the district court’s dismissal of

plaintiff’s claim that one or more officials at USP-Leavenworth filed a false disciplinary

report charging him with possession of a knife. Inmates such as plaintiff are entitled to be

free from arbitrary actions by prison officials. Protection from such arbitrary actions


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generally comes in the form of procedural due process rights, e.g., prior written notice of

a violation, the right to present witnesses and evidence, a written statement of fact-

finding, and a decision by an impartial body. See McPherson v. McBride, 188 F.3d 784,

787 (7th Cir. 1999). Here, there is no assertion by plaintiff, and we are unwilling to

assume, that he was deprived of such procedural due process rights following the alleged

filing of the false disciplinary report. Thus, he has no viable due process claim. See id.

Finally, we agree with the district court that plaintiff failed to offer any substantiation for

his conclusory assertion that the filing of the report was racially or religiously motivated.

       We conclude the district court erred in dismissing plaintiff’s remaining claim, i.e.,

that one of the officials at USP-Leavenworth falsely informed Abouhalima that plaintiff

had attempted to “set him up” for a disciplinary violation (by apparently placing a knife in

Abouhalima’s cell). While we agree with the district court that plaintiff failed to offer

any substantiation for his assertion that this act was racially or religiously motivated, we

nevertheless conclude that the act, if true, was sufficient to state a claim upon which relief

could be granted. In Benefield v. McDowall, 241 F.3d 1267, 1270-72 (10th Cir. 2001),

we held that an inmate had adequately alleged an Eighth Amendment violation when he

asserted that a correctional officer deliberately exposed him to the risk of harm at the

hands of other inmates by labeling him a “snitch.” The facts alleged by plaintiff in this

case are sufficiently similar in our view to warrant further proceedings. In particular, a

liberal construction of plaintiff’s pleadings indicates that the officer’s alleged statements


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to Abouhalima were intended to, and in fact did, increase the risk of physical danger to

plaintiff. The fact that plaintiff suffered no physical injury resulting from the officer’s

alleged action, though relevant to the issue of damages, see 42 U.S.C. § 1997e(e), does

not require dismissal of the claim. See Searles v. Van Bebber, 251 F.3d 869, 876, 878

(10th Cir. 2001) (concluding that § 1997e(e) limits an inmate’s ability to recover for

mental or emotional injuries, but does not bar recovery of nominal or punitive damages).

       AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further

proceedings. Plaintiff is reminded of his obligation to continue making partial payments

until the entire balance of the appellate filing fee is paid.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge




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