                                                                     F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      JUL 9 1998
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                      PATRICK FISHER
                                                                         Clerk


GILBERT ANTHONY GUTIERREZ,

             Plaintiff - Appellant,                  No. 98-2081
      v.                                           D. New Mexico
JOHN SHANKS, Director of Adult              (D.C. No. CIV-98-0001-JP/LFG)
Prisons; TIM LEMASTER, Warden,
New Mexico State Penitentiary;
DAVID ARCHULETA, Associate
Warden, New Mexico State
Penitentiary; ROBERT ULIBARRI,
Administrative Segregation Director -
North Facility, New Mexico State
Penitentiary; DON HOOVER,
Classification Bureau Chief; ABE
SENA, Case Manager - North Facility,
New Mexico State Penitentiary;
JIMMY AVILA, Classification
Appeal’s Officer; MIKE MARTINEZ,
Lieutenant, New Mexico State
Penitentiary; ELMER BUSTOS,
Acting Deputy Warden, New Mexico
State Penitentiary, all in their official
and individual capacities; and
ROBERT PERRY, Secretary of
Corrections for the State of New
Mexico,

             Defendants - Appellees.
                          ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



      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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Gilbert Gutierrez appeals the district court’s dismissal of his 28 U.S.C.

§ 1983 action against officials of the Penitentiary of New Mexico and the New

Mexico Corrections Department. He contends that the district court erred in

concluding that his complaint failed to state a claim. For the reasons stated

below, we dismiss the appeal.



                                BACKGROUND

      As set forth in Gutierrez’s complaint and brief on appeal, on March 12,

1997, a confidential informant provided prison officials with information that

Gutierrez and other inmates were engaged in a power struggle. Admin.


      *
       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.

                                        -2-
Segregation Summ., Appellant’s Br., Ex. A at 2. On March 13, another

confidential informant advised that Gutierrez had been targeted for an assault. Id.

A shakedown uncovered “pieces of metal with a diagram of a prison made

weapon . . . in [an] area of the Hobby Shop [and] [t]he inmates that were

responsible for the introduction of those pieces of metal pieces were also

identified.” Id.

      In response to the above confidential information (“c.i.”), on March 13,

prison officials called Gutierrez into a meeting with the associate warden and the

segregation administrator. The officials told Gutierrez of the above allegations,

and they also indicated they had information that the power struggle was related

to illegal drug activities. Gutierrez denied involvement in any drug activities, and

he offered to sign a waiver releasing the prison from any claims in the event he

suffered any injury from other inmates. Appellant’s Br. at 2-3. The prison

officials rejected Gutierrez’s denials and request, and they placed him in

involuntary administrative segregation. Id. at 4. On March 19, Gutierrez

appeared before the Administrative Segregation Classification Committee (the

“committee”), which concluded that “c.i. meets 4 of 8 [reliability criteria], 1 but is


      1
        According to prison regulations, “[i]f the administrative segregation
classification committee relies on confidential information in making its
decisions, it shall record at least four of the following items so that the reliability
of the confidential information may be reviewed on appeal, as necessary.”
                                                                         (continued...)

                                          -3-
not substantive. Subsequent c.i. indicates c.i. not accurate and drug was not real.”

Appellant’s Br., Ex. B at 1. Accordingly, the committee recommended that

Gutierrez be returned to general population. Id. Nonetheless, on April 15, the

deputy warden rejected the committee’s recommendation and denied Gutierrez’s

return to general population. Id., Ex. G.

      On May 8, the committee again reviewed Gutierrez’s status. This time it

recommended continued segregation based on the security threat, and it also

recommended referral for a transfer out of state to another facility where

Gutierrez could be placed in general population. Id., Ex. F at 2, 4. Gutierrez was

not allowed to rebut the confidential information at the hearings. Appellant’s Br.

at 5. He attempted to challenge the information through the prison appeal

process, and his appeal was denied, based upon a restatement of the initial

confidential information. Id. at 6-8 & Ex. G. However, no misconduct reports

have been filed against Gutierrez. Id. at 16. Apparently, Gutierrez has remained




      1
        (...continued)
Appellant’s Br., Ex. H. Apparently the four items were: 1) the date the
information was received, i.e., March 12 and 13; 2) details regarding Gutierrez’s
conduct, i.e., his involvement in a power struggle; 3) the efforts to corroborate the
information, i.e. searching the hobby shop; and 4) the identity of the staff member
receiving the confidential information, (although this item is not stated in the
report, according to Appellant’s Brief, defendant Ulibarri received some of the
confidential information).

