                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                           FEB 27 1997
                           TENTH CIRCUIT
                                                      PATRICK FISHER
                                                                Clerk


SCOTT DUFFY,

         Plaintiff-Appellant,

v.
                                            No.96-8017
                                        (Dist. of Wyoming)
JUDITH UPHOFF, DUANE
                                       (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




RICHARD DOWDELL,

         Plaintiff-Appellant,

v.
                                           No. 96-8018
                                        (Dist. of Wyoming)
JUDITH UPHOFF, DUANE
                                       (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.
CLARENCE FISHER,

         Plaintiff-Appellant,

v.                                          No.96-8019
                                        (Dist. of Wyoming)
JUDITH UPHOFF, DUANE                   (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




FRANK GARCIA,

         Plaintiff-Appellant,

v.                                         No. 96-8020
                                        (Dist. of Wyoming)
JUDITH UPHOFF, DUANE                   (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




                                 -2-
ALEX VOGEL,

         Plaintiff-Appellant,

v.                                         No. 96-8021
                                        (Dist. of Wyoming)
JUDITH UPHOFF, DUANE                   (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




TERRY HUGHES,

         Plaintiff-Appellant,

v.                                         No. 96-8022
                                        (Dist. of Wyoming)
JUDITH UPHOFF, DUANE                   (D.C. No. 94-CV-278)
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




                                 -3-
DONALD GEE,

         Plaintiff-Appellant,              No. 96-8023
                                        (Dist. of Wyoming)
v.                                     (D.C. No. 94-CV-278)

JUDITH UPHOFF, DUANE
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




DAVID HARTLEY,

         Plaintiff-Appellant,              No. 96-8024
                                        (Dist. of Wyoming)
v.                                     (D.C. No. 94-CV-278)

JUDITH UPHOFF, DUANE
SHILLINGER, JAMES FERGUSON,
RONALD RUETTGERS, STANLEY
JAMES and MARYJANE RULE,

         Defendants-Appellees.




                                 -4-
                          ORDER AND JUDGMENT *


Before, SEYMOUR, PORFILIO, and MURPHY, 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 cause is

therefore ordered submitted without oral argument.

      Scott Duffy, Richard Dowdell, Clarence Fisher, Frank Garcia, Alex Vogel,

Terry Hughes, Donald Gee, and David Hartley (hereinafter “the Appellants”),

appeal from the district court’s dismissal of their pro se 42 U.S.C. § 1983

complaints as frivolous under 28 U.S.C. § 1915(d) (1994). 1 This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.




      *
       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.
      1
        Because the Appellants filed their notices of appeal on March 1, 1996,
prior to the enactment of the Prison Litigation Reform Act, Pub. L. No. 104-134,
110 Stat. 1321 (Apr. 26, 1996), the Act’s amendments to 28 U.S.C. § 1915 do not
apply here. White v. Gregory , 87 F.3d 429, 430 (10th Cir.),  cert. denied , 1996
WL 604229 (U.S. Dec. 2, 1996) (No. 96-6330).

                                        -5-
      The Appellants brought this suit in the United States District Court for the

District of Wyoming alleging that certain officers of the Wyoming State Prison

had violated the Appellants’ rights to substantive and procedural due process,

equal protection, and freedom from cruel and unusual punishment. According to

the Appellants, the prison officials had arbitrarily and capriciously placed the

Appellants in administrative segregation in an effort to “break[] their spirit.” The

district court dismissed the complaint as frivolous under section 1915(d), finding

as follows: (1) the due process clause does not confer a liberty interest in

placement within the general prison population; (2) Appellants had not identified

an applicable state law creating such an interest; (3) Appellants’ equal protection

claim was conclusory and, therefore, did not state a claim; and (4) the conduct

complained of, even if proved, did not state a claim under the Eighth Amendment.

On appeal, Appellants contend that the due process clause does indeed create a

substantive right to remain within the general prison population. 2




      2
        Appellants assert that their “claim here is primarily that of a violation of
substantive due process.” They also contend in passing, however, that “their
placement in segregation violated their rights to procedural due process, equal
protection and their right to be free from cruel and unusual punishment.”
Nevertheless, the Appellants have not provided any independent analysis or
briefing of those claims. Accordingly, Appellants have waived consideration of
these issues on appeal. United States v. Hardwell , 80 F.3d 1471, 1492 (10th Cir.
1996) (holding that defendant waived consideration of issue on appeal by “failing
to make any argument or cite any authority to support his assertion.”).

                                          -6-
      A district court may dismiss an in forma pauperis complaint if it determines

that the action is frivolous. 28 U.S.C. § 1915(d) (1994). A complaint is frivolous

when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). That is to say, a complaint is frivolous if it is based on

an “indisputably meritless legal theory” or on “clearly baseless” facts. Id. at 327.

On appeal, construing pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519,

520 (1972); Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir. 1995), this court

reviews a section 1915(d) dismissal for abuse of discretion. Denton v.

Hernandez, 504 U.S. 25, 33 (1992); Green v. Seymour, 59 F.3d 1073, 1077 (10th

Cir. 1995).

      We conclude that the district court abused its discretion in dismissing

Appellants’ complaint as frivolous. Although this Circuit has yet to address the

issue, at least two other courts have recognized the existence of a substantive due

process claim post-Sandin v. Connor, 115 S. Ct. 2293 (1995). See Birdo v. Smith,

No. 95-5970, 1996 WL 465031, at *4 (6th Cir. Aug. 13, 1996); Smith v.

McCaughtry, Nos. 94-2743, 94-2930, and 95-2609, 1996 WL 137869, at *4-5 (7th

Cir. Mar 19, 1996). Accordingly, this court is not prepared to say that the

Appellants’ substantive due process claims are based on an “indisputedly

meritless legal theory.”




                                         -7-
      Despite our conclusion that Appellants’ complaint is not frivolous, we

nevertheless affirm. Assuming, without deciding, that the substantive component

of the Due Process Clause protects prisoners against arbitrary changes in their

prison classifications, it is clear that the Appellants have not alleged facts rising

to the high standard necessary to state such a claim. Williams v. City & County of

Denver, 99 F.3d 1009, 1015 (10th Cir. 1996) (holding that plaintiff asserting

substantive due process violation must assert egregious and outrageous conduct

that is so fraught with unreasonable risk as to shock the conscience). We have

reviewed in detail the acts alleged by the appellants and find neither the length of

incarceration nor the conditions of administrative segregation sufficient to shock

the conscience. 3

      Because Appellants’ claims are not indisputedly meritless, we hereby

GRANT their motion to proceed in forma pauperis on appeal. The judgment of




      3
        We note that Appellants do not contend that an existing state regulation
creates a liberty interest in remaining in the general prison population. Even if
Appellants had identified such a regulation, it is far from clear that such a
regulation would create a liberty interest in light of the recent decision in    Sandin
v. Conner , 115 S. Ct. 2293 (1995). Although         Sandin recognized that prison
regulations could potentially create a liberty interest protected by the Due Process
Clause, it held that these interests are generally limited to freedom from restraint
that “imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”     Id. at 2300. Furthermore, confinement in
administrative segregation is not the type of “atypical, significant deprivation” in
which a liberty interest might be created.       Id. at 2301.

                                          -8-
the United States District Court for the District of Wyoming dismissing

Appellants’ complaint is hereby AFFIRMED.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




                                        -9-
