                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              SEP 19 2000
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 TIMOTHY LYNN BARKUS,

          Plaintiff-Appellant,

 v.                                                              No. 00-7044
                                                                  (E.D. Okla.)
 STEPHEN W. KAISER, Warden; CHARLES                        (D.Ct. No. 98-CV-510-S)
 BREWER, Unit Manager of Unit A-South D.C.F.;
 TAYLOR CHANCELLOR, Chief of Security;
 JANET BRYANT, Unit Manager of Unit C North;
 SADA JONES, Case Manager; KING, Officer,
 Property Officer at Davis Correctional Facility;
 JOHNSON, Chief of Security at Davis
 Correctional Facility,

          Defendants-Appellees.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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          This order and judgment is not binding precedent except under the doctrines of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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Timothy L. Barkus, an inmate appearing pro se, appeals the

district court’s decision dismissing his civil rights complaint filed under 42

U.S.C. § 1983. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.



      In his civil rights complaint, Mr. Barkus alleged his thirty-three day

placement in a restrictive housing unit, known as a “Phase Program,” constituted

disciplinary segregation, subjecting him to double jeopardy and denial of due

process and equal protection in violation of the United States and Oklahoma

Constitutions. Mr. Barkus also alleged his placement in the Phase Program

violated Oklahoma Department of Corrections’ rules and regulations.



      In addressing the allegations in Mr. Barkus’ complaint, the district court

noted both the State’s Martinez report and supporting affidavit showed the Phase

Program is used as part of a behavior modification program and does not

constitute punishment or disciplinary segregation. The Martinez report and

supporting affidavit further stated the Phase Program “was created for the safety

of both the prison officials and the inmates in the general population who do


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choose to abide by [the] rules.” The district court determined Mr. Barkus failed

to demonstrate his placement in this program, especially when limited to thirty-

three days, was atypical of the ordinary incidents of prison life. Specifically, the

district court concluded Mr. Barkus possessed no constitutional right to

incarceration in any particular prison or portion of a prison, and that the “vague

and conclusory” allegations in his complaint did not establish a protected liberty

interest. The district court dismissed Mr. Barkus’ complaint as frivolous under 28

U.S.C. § 1915(e), determining it was without merit because it lacked an arguable

basis either in law or fact.



      On appeal, Mr. Barkus raises the same issues addressed by the district

court. In so doing, Mr. Barkus contends the district court erred in: 1) stating his

allegations were vague and conclusory; and 2) relying on information in the

Martinez report, instead of holding an evidentiary hearing. Mr. Barkus also

continues to allege his placement in the Phase Program amounted to a form of

severe and restrictive discipline or punishment “far from what is considered

normal for the rest of the inmate population.” Mr. Barkus also asserts for the first

time on appeal that officials of the private prison where he is incarcerated

violated their contract with the state when they placed him in the Phase Program.




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      We review the district court’s dismissal of Mr. Barkus’ complaint as

frivolous under § 1915(e)(2)(B)(i) for an abuse of discretion. See McWilliams v.

Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997). While we construe Mr.

Barkus’ pro se pleadings liberally, see Durre v. Dempsey, 869 F.2d 543, 545

(10th Cir. 1989), we generally will not consider issues raised for the first time on

appeal, In re Walker, 959 F.2d 894, 896 (10th Cir. 1992), or conclusory and

unsupported § 1983 allegations. See Durre, 869 F.2d at 545.



      Applying this standard, and giving Mr. Barkus’ pro se allegations a liberal

construction, we hold the district court did not abuse its discretion in concluding

Mr. Barkus’ civil rights complaint is frivolous. Clearly, the allegations in his

civil rights complaint are generally vague and conclusory with no arguable basis

for relief in either law or fact. See Abbott v. McCotter, 13 F.3d 1439, 1440 (10th

Cir. 1994). The only fact-specific allegations in Mr. Barkus’ sworn complaint

indicate inmates in Phase I of the Phase program are only allowed to watch

television for one hour five nights a week, and are restrained by handcuffs, belly

chains and shackles before being taken to watch television and to the shower.

We find these allegations insufficient to establish a constitutional violation,

especially in light of the fact Mr. Barkus spent only seven or eight days in the

most restrictive Phase I of the program, and a total of thirty-three days in the


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entire Phase Program. See Sandin v. Conner, 515 U.S. 472, 486 (1995)

(determining thirty days punitive isolation is not an “atypical, significant

deprivation.”); see also James v. Wiley, 125 F.3d 862, 1997 WL 606985, at *2

(10th Cir. Oct. 2, 1997) (unpublished opinion) (concluding defendant failed to

show placement in administrative segregation unit was atypical of ordinary

incidents of prison life, particularly when limited to a forty day duration); Janke

v. Price, 124 F.3d 216, 1997 WL 537962, at *2 (10th Cir. Sept. 2, 1997)

(unpublished opinion) (holding defendant’s fourteen day punitive isolation “‘did

not present the type of atypical, significant deprivation in which a state might

conceivably create a liberty interest.’”)



