                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 18 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LARRY GARDUNO,

                Plaintiff-Appellant,

    v.                                                   No. 00-1388
                                                     (D.C. No. 95-D-1129)
    ROBERT FURLONG; ENDRE                                  (D. Colo.)
    SAMU; DENNIS HOUGNON; LOUIS
    NORDINE; B. BAUER, Capt.; SCOTT
    HALL; DAVID TEIGEN, in their
    individual and official capacities,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY, BRISCOE,          and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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-appellant Larry Garduno brought this civil rights complaint under

42 U.S.C. § 1983 seeking,   inter alia , compensatory damages, punitive damages,

and an injunction directing defendants to expunge a disciplinary conviction for

attempted murder from his files. Mr. Garduno only appeals from the district

court’s order adopting the recommendation of the magistrate judge that

defendants’ motion for summary judgment be granted on Mr. Garduno’s due

process claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.


                                         I.

      Mr. Garduno’s conviction stemmed from a violent incident at the Limon

Correctional Facility, Colorado, on January 28, 1993, during which several guards

were stabbed. Following a disciplinary hearing on the charges, Mr. Garduno was

convicted of attempted murder and sentenced to thirty-days punitive segregation

and the loss of forty-five days good time credit.

      In his civil rights complaint, Mr. Garduno alleged that the disciplinary

proceeding denied him due process and equal protection of the law. He claimed

that the charges, brought more than eleven months after the incident, were

fabricated and based on information provided by confidential informants who did

not exist. He alleged the notice of charges was inadequate to allow him to

prepare a defense, the purported witnesses did not testify, and the hearing board

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did not establish the credibility and reliability of the confidential informants. As

a result of his conviction, Mr. Garduno alleged that he was reclassified to a more

secure facility, placed in segregation, and deprived of good time credits in

violation of his constitutional rights. Mr. Garduno also asserted an equal

protection claim, alleging that defendants’ actions were a conspiracy to deprive

him of his constitutional rights because of his national origin as an Hispanic.

         Defendants filed a motion for summary judgment based on Mr. Garduno’s

failure to allege deprivation of a liberty interest, Eleventh Amendment immunity,

qualified immunity, and vague and conclusory allegations of conspiracy.

Defendants also asserted that Mr. Garduno’s claim based on a loss of good time

credits was moot as his good time credits had been restored.   1
                                                                   The district court

referred Mr. Garduno’s complaint to a magistrate judge pursuant to 28 U.S.C.

§ 636.

         The district court adopted the recommendation of the magistrate judge that

defendants’ motion for summary judgment on Mr. Garduno’s equal protection

claims be denied, and appointed counsel. Following a three-day bench trial to the

magistrate judge, sitting as a special master, the court found in favor of




1
      Mr. Garduno did not refute defendants’ assertion that his good time credits
had been restored. Therefore, we agree that the claim is moot.

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defendants on Mr. Garduno’s equal protection claims. Mr. Garduno does not

appeal this decision.   2



       The magistrate judge relied on   Sandin v. Conner , 515 U.S. 472 (1995), in

recommending that defendants’ summary judgment motion be granted on

Mr. Garduno’s due process claims. The court concluded that Mr. Garduno’s

claims failed to implicate a liberty interest entitled to procedural due process

protection. It is from this holding that Mr. Garduno appeals.


                                           II.

       We review the district court’s decisions on motions for summary judgment

de novo. Trujillo v. Univ. of Colo. Health Scis. Ctr   ., 157 F.3d 1211, 1213 (10th

Cir. 1998). Summary judgment is appropriate only if “there is no genuine issue as

to any material fact and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c).

       Mr. Garduno alleges that his transfer from the Limon Correctional Facility

to the Colorado State Penitentiary, a more restrictive facility, and his placement in

2
       Although Mr. Garduno continues to argue that, due to ethnic
discrimination, defendants conspired to remove him to a more secure prison,
remove him from the general prison population, and place him in segregation on
false charges, he has not alleged any specific facts indicating that defendants
acted with a discriminatory motive or that they conspired to deny him his
constitutional rights. See Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir.
1994) (noting that perfunctory complaints which fail to frame and develop an
issue are insufficient to invoke appellate review).


                                           -4-
administrative segregation constituted the kind of “atypical and significant

hardship” recognized by the    Sandin Court as implicating a liberty interest. 515

U.S. at 484. In Sandin , the Court determined that, although a state may create

liberty interests that are protected by the Due Process Clause, such interests

      will be generally limited to freedom from restraint which, while not
      exceeding the sentence in such an unexpected manner as to give rise
      to protection by the Due Process Clause of its own force . . .
      nonetheless imposes atypical and significant hardship on the inmate
      in relation to the ordinary incidents of prison life.

