                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           DEC 14 2000
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    ALDEN LAMONT MOORE,

                  Plaintiff-Appellant,

    v.                                                    No. 00-1109
                                                    (D.C. No. 98-WM-2321)
    MICHAEL COOKSEY, MICHAEL                               (D. Colo.)
    PUGH, G.L. HERSHBERGER,
    and L.R. KOWALSKI,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before BRORBY , KELLY , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Plaintiff Alden Lamont Moore, a federal prisoner, appeals the dismissal

of his pro se complaint filed under      Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics       , 403 U.S. 388 (1971), and the Rehabilitation Act,

29 U.S.C. § 794(a). We affirm.

       Moore was transferred from a prison in Lompoc, California, to the control

unit in the Administrative Maximum facility (ADX) at Florence, Colorado, after

he stabbed another inmate with an ice pick-type weapon. In his complaint, Moore

claimed that the transfer to ADX, the conditions of confinement there, and the

ADX medical treatment for his AIDS-related symptoms violate his rights under

the Constitution and the Rehabilitation Act. Specifically, he asserted that he was

transferred to ADX because of his HIV-positive status, that his access to showers

at ADX was limited based on discriminatory motives, and that medical care

providers at ADX improperly concluded that his needs could be met at that

facility. Moore sought money damages and an injunction requiring his transfer to

a facility that houses a general population of HIV-positive prisoners.

       Upon defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted, the matter was referred

to a magistrate judge. As to Moore’s claims for damages under the Rehabilitation

Act, the magistrate judge recommended dismissal because none of the named

defendants are subject to personal liability for damages,     R., Vol. 2, Doc. 16 at 5


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(citing Hiler v. Brown , 177 F.3d 542, 545-46 (6th Cir. 1999) (stating that the

Rehabilitation Act does not permit actions against persons in their individual

capacities)). Furthermore, the magistrate judge concluded that the Bureau of

Prisons and its director are shielded by sovereign immunity. R., Vol. 2, Doc. 16

at 6 (citing Lane v. Pena , 518 U.S. 187, 197, 200 (1996)). Finally, Moore

failed to allege facts demonstrating that his treatment was due to his disability.

R., Vol. 2, Doc. 16 at 10-12 (citing Randolph v. Rodgers , 170 F.3d 850, 858

(8th Cir. 1999) (setting out elements of a prima facie case under the

Rehabilitation Act)).

        Concerning Moore’s constitutional claims, the magistrate judge determined

that:

        (1) Conditions in ADX are within “‘the range of confinement to be

normally expected for one serving’” a federal prison sentence and therefore the

transfer to ADX did not involve an interest protected by the Due Process Clause.

R., Vol. 2, Doc. 16 at 7 (quoting Sandin v. Conner , 515 U.S. 472, 487 (1995));

see also Meachum v. Fano , 427 U.S. 215, 225 (1976) (explaining that the Due

Process Clause does not protect a prisoner against transfer to a more restrictive

prison);

        (2) Moore’s allegations of disparate treatment did not support an equal

protection claim. R., Vol. 2, Doc. 16 at 7-8 (citing,   e.g. , Romer v. Evans ,


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517 U.S. 620, 631 (1996) (stating that a classification which bears a “rational

relation to some legitimate end” generally complies with the Equal Protection

Clause)); and

       (3) Moore’s disagreement with practitioners as to appropriate medical

treatment was not actionable as a constitutional claim because Moore did not

exhaust his available administrative remedies, R., Vol. 2, Doc. 16 at 9-10

(citing 42 U.S.C. § 1997e(a)), and failed to allege facts showing that defendants

acted with deliberate indifference to his serious medical needs, R., Vol. 2 at 13-15

(citing Estelle v. Gamble , 429 U.S. 97, 104 (1976)).

       The magistrate judge therefore recommended dismissal of Moore’s claims

for damages and denial of his requests for injunctive relief. After considering

Moore’s objections, the district court adopted the magistrate judge’s

recommendation and dismissed the case. On appeal, Moore challenges the

dismissal. Additionally, he     contests the magistrate judge’s denial of his request

for appointment of counsel and refusal to conduct an investigation into alleged

malpractice on the part of a government attorney.

       This court reviews de novo a dismissal under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim, accepting the facts pleaded as true.   See Sutton v.

Utah State Sch. for the Deaf & Blind      , 173 F.3d 1226, 1236 (10th Cir. 1999).

A Rule 12(b)(6) dismissal is upheld only if it appears “beyond doubt that the


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plaintiff can prove no set of facts in support of his claim which would entitle

him to relief.”   Id. (quotation omitted). After a careful review of the record,

we conclude that the district court correctly determined that Moore’s allegations

are insufficient to impose liability under the Rehabilitation Act or demonstrate

violations of Moore’s constitutional rights.

       Concerning the denial of appointment of counsel in a civil case, we

review the district’s court determination for an abuse of discretion.   Rucks v.

Boergermann , 57 F.3d 978, 979 (10th Cir. 1995). In considering whether to

appoint counsel, the factors the district court should take into account include

“‘the merits of the litigant’s claims, the nature of the factual issues raised in the

claims, the litigant’s ability to present his claims, and the complexity of the legal

issues raised by the claims.’”   Id. (quoting Williams v. Meese , 926 F.2d 994, 996

(10th Cir. 1991)). Because Moore’s claims lack merit, there was no abuse of

discretion in denying the motion to appoint counsel. Furthermore, we find no

error in the refusal to investigate alleged malpractice on the part of government

counsel.




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      The judgment of the district court is AFFIRMED for substantially the

reasons stated in the Recommendation of United States Magistrate Judge filed

February 11, 2000.

                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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