                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2006

Franco v. Bur Prisons
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2783




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Recommended Citation
"Franco v. Bur Prisons" (2006). 2006 Decisions. Paper 116.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/116


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                                                              CLD-35
                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     No. 06-2783
                                   ______________

                                 CARLOS FRANCO,
                                        Appellant,

                                           v.

                           BUREAU OF PRISONS (B.O.P.)
                           __________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                             (D.C. Civil No. 05-cv-05077)
                      District Judge: Honorable Robert B. Kugler
                         _____________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  November 2, 2006

               Before: RENDELL, SMITH and COWEN, Circuit Judges

                               (Filed: December 7, 2006)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

PER CURIAM

      Appellant, Carlos Franco, appeals from the District Court’s dismissal under 28

U.S.C. § 1915(e)(2) of his motion for a writ of mandamus under 28 U.S.C. § 1361

seeking to compel the Bureau of Prisons to transfer him from New Jersey to California.

      We exercise jurisdiction pursuant to 28 U.S.C. § 1291, reviewing the District
Court’s mandamus decision for abuse of discretion, except for any non-discretionary

elements, which are subject to de novo review. Stehney v. Perry, 101 F.3d 925, 929 (3d

Cir. 1996). We note that “[m]andamus is an extraordinary remedy that can only be

granted where a legal duty ‘is positively commanded and so plainly prescribed as to be

free from doubt.’” Appalachian States Low-Level Radioactive Waste Com’n v. O’Leary,

93 F.3d 103, 112 n.9 (3d Cir. 1996) (quoting Harmon Cove Condominium Ass’n, Inc. v.

Marsh, 815 F.2d 949, 951 (3d Cir. 1987)).

       Here, the District Court was clearly correct in dismissing Franco’s petition.

Prisoners do not have a constitutionally protected liberty interest under the Due Process

Clause in either the place of their confinement or in prison transfers. See Olim v.

Wakinekona, 461 U.S. 238, 245-48 (1983). Equally meritless is Franco’s claim that the

Bureau of Prisons transfer policy violates the Equal Protection Clause. The “nearer to

release” transfer guidelines that he challenges do not result in aliens as a group being

treated differently from other persons. Rather, as the District Court explained, the policy

distinguishes between prisoners subject to INS Detainers or other custodial considerations

and those who are not. Cf. McLean v. Crabtree, 173 F.3d 1176, 1185-86 (9th Cir. 1999).

The District Court properly applied rational basis review and rejected Franco’s Equal

Protection challenge.

       Because this appeal lacks arguable merit, we will dismiss it under 28 U.S.C.

§ 1915(e)(2)(B).



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