Id. at 484.

      The Sandin Court noted a prior holding that “the Due Process Clause does

not protect every change in the conditions of confinement having a substantial

adverse impact on the prisoner.”    Id. at 478 (citing Meachum v. Fano , 427 U.S.

215, 224 (1976)). As we have previously stated, “[t]he due process rights of

prisoners are subject to reasonable limitation or restriction in light of the

legitimate security concerns of the institution, . . . and ‘the transfer of an inmate

to less amenable and more restrictive quarters for nonpunitive reasons is well

within the terms of confinement ordinarily contemplated by a prison sentence.’”

Penrod v. Zavaras , 94 F.3d 1399, 1406 (10th Cir. 1996) (quoting     Hewitt v. Helms ,

459 U.S. 460, 468 (1983));    see also Templeman v. Gunter , 16 F.3d 367, 369 (10th

Cir. 1994) (holding that Colorado prison regulations do not create a liberty

interest in an inmate’s prison placement classification).



                                          -5-
      Mr. Garduno’s allegations regarding the conditions of his confinement are

very vague. He claims that his transfer subjected him to “23 hour lockdown and

severe restrictions, including an inability to visit the law library.” Appellant’s Br.

at 6. He does not, however, provide us with any description of the “severe

restrictions” or any specific indication of their duration. Although Mr. Garduno

appears to argue that his reclassification and relocation were as a result of his

conviction on the attempted murder charge, in its order disposing of

Mr. Garduno’s equal protection claims, the magistrate judge stated that when the

charges against Mr. Garduno were initially brought, he had already been

transferred from the Limon facility to the Freemont Correctional Facility, then to

the Centennial Correctional Facility, and finally to the Colorado State Penitentiary

where he was housed in December 1993. The disciplinary hearing on the

attempted murder charge was not held until January 12, 1994. Mr. Garduno never

specifically refuted this finding.

      Contrary to Mr. Garduno’s argument, his allegations fall squarely within

the Sandin decision . Sandin concerned a prisoner’s claim that there were

procedural irregularities in his disciplinary hearing which resulted in a finding of

misconduct and a thirty-day punitive segregated confinement. The Court

examined the conditions of the prisoner’s confinement and determined that the

prisoner’s conditions essentially “mirrored those conditions imposed upon



                                          -6-
inmates in administrative segregation and protective custody,” so the prisoner’s

“confinement did not exceed similar, but totally discretionary, confinement in

either duration or degree of restriction.” 515 U.S. at 486. The Court concluded

that the conditions of confinement alleged by the prisoner due to an allegedly

faulty disciplinary proceeding were “within the range of confinement to be

normally expected for one serving an indeterminate term of 30 years to life.”         Id.

at 487. Consequently, there was no protected liberty interest implicated and no

constitutional due process safeguards were triggered.      Id.

       Despite Mr. Garduno’s conclusory assertions to the contrary, he has not

provided any evidence that would distinguish either the discretionary aspect of his

relocation or the duration and conditions of his segregation from     Sandin .

Therefore, we conclude that Mr. Garduno has no legally protected liberty interest

in either the location of his confinement,    see Sandin , 515 U.S. at 486; Olim v.

Wakinekona , 461 U.S. 238, 245-46 (1983), or the conditions or duration of his

segregation, see Sandin , 515 U.S. at 486-87.

       In a vague and conclusory manner, Mr. Garduno alleges that, due to racial

animus, defendants conspired to charge him with false disciplinary charges,

relocate him to a more secure prison, and remove him from the general prison

population. In his order finding for defendants on Mr. Garduno’s equal

protection claims, the magistrate judge, sitting as a special master, thoroughly



                                             -7-
discussed Mr. Garduno’s allegations of conspiracy and irregularities in the

disciplinary process, ultimately finding that Mr. Garduno had presented no

evidence that the hearing panel acted with discriminatory animus or deliberately

ignored the Code of Prison Discipline rules.     See Appellant’s App. at 123-125.

Mr. Garduno has not alleged any specific facts which would establish that

defendants acted with a discriminatory motive or conspired to deprive him of his

constitutional rights.   See Boddie v. Schnieder , 105 F.3d 857, 862 (2d Cir. 1997)

(holding that vague, conclusory, or general allegations of conspiracy to deprive a

party of constitutional rights cannot withstand a motion seeking dismissal).

Moreover, Mr. Garduno failed to provide this court with the record necessary to

review this argument.    See Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000)

(holding that where appellant did not provide sufficient record to permit review,

appellate court must affirm). Therefore, we will not address Mr. Garduno’s

claims of irregularities in the discipline proceeding.

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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