                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        AUG 12 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 RODNEY ROWSEY,

           Plaintiff-Appellant,
 vs.                                                   No. 97-1382
                                                   (D.C. No. 97-D-1747)
 J.D. SWINSON; J.T. O’BRIEN; J.                          (D. Colo.)
 SHREEVE; M. TIRADO; JOHN
 McLEAD; NICK BERRY; Unknown
 Staff Implicated to Escape;
 C. DICKERSON; E. MAY; M.
 JACKSON; P. WHALEN; J. DRIVER;
 J. GRECO; R. WILEY; T. HINES;
 MR. HARRISON; MR. MURPHY;
 MR. ORDONEZ; L. HOELTZEL; L.
 JENKINS,

           Defendants-Appellees.


                              ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


       Plaintiff-Appellant Rodney Rowsey, a federal prisoner appearing pro se and

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
in forma pauperis, appeals from the district court’s dismissal of his civil rights

action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971). The district court dismissed Mr. Rowsey’s complaint and action sua

sponte pursuant to 28 U.S.C. § 1915(e)(2)(B), holding that Mr. Rowsey’s

complaint was legally frivolous and failed to state a claim upon which relief may

be granted. On appeal, Mr. Rowsey contends the district court (1) improperly

dismissed his complaint and action sua sponte under § 1915 because, having paid

the entire filing fee, he does not appear in forma pauperis; (2) improperly

dismissed his due process claim; (3) failed to construe his complaint to state a

claim under the Privacy Act pursuant to Sellers v. Bureau of Prisons, 959 F.2d

307 (D.C. Cir. 1992), and under the Equal Protection clause; and (4) erred in

failing to order discovery, a hearing, and an answer from the Defendants. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part, reverse in part,

and remand for further proceedings.

      Mr. Rowsey’s factual allegations arise from an escape plot which was

uncovered and investigated while Mr. Rowsey was incarcerated at a federal

prison. In his complaint, Mr. Rowsey asserts he was wrongly targeted as an

escape risk as a result of the investigation and was given no opportunity to clear

his name or to refute the classification by any of the Defendants. Mr. Rowsey

further alleges that the Defendants have improperly used the escape risk


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classification, which remains in his prison file, to harass him, transfer him to

other correctional facilities far from his family and remove him from favorable

job assignments.

      Upon receipt of his complaint filed August 12, 1997, the district court

granted Mr. Rowsey leave to proceed in forma pauperis and pay a partial filing

fee of $25.00. Mr. Rowsey, however, paid the entire filing fee. Thereafter, the

district court construed Mr. Rowsey’s complaint as raising a due process claim

and held that Mr. Rowsey’s interest in his prison classification or placement is not

a protected liberty interest under the Due Process Clause. Accordingly, the

district court dismissed Mr. Rowsey’s complaint as legally frivolous and for

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).

      Mr. Rowsey first argues the district court exceeded its authority in

dismissing his complaint under 28 U.S.C. § 1915, which governs in forma

pauperis proceedings, because he paid the filing fee in full and therefore did not

proceed in forma pauperis. We review the district court’s interpretation of § 1915

de novo. See State of Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir. 1995);

McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). Having filed his

complaint after April 26, 1996, the provisions of the Prison Litigation Reform

Act, P.L. No. 104-134, § 804, 110 Stat. 1321-66 (1996) (codified in part at 28

U.S.C. §§ 1915 & 1915A) govern the district court’s dismissal of Mr. Rowsey’s


                                          3
complaint. See Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996). It is

undisputed that upon Mr. Rowsey’s request, the district court granted him leave to

proceed in forma pauperis. See docket entry no. 2; I R. doc. 3 (Motion for Leave

of Court to Proceed In Forma Pauperis); I R. doc 5 at 1. Section 1915(e)(2)

provides that “[n]otwithstanding any filing fee, or any portion thereof, that may

have been paid” the district court “shall dismiss [a case brought under this

section] at any time if the court determines that . . . the action or appeal (I) is

frivolous or malicious; [or] (ii) fails to state a claim on which relief may be

granted[.]” 28 U.S.C. § 1915(e)(2)(B). The district court did not err in applying

the restrictions of § 1915 to Mr. Rowsey’s complaint.

      Further, we do not believe the district court erred in construing Mr.

Rowsey’s complaint as alleging a due process claim and dismissing that claim.

Because the district court held Mr. Rowsey’s complaint was legally frivolous and

failed to state a claim upon which relief may be granted, we review the district

court’s decision under the more stringent de novo standard of review required to

support the latter determination, see McGore, 114 F.3d at 604, and find no error.

Mr. Rowsey has no legally protected liberty interest in a particular security or job

classification, or in the location of his confinement. See Sandin v. Connor, 515

U.S. 472, 486 (1995); Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Ingram

v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986). Moreover, other than the


                                            4
“Operations Memorandum” to which Mr. Rowsey cites, which simply notifies

Bureau of Prisons personnel of the impact of the Sellers decision, Mr. Rowsey

cites to no regulation or statute which gives rise to a liberty interest under the

circumstances he alleges. Accordingly, the district court correctly held Mr.

Rowsey has not alleged a deprivation of a legally recognized liberty interest and

thus has not adequately stated a due process claim.

      Further, notwithstanding the liberal construction which we must give pro se

complaints, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), Mr.

Rowsey’s complaint cannot be read to state a claim under the Equal Protection

Clause. Mr. Rowsey does not attribute the defendants’ action or inaction to his

membership in a suspect class; nor has he alleged that the distinction upon which

the defendants relied was not reasonably related to a legitimate penological

interest. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994).

      We agree, however, that the district court should have construed Mr.

Rowsey’s complaint as alleging a claim under the Privacy Act. See 5 U.S.C.

§ 552a; Sellers, 959 F.2d 307. Mr. Rowsey’s complaint refers to the Sellers

decision in several places, and he attached to his pleading the Operations

Memorandum which discusses Sellers and directs correctional staff to “take

reasonable steps to ensure the accuracy of challenged information in an inmate’s

central file, particularly when the information challenged can be verified.” I R.


                                           5
doc 3 exh. E(1). Treating Mr. Rowsey’s factual allegations are true for purposes

of ascertaining the complaint’s sufficiency under Fed. R. Civ. P. 12(b)(6), and

assuming Mr. Rowsey is given leave to amend his pleadings to add the Bureau of

Prisons as a defendant, we believe Mr. Rowsey’s complaint can be reasonably

read to state a claim under 5 U.S.C. §§ 552a(g)(1)(C) and (g)(4), as he has alleged

adverse determinations resulting from the information with no opportunity to

respond. We express no opinion on the merits of the claim, see Hall, 935 F.2d at

1110 & n.3, including whether the information is capable of being verified, or

upon any defenses the Bureau of Prisons may raise. See 5 U.S.C. § 552a(g)(5).

      Accordingly, we AFFIRM in part and REVERSE in part the district court’s

order of dismissal and REMAND to the district court for further proceedings

consistent with this order and judgment. In light of our disposition, we need not

reach Mr. Rowsey’s remaining arguments.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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