                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        FEB 28 2005
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DAVID W. HUNTER,

               Plaintiff - Appellant,

          v.                                            No. 04-1289
                                                   (D. Ct. No. 04-Z-875)
 JOE ORTIZ, Executive Director;                          (D. Colo.)
 COMCOR, INC., Agents or employees
 of; ANITA BROWN; DEBRA
 DURAN,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Plaintiff-Appellant David W. Hunter is a state prisoner in the custody of



      *
       This order and judgment is not binding precedent, except under the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.
the Colorado Department of Corrections (“DOC”). Mr. Hunter filed this 42

U.S.C. § 1983 action against the DOC’s Executive Director, Defendant-Appellee

Joe Ortiz, and two of its agents, Defendants-Appellees Anita Brown and Debra

Duran. Mr. Hunter alleges violations of the Eighth and Fourteenth Amendments

to the United States Constitution based on his detention at the El Paso County

Jail. The District Court dismissed the complaint as frivolous. 28 U.S.C.

§ 1915(e)(2)(B)(i). Mr. Hunter timely appeals, we take jurisdiction under 28

U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      In February 2004, while residing in the DOC’s Community Corrections

Residential Program, Mr. Hunter was convicted of disciplinary charges and

sentenced to punitive segregation. As a result, Mr. Hunter was informed that he

would be sent to a correctional facility to serve his segregation sentence.

Although Mr. Hunter was ultimately transferred to a correctional facility, he was

incarcerated for over two months at the El Paso County Jail before the transfer to

a DOC correctional facility was completed.

      While residing at the El Paso County Jail, Mr. Hunter filed suit claiming

that he should not be held at the county jail. He requested relief in the form of

transfer to a DOC facility or back to community corrections as well as

compensatory damages for the violations of his constitutional rights. The


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complaint, however, did not state the legal grounds on which Mr. Hunter was

contesting his confinement in the county jail.

      Construing his pro se complaint liberally, see Haines v. Kerner, 404 U.S.

519, 520–21 (1972), the District Court interpreted Mr. Hunter’s complaint to

argue that his confinement constituted cruel and unusual punishment under the

Eighth Amendment and violated the Due Process Clause of the Fourteenth

Amendment. It concluded that Mr. Hunter’s claims were frivolous and dismissed

them pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Mr. Hunter timely appeals.

                                 II. DISCUSSION

      We review a District Court’s 28 U.S.C. § 1915(e) dismissal for abuse of

discretion. McWilliams v. Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997).

Here, the District Court dismissed Mr. Hunter’s complaint as frivolous because it

concluded that the facts alleged, even if true, fail to state a constitutional

violation. Because this determination is an issue of law, if the court erred in

making this determination, we would find that it abused its discretion. See

Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir. 2000).

      The District Court dismissed his Eighth Amendment claim because Mr.

Hunter failed to allege any specific conditions that existed at the jail that could be

considered constitutionally infirm. Mr. Hunter contends this conclusion is

erroneous. We disagree.


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      Although an Eighth Amendment violation can arise based on the conditions

of confinement, see Rhodes v. Chapman, 452 