                                            -4-
in involuntary administrative segregation for over a year, through the filing of this

lawsuit and appeal.



                                   DISCUSSION

      Because the district court’s dismissal for failure to state a claim relied on

both 28 U.S.C. § 1915(e)(2) 2 and Fed. R. Civ. P. 12(b)(6), we will apply the Rule

12(b)(6) standard of review in this case. 3 This court reviews de novo the district

court’s Rule 12(b)(6) dismissal, accepting as true all well-pleaded facts, as

distinguished from conclusory allegations. See Witt v. Roadway Express, 136

F.3d 1424, 1431 (10th Cir. 1998). We will uphold the district court's dismissal

pursuant to Rule 12(b)(6) only if “it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45- 46 (1957). Since Gutierrez is proceeding pro

se, we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (per curiam).




      2
       Although Gutierrez proceeded pursuant to 28 U.S.C. § 1915 below, he has
paid his full filing fee on appeal.
      3
       Recent unpublished Orders and Judgments in this circuit have suggested a
de novo standard might also apply to the review of a district court's dismissal of a
§ 1915 case for failure to state a claim, but we have not yet published an opinion
which definitely settles the question.

                                         -5-
      Gutierrez first argues that prison officials violated his Fifth Amendment

right against self incrimination when they failed to give him a Miranda warning at

his first hearing. Even if the prison officials did fail to advise Gutierrez of his

right against self incrimination, 4 it is well-settled that the only remedy available

for a Miranda violation is the suppression of any incriminating statements.

Bennet v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976). As the Second Circuit

recently stated:

      [T]he failure to give Miranda warnings does not create liability under
      § 1983.

             Miranda warnings are a procedural safeguard rather than a
      right explicitly stated in the Fifth Amendment. The remedy for a
      Miranda violation is the exclusion from evidence of any ensuing
      self-incriminating statements. The remedy is not a § 1983 action.

Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995) (per curiam) (internal

citations omitted). Accordingly, as a matter of law, Gutierrez is not entitled to

bring a civil rights suit against prison officials for failure to give a Miranda

warning.

      Next, Gutierrez contends that prison officials violated his Fourteenth and

Fifth Amendment rights of due process. Essentially he complains that officials

failed to follow prison regulations regarding the use of information acquired from




      We need not and do not determine whether Gutierrez was entitled to such a
      4

warning.

                                          -6-
a confidential informant, and he argues that the officials’ actions were arbitrary.

In particular, he claims that the officials are retaliating against him for his refusal

to either incriminate himself or become a prison “snitch,” Appellant’s Br. at 18,

and he notes that officials have never filed a misconduct report against him and

have never permitted him to rebut the charges.

      As the district court observed, Gutierrez’s allegations fall within the

pronouncement of Sandin v. Conner, 515 U.S. 472 (1995). Sandin concerned an

inmate’s complaint that he was not allowed to present witnesses at a disciplinary

hearing which resulted in a finding of misconduct and a thirty-day punitive

segregated confinement. The Court found that the inmate’s “segregated

confinement did not present the type of atypical, significant deprivation in which

a State might conceivably create a liberty interest.” Id. at 486. Accordingly, no

constitutional due process safeguards attached. In justifying its conclusion, the

Court expressly noted that Conner’s disciplinary confinement did “not exceed

similar, but totally discretionary, confinement in either duration or degree of

restriction.” Id. Although Gutierrez’s confinement is ostensibly administrative

rather than punitive and apparently has lasted over a year, neither its discretionary




                                           -7-
aspect nor its duration distinguishes his case. Therefore, his claim fails as a

matter of law.   5



      Since Gutierrez has failed to state a claim for violation of his constitutional

rights, this appeal counts as a “prior occasion” under 28 U.S.C. § 1915(g).

DISMISSED.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




      5
        While Gutierrez does not specifically complain about the possibility of an
out of state transfer, we note in passing that under Meachum v. Fano, 427 U.S.
215, 224 (1976), an inmate generally enjoys no constitutional right to placement
in any particular penal institution.

                                         -8-
