                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 30 1999
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


DERECK E. CHAPPELL,

          Plaintiff-Appellant,

v.

DAVID R. McKUNE, Warden,
Lansing Correctional Facility; JOHN
C. CALLISON, Former Deputy                             No. 99-3171
Warden of programs and operations of               (District of Kansas)
L.C.F.; R. A. STUPAR, Deputy                     (D.C. No. 95-3467-GTV)
Warden of programs and operations of
L.C.F.; ROGER BONNER, CSI of
intelligence and investigation unit of
L.C.F.; MICHAEL A. NELSON,
Warden, El Dorado Correctional
Facility,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
      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.

      Dereck E. Chappell, proceeding pro se, appeals the district court’s denial of

his Motion to Appoint Counsel and grant of the defendants’ Motion for Summary

Judgment. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms.

      Chappell filed a 42 U.S.C. § 1983 civil rights suit against various Kansas

state prison officials, alleging that his right to due process was violated when he

was placed in administrative segregation for an extended term without a hearing

and when his visitation rights were suspended for one year. The district court

dismissed the complaint sua sponte on grounds that it failed to state a claim upon

which relief could be granted. On appeal, this court affirmed the dismissal of

Chappell’s claims relating to the denial of visitation rights but reversed as to the

claims relating to administrative segregation. See Chappell v. McKune, No. 96-

3359, 1997 WL 787184, *1, *2 (10th Cir. Dec. 24, 1997) (unpublished

disposition). As to the claims relating to administrative segregation, this court

concluded that the record before the district court was not sufficiently developed

to determine whether Chappell’s lengthy stay in administrative segregation


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constituted an “atypical and significant hardship” sufficient to confer on him a

liberty interest. Id. at *2. Accordingly, this court remanded to the district court

for further proceedings.

      On remand, the district court granted summary judgment to the defendants.

The district court concluded that Chappell’s due process claim failed because

Chappell had “failed to offer any evidence that the conditions of confinement in

administrative segregation were significantly different from ordinary prison

conditions.” The district court also rejected Chappell’s claim that the defendants

violated the Equal Protection Clause when they prosecuted him for trafficking

money in prison, while refusing to prosecute a similarly situated white prisoner.

According to the district court, “The uncontroverted evidence indicates that

defendants referred both cases to the [prosecutor] and that subsequently the

[prosecutor] only chose to prosecute [Chappell]. [Chappell] has failed to offer

any evidence that defendants were involved in the decision to prosecute, or that

defendants treated the two inmates differently.”

      This court reviews the grant of summary judgment de novo, using the same

standard as the district court. See Osgood v. State Farm Mut. Auto. Ins. Co., 848

F.2d 141, 143 (10th Cir. 1988). With that standard in mind, this court has

undertaken a close review of the parties’ briefs and contentions, the district

court’s order, and the entire record on appeal. That close review reveals no


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reversible error. Accordingly, this court affirms the district court’s grant of

summary judgment in favor of the defendants for substantially those reasons set

out in the district court’s order dated May 26, 1999. Furthermore, because the

procedural history of this case demonstrates that Chappell was able to present his

case sufficiently to both the district court and this court, the district court did not

abuse its discretion in denying Chappell’s request for appointment of counsel.

See Miller v. Glanz, 948 F.2d 1562, 1572 (10th Cir. 1991) (holding that the

decision whether to appoint counsel is within district court’s sound discretion).

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

is hereby AFFIRMED.

                                                 ENTERED FOR THE COURT:



                                                 Michael R. Murphy
                                                 Circuit Judge




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