                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 8 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 COREY MAURICE TREADWELL,

          Plaintiff - Appellant,
 v.                                                    No. 01-1366
                                                    (D.C. No. 01-Z-449)
 BUREAU OF PRISONS, Washington,                          (D. Colo.)
 D.C.; R. E. HOLT, Warden, USP-FLR;
 PAUL LAIRD, AW of Operations,
 USP-FLR; RUSSELL A. PERDUE,
 Former B/C unit manager; Seagoville,
 TX; K. KISSINGER, Former B/C unit
 manager; C. DE’HERRERA, Former
 case manager, central office,
 Washington, D.C.; M. L. MENDEZ,
 Current case manager, USP-FLR;
 RICHARD L. HUFF, Co-Director,
 Freedom of Information Appeal,
 Wash. D.C.; FOSTER-JOHNSON,
 Current Case Manager Coordinator,
 USP-FLR; G. L. HERSHBERGER,
 Regional Director, K.C.,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Corey Treadwell, a federal prisoner proceeding pro se, brought claims

under the Privacy Act and Freedom of Information Act against the Bureau of

Prisons (BOP) for alleged violations arising from his incarceration at the United

States Penitentiary in Florence, Colorado. The district court dismissed these

claims as frivolous under 28 U.S.C. § 1915A(b) and Mr. Treadwell seeks to

appeal.

       We deny leave to proceed in forma pauperis and dismiss this appeal on the

ground that it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). This

dismissal counts as a “prior occasion” or “strike” for the purposes of the “three

strikes” provision of the Prison Litigation Reform Act (PLRA), as set forth in 28

U.S.C. § 1915(g). We note that Mr. Treadwell has at least one other “prior

occasion” or “strike” under § 1915(g) in a companion appeal. Treadwell v. Holt,

No. 01-1368 (10th Cir. Mar. 8, 2002). This court has assessed partial payments

on the appellate filing fee; with our denial of leave to proceed in forma pauperis

Mr. Treadwell is responsible for the immediate payment of the unpaid balance

due.


       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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       Mr. Treadwell argues that prison officials erroneously based his

classification in part on a nonviolent 1987 juvenile robbery offense. He claims

that consequently, he was placed in a higher security facility than was warranted

and that, were he to be correctly reclassified, prison officials would transfer him

to a facility with lesser security.

       This court construes pro se complaints liberally. Hunt v. Uphoff, 199 F.3d

1220, 1223 (10th Cir. 1999). We extend this liberal construction principle to pro

se appellate filings as well. See Cummings v. Evans, 161 F.3d 610, 613 (10th

Cir. 1998), cert. denied 526 U.S. 1052 (1999). While this court has not yet

determined whether a dismissal pursuant to § 1915A on the ground that the

complaint is legally frivolous is reviewed de novo or for an abuse of discretion,

Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000), our result would be the

same under either standard.

       Mr. Treadwell brings these claims pursuant to the Privacy Act, though he

apparently also alleges that they violate his constitutional rights. Mr. Treadwell

additionally asserts a Freedom of Information Act claim, which the district court

properly dismissed because it did not involve the BOP, the only agency named as

a defendant.

       Pursuant to 28 U.S.C. § 1915A(b), the district court is required to review

complaints from prisoners seeking redress from officers or employees of a


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governmental entity and to dismiss the complaint, or any portion thereof, that is

legally frivolous. The district court determined that his claim was frivolous. We

agree.

         First, a successful claim against an administrative agency under the Privacy

Act requires an allegation that the agency failed to maintain accurate records,

leading to a determination adverse to the plaintiff. 5 U.S.C. § 552a(g)(1)(C).

Treadwell agrees that he was convicted of robbery in 1987 as a juvenile and that

the conviction accurately appears on his record. He disagrees with the way the

BOP uses the information in his record, not the accuracy of the record itself.

Therefore, even if the BOP improperly used this information, that do not amount

to a violation of the Privacy Act and his claim was rightfully dismissed.

         Furthermore, insofar as these claims can be classified as constitutional

claims, the allegedly mistaken classification and placement of Treadwell do not

implicate a liberty interest created under the Constitution because prisoners are

not entitled to any particular degree of liberty. Templeman v. Gunter, 16 F.3d

367, 369 (10th Cir. 1994). Nor does Treadwell’s classification or placement

impose any atypical or significant hardship upon him in relation to the ordinary

incidents of prison life, Sandin v. Conner, 515 U.S. 472, 480 (1995), or threaten

to lengthen his term of confinement, id. at 487. Rather, it the type of decision

best left to the discretion of prison officials. Meachum v. Fano, 427 U.S. 215,


                                           -4-
228-29 (1976). The district court properly dismissed this claim as

frivolous pursuant to 28 U.S.C. § 1915A(b).

      Mr. Treadwell sought leave from the district court to proceed in forma

pauperis on appeal, but the district court denied his request pursuant to 28 U.S.C.

§ 1915(a)(3). Because Mr. Treadwell’s appeal fails to present a “reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.1991), we DENY

him leave to proceed on appeal in forma pauperis, order him to render immediate

payment of the unpaid balance due on the filing fee, and DISMISS the appeal.

This dismissal counts as a “prior occasion” or “strike” for the purposes of the

“three strikes” provision of the PLRA.



                                         Entered for the Court

                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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