                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 24 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 RODOLFO RIVERA,

               Plaintiff-Appellant,              Nos. 03-1232 and 03-1272
          v.                                           (D. Colorado)
 ANGELA HASSLER, Officer,                           (D.C. No. 03-Z-185)
 Arrowhead Correctional Facility
 Housing Officer; CYNTHIA POOL,
 Officer, Arrowhead Correctional
 Facility Security Officer; CONNIE
 NORRIS, Arrowhead Correctional
 Facility Librarian,

               Defendants-Appellees.




                           ORDER AND JUDGMENT *



Before EBEL, HENRY, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See Fed. R.




      *
        This order and judgment is not binding precedent, except under the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.
App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument.

         Rodolfo Rivera, formerly a state prisoner at the Fremont Correctional

Facility in Canon City, Colorado, appeals the district court’s sua sponte dismissal

of his complaint filed pursuant to 42 U.S.C. § 1983. Mr. Rivera claims that as a

result of defendants’ actions, he suffered harm at the hands of his co-inmates and

through reclassification to a higher security level. The district court dismissed his

claims as frivolous under 28 U.S.C. § 1915A(b)(1).

                                   I. DISCUSSION

         In Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000), we noted this

Court had not yet determined whether a dismissal pursuant to § 1915A on the

ground that the complaint is legally frivolous is reviewed de novo or for abuse of

discretion. We “need not resolve that question at this juncture, however, because

our review of the entire record in this case . . . reveals no hint of reversible error

under either standard.” Id. For the reasons stated below, we affirm the district

court’s dismissal of all of Mr. Rivera’s claims, but we note that as to three of the

four claims, we affirm the dismissal on the basis that Mr. Rivera has failed to

state a claim for which relief can be granted, rather than for filing a frivolous

claim.




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      In his complaint, Mr. Rivera asserted the following claims arising from his

incarceration at the Arrowhead Correctional Facility:

      (1) In violation of his Eighth and Fourteenth Amendment rights, Defendant

Officer Angela Hassler harassed him, teased him, singled him out, and falsely

reported him for stalking her. As a result of these comments, he was harassed by

co-inmates as a homosexual. The district court rejected this claim, noting that

verbal abuse cannot state a constitutional deprivation. In addition, the court noted

that transfer to a higher security facility does not subject Mr. Rivera to a

significant and atypical hardship. We agree.

      The alleged verbal abuse, if true, is deplorable and unprofessional.

Although we can imagine situations where verbal abuse might amount to the level

of cruel and unusual punishment, we do not believe this case presents such a

situation. Cf. Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (holding

sheriff’s threat to hang prisoner following prisoner’s request to mail some legal

correspondence did not amount to cruel and unusual punishment). As to Mr.

Hassler’s Fourteenth Amendment claim, we note that in the prison context, the

due process clause “affords . . . no greater protection” to a prisoner than does the

Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). Thus, our

conclusion that Ms. Hassler’s conduct did not amount to cruel and unusual

punishment properly disposes of Mr. Rivera’s due process claim as well. We hold



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that the appellant’s complaint has failed to state a claim under § 1983, but we do

not hold that the claim was frivolous.

      (2) Defendant Connie Norris, the prison librarian, retaliated against Mr.

Rivera by denying him access to legal materials, specifically the use of a

typewriter. The district court noted that inmates do not have an absolute right to

use a typewriter in connection with the right of access to the courts. We agree

that this claim is frivolous. Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir. 1978)

(“Access to the courts does not include a federally protected right to use a

typewriter.”).

      (3) On October 19, 2001, Officer Pool allegedly singled him out by

suggesting he “think twice” about sitting in a particular location. Rec. doc. 1, att.

6. He then got up and moved tables. In his appellate brief he states that Officer

Pool “ordered” him to move tables, thus precluding him from engaging in

Fellowship with the Praise and Worship team during dinner. Aplt’s Br. at 6. On

appeal Mr. Rivera suggests that these actions violated his First Amendment right

to the free exercise of religion and served as retaliation for his previous reporting

of Officer Hassler, in violation of his Eighth and Fourteenth Amendment rights.

Mr. Rivera gives no indication of how his moving dinner tables violated his free

exercise of religion and supplies only conclusory allegations. Mr. Rivera has

failed to state a claim as to a violation of § 1983.



                                           -4-
      (4) Mr. Rivera also contends that all of the defendants falsely accused him

of being a stalker, which resulted in his transfer to another facility, his placement

in a higher security unit, and his categorization as a candidate for participation in

sex offender treatment when he was transferred to the Fremont Correctional

Facility. When he was transferred, he was evaluated as a sex offender, but

notably not categorized as one. The facility also recommended he participate in

the sexual offender treatment program.

      Mr. Rivera alleges no “specific facts showing retaliation because of the

exercise of [his] constitutional rights,” Peterson v. Shanks, 149 F.3d 1140, 1144

(10th Cir. 1998) (internal quotation marks omitted). 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) (internal

citation omitted)); see also Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.

1994) (holding that Colorado prison regulations do not create a liberty interest in

an inmate’s prison placement classification). We affirm the dismissal of this

claim for failure to state a claim.



                                           -5-
                                 II. CONCLUSION

      Accordingly, we AFFIRM the district court’s dismissal of Mr. Rivera’s

complaint under § 1915A(b)(1) for failure to state a claim on claims (1), (3), and

(4), and for frivolousness for claim (2).



                                                  Entered for the Court,




                                                  Robert H. Henry
                                                  Circuit Judge




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