
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1351                                    DAVID FLEMING,                                Plaintiff, Appellant,                                          v.                          DEPARTMENT OF CORRECTIONS, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 96-1352                                DAVID GORDON FLEMING,                                Plaintiff, Appellant,                                          v.                          DEPARTMENT OF CORRECTIONS, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            David Fleming on Memorandum in Support of Certificate of  Probable            _____________        Cause and on brief pro se.                                 ____________________                                    August 5, 1996                                 ____________________                 Per Curiam.    David Gordon  Fleming  is a  Maine  state                 __________            prisoner incarcerated  at the Maine  Correctional Institution            in  Warren (MCI-Warren).    On  March  1, 1996,  Fleming  was            transferred  within MCI-Warren from Housing Unit C to Housing            Unit B.   He was  later informed  that, "You became  loud and            started  hollering trying  to incite  all the  inmates  in C.            Wing,  your action[s]  were reviewed  by  the Program  Review            Committee, and  they recommended that  you be returned  to B.            Wing so that you would not disrupt the unit."   Shortly after            the transfer,  Fleming filed  both a  civil rights  complaint            pursuant  to  42 U.S.C.     1983,  Fleming v.  Department  of                                               _______     ______________            Corrections,  et  al.,  Civil  No.  96-70-B,  and  a  "habeas            _____________________            petition,"  Fleming  v.  Department of  Corrections,  et al.,                        _______      ___________________________________            Civil No. 96-77-B.  A magistrate judge recommended  that both            filings be dismissed  as frivolous within  the meaning of  28            U.S.C.      1915(d).     The  district   judge  adopted   the            magistrate's  recommendations.  Fleming  now appeals from the            dismissal of his  complaint in civil action No.  96-70-B.  He            also  seeks a certificate of probable cause permitting him to            appeal the dismissal of his "habeas petition" in civil action            No. 96-77-B.1                        1                                            ____________________               1After Fleming  filed his  petition for  a certificate  of               1            probable cause in this  court, the President signed  into law            the  Antiterrorism and Effective  Death Penalty Act  of 1996,            Pub. L.  No.  104-132,  110  Stat.  1214  (April  24,  1996).            Although Fleming  has not raised  the issue, we note  that we            need not decide in this case whether any of the amendments in            the Act apply since it would not alter our disposition.                                         -2-                                          I.                 For  the following reasons,  we affirm the  dismissal of            Fleming's complaint in civil action No. 96-70-B.                   Relying on  the Supreme  Court's decision  in Sandin  v.                                                               ______            Conner, 115 S. Ct. 2293 (1995), the district court ruled that            ______            Fleming  had no liberty interest  in being free from transfer            to the "B-side" of MCI-Warren which would trigger due process            requirements.  Fleming makes no meaningful argument that this            ruling was in  error.  Instead, he criticizes  the holding of            Sandin and suggests that, if it is the "new law of the land,"            ______            he has little  incentive to abide  by prison  rules.  We  are            bound by  Supreme Court  decisions, and we  see no  basis for            setting  aside the  district  court's  ruling  that  the  due            process claim is frivolous.                   Assuming  without  deciding  that  the  issue  has  been            preserved  on  appeal,  we  would  affirm  the  dismissal  of            Fleming's equal protection claim as frivolous.   Fleming does            not allege  that he  is a  member of a  protected class,  and            there is  no suggestion that  the transfer to Housing  Unit B            was the result of invidious discrimination.  See, e.g., Wolff                                                         ___  ____  _____            v.  McDonnell, 418  U.S.  539,  556  (1974)  (observing  that                _________            prisoners  are protected  under the  Equal Protection  clause            against  invidious discrimination).    Mere inconsistency  in            prison  management does not  support a  constitutional claim.            See Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982).            ___ ______    ______                                         -3-                 Finally,  the  notion  that prison  officials  "falsely"            charged  Fleming with attempting  to incite other  inmates in            retaliation  for his  having filed a  lawsuit in  Maine state            court is sufficiently implausible, on the facts of this case,            to  warrant the  dismissal of Fleming's  retaliatory transfer            claim as frivolous.   See Neitzke v. Williams,  490 U.S. 319,                                  ___ _______    ________            327 (1989) (observing that   1915(d) accords judges the power            to "pierce the veil" of the complaint's factual allegations).            Fleming   admits  to  the  underlying  conduct  found  to  be            objectionable,  though not to  its characterization by prison            officials.   The  particular  officials who  reported Fleming            were not defendants in the  Maine lawsuit.  And, although the            Maine lawsuit was pending at  the time of Fleming's transfer,            it was shortly thereafter dismissed as totally frivolous.                   Fleming's  remaining  arguments   do  not  appear   with            sufficient clarity in his complaint or are  waived on appeal.            Under the circumstances, and for the reasons stated above, we            find no error in the dismissal of the complaint.                                           II.                 We  also deny  Fleming's request  for  a certificate  of            probable cause in civil action No. 96-77-B, and we  summarily            dismiss the appeal.  See  Loc. R. 27.1.                                  ___                 To the extent that Fleming's "habeas petition" is better            construed  as a    1983  complaint,  leave to  appeal is  not            necessary.   However, we  have already rejected  as frivolous                                         -4-            Fleming's  claim that the  transfer to "B-side"  violated his            right to due process.   We are also  persuaded that in  civil            action No. 96-77-B,  Fleming abandoned any    1983 claims  in            his  objection  to  the  magistrate's  report  and subsequent            filings.                   Fleming, however, would  have us construe his  filing in            civil action  No. 96-77-B  as a habeas  petition.   He argues            that inmates at  Maine State Prison are permitted  to earn up            to three work-related  good time  credits in  any month,  and            that  inmates  at  MCI-Warren,  himself  included, have  been            unlawfully limited to only one or two  credits per month.  We            do not think this claim was raised with sufficient clarity in            Fleming's "petition,"  which focused on the facts surrounding            his  transfer  from  one housing  unit  within  MCI-Warren to            another.  Accordingly,  we deny the request for a certificate            of probable cause.  See Cacoperdo v. Demosthene, 37 F.3d 504,                                ___ _________    __________            507 (9th  Cir. 1994) (grounds  not raised in  habeas petition            are not cognizable on appeal),  cert. denied, 115 S. Ct. 1378                                            ____________            (1995).                                         -5-
