     10-1678-pr
     McMahon v. Fischer

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Michael McMahon,
14                Plaintiff-Appellant,
15
16                    -v.-                                               10-1678-pr
17
18       Brian Fischer, et al.,
19                Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Michael McMahon, pro se,
23                                             Stormville, NY.
24
25       FOR APPELLEES:                        Oren L. Zeve, Managing-
26                                             Administrative Assistant
27                                             Solicitor General, New York, NY.
28



                                                  1
1        Appeal from a judgment of the United States District

2    Court for the Southern District of New York (Preska, C.J.).

3

4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

5    AND DECREED that the District Court’s judgment is AFFIRMED.

6

7        Appellant Michael McMahon, pro se, appeals the District

8    Court’s sua sponte dismissal of his 42 U.S.C. § 1983

9    complaint for failure to state a claim pursuant to 28 U.S.C.

10   § 1915(e)(2).   We assume the parties’ familiarity with the

11   underlying facts, the procedural history of the case, and

12   the issues on appeal.1

13       In a nutshell, McMahon complains that he was kept in a

14   double-bunk cell for 63 days at one prison facility, and

15   then transferred to another facility at which he continued

16   to be double-bunked, notwithstanding 7 New York Code of

17   Rules & Regulations § 1701.7, which limits such

18   accommodation to 60 days absent the inmate’s consent, and a

19   Directive of the Department of Corrections to the same

20   effect.




         1
           The named Defendants-Appellees were not served below
     and have indicated that, as a result, a brief will not be
     filed in this appeal.
                                   2
1        We review de novo a district court’s dismissal of a

2    complaint pursuant to Section 1915(e)(2).     See Giano v.

3    Goord, 250 F.3d 146, 150 (2d Cir. 2001).     The complaint must

4    plead “enough facts to state a claim to relief that is

5    plausible on its face.”     Bell Atlantic Corp. v. Twombly, 550

6    U.S. 544, 570 (2007).     Although all factual allegations

7    contained in the complaint are assumed to be true, this

8    tenet is “inapplicable to legal conclusions.”     Ashcroft v.

9    Iqbal, 129 S. Ct. 1937, 1949 (2009).     We construe pro se

10   complaints liberally.     See Shomo v. City of New York, 579

11   F.3d 176, 183 (2d Cir. 2009); Harris v. Mills, 572 F.3d 66,

12   71-72 (2d Cir. 2009).

13   [1] The District Court’s dismissal of Appellant’s First

14   Amendment retaliation claim, which alleged that the transfer

15   was on account of his protest of continued double-bunking,

16   is affirmed for substantially the same reasons as those

17   articulated by the District Court in its March 22, 2010

18   order.

19   [2] We likewise affirm the dismissal of McMahon’s claim

20   that double-bunking is unconstitutional.     Double-bunking is

21   not unconstitutional per se, see Rhodes v. Chapman, 452 U.S.

22   337, 347-50 (1981), and McMahon’s claim is not premised on

23   some consequence or ramification of double-bunking that


                                     3
1    might amount to the deprivation of a constitutional right.

2    See, e.g., id. (observing that the double-bunking in that

3    case “did not lead to deprivations of essential food,

4    medical care, or sanitation,” and did not “increase violence

5    among inmates or create other conditions intolerable for

6    prison confinement”).

7    [3] As to the dismissal of McMahon’s procedural due process

8    claim, he had to show (1) the existence of a

9    constitutionally protected liberty or property interest and

10   (2) an entitlement to process before being deprived of that

11   interest.   See Perry v. McDonald, 280 F.3d 159, 173 (2d Cir.

12   2001).

13       “A liberty interest may arise from the Constitution

14   itself . . . or . . . from an expectation or interest

15   created by state laws or policies.”   Wilkinson v. Austin,

16   545 U.S. 209, 221 (2005) (internal citations omitted); see

17   also Sandin v. Conner, 515 U.S. 472, 479-81 (1995).     In

18   order to demonstrate a state-created liberty interest, a

19   prisoner must show that “‘state statutes or regulations

20   require, in language of an unmistakably mandatory character,

21   that a prisoner may not suffer a particular deprivation

22   absent specified predicates.’” Burgos Vega v. Lantz, 596

23   F.3d 77, 83 (2d Cir. 2010) (quoting Welch v. Bartlett, 196



                                   4
1    F.3d 389, 392 (2d Cir. 1999)).     The Regulation on which

2    McMahon relies provides, inter alia, that

3        [n]o inmate shall be confined in a double-cell for a

4        period of more than 60 days unless such inmate

5        volunteers to remain in the double-cell for a longer

6        period of time.   At the expiration of the 60 days, if

7        an inmate does not volunteer to remain in a double-

8        cell, the inmate shall be moved to a single-cell or

9        multiple occupancy housing at either his current

10       facility or a new facility.

11   7 N.Y.C.R.R. § 1701.7(d).    However, that Regulation, along

12   with the Directive on which McMahon relies, implements N.Y.

13   Correct. L. § 137(4) (McKinney 2011), which provides that

14   each inmate be given sleeping accommodations in a separate

15   cell “[w]henever there shall be a sufficient number of cells

16   . . . .”

17       Even if we were to assume arguendo that these texts are

18   “unmistakably mandatory [in] character,” McMahon could not

19   win because he fails to show that double-bunking “subject[s]

20   the prisoner to ‘atypical and significant hardship . . . in

21   relation to the ordinary incidents of prison life,’”     Burgos

22   Vega, 596 F.3d at 83 (quoting Sandin, 515 U.S. at 484)

23   (omission in original)).    Nor can McMahon state a procedural

24   due process claim based on the transfer from one prison to

                                    5
1    another.   A prisoner has no right to housing in a particular

2    facility and no right to process regarding a transfer to

3    another facility under these circumstances.    See Matiyn v.

4    Henderson, 841 F.2d 31, 34 (2d Cir. 1988).

5

6        We have considered all of McMahon’s additional

7    arguments and find them to be without merit.   Accordingly,

8    the judgment of the District Court is AFFIRMED.

 9
10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13




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