      Moreover, classification or placement of an inmate into administrative

segregation generally does not involve deprivation of a liberty interest. See

Bailey v. Shillinger, 828 F.2d 651, 652 (10th Cir. 1987). As we have previously

stated, “[t]he due process rights of prisoners are subject to reasonable limitation

or restriction in light of the legitimate security concerns of the institution ... , and

‘the transfer of an inmate to less amenable and more restrictive quarters for

nonpunitive reasons is well within the terms of confinement ordinarily

contemplated by a prison sentence.’” Penrod v. Zavaras, 94 F.3d 1399, 1406

(10th Cir. 1996) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983), and citing


                                            -5-
Bell v. Wolfish, 441 U.S. 520, 546-47 (1979)). In sum, Mr. Barkus fails to show

the Phase Program “imposes atypical and significant hardship on [him] in relation

to the ordinary incidents of prison life.” See Penrod, 94 F.3d at 1406 (quoting

Hewitt, 459 U.S. at 468).



       In so holding, we acknowledge a Martinez report cannot resolve material

disputed factual issues when they are in conflict with the pleadings. See Hall v.

Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). However, in this case, the

district court could rely on the Martinez report in dismissing the complaint

because Mr. Barkus made conclusory and unsworn allegations in his attempt to

controvert the report’s factual findings. 1 See Vestar v. Hudson, 216 F.3d 1086,

2000 WL 702872, at *2 (10th Cir. May 26, 2000) (unpublished opinion); Olson v.

Coleman, 993 F.2d 1551, 1993 WL 141135, at *1 (10th Cir. April 28, 1993)

(unpublished opinion). In addition to his conclusory objections to the Martinez

report, we note Mr. Barkus did submit the sworn affidavit of another inmate

placed in the restrictive housing unit who asserts he was denied items of personal



       1
          Mr. Barkus received an opportunity to respond to the Martinez Report and his
response consisted merely of assertions of perjury and deceit by the state defendants,
conclusory allegations he and others were subjected to discipline by placement in the
Phase Program, and identification of individuals he believes can controvert the facts set
forth in the report. This is insufficient to show any conflict of facts.


                                            -6-
property such as a radio or television and clothing, required to wear handcuffs,

belly chains and leg shackles when taken to the shower, and brought meals on

trays which were passed through a slot. For the same reasons we rejected similar

allegations raised in Mr. Barkus’ sworn complaint, we find this sworn affidavit

insufficient to controvert the findings in the Martinez report 2 or show Mr. Barkus

suffered treatment constituting punishment or denial of due process or equal

protection in violation of either the United States or Oklahoma Constitutions.



      While Mr. Barkus asserts the district court erred in not holding an

evidentiary hearing, we note the district court did not need to resolve any factual

dispute through the use of an evidentiary hearing because Mr. Barkus presented

conclusory allegations to support his complaint. See Robinson v. Gibson, 201

F.3d 448, 1999 WL 1009497, at *2 (10th Cir. Nov. 8, 1999) (unpublished

opinion). Finally, because we will not consider issues raised for the first time on

appeal, we decline to address Mr. Barkus’ contention officials of the private

prison where he is incarcerated violated their contract with the state when they

placed him in the Phase Program.



      2
         The Martinez report and supporting affidavit acknowledge prisoners in Phase I
of the Phase Program experience restricted privileges and freedoms for the purpose of
inducing behavior modification.


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       Thus, for substantially the same reasons articulated by the district court, we

AFFIRM the district court’s dismissal of Mr. Barkus’ complaint as frivolous

under § 1915(e)(2)(B)(i). In so doing, we consider the district court’s dismissal

of Mr. Barkus’ complaint a “strike” under 28 U.S.C. § 1915(g) to be applied

toward any of Mr. Barkus’ future filings. See Jennings v. Natrona County

Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). Section

1915(g) is the in forma pauperis statute which requires a prisoner with three

strikes to prepay the entire filing fee before federal courts may consider his or her

civil action and appeal. Id. at 778. A copy of this order shall be filed in the

records of the United States Court of Appeals for the Tenth Circuit related to

repeat frivolous filers. 3



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge




       3
         We remind Mr. Barkus the district court in this case granted his motion to
proceed in forma pauperis on appeal, payable in partial payments. We remind Mr.
Barkus of his obligation to make partial payments until the entire fee is paid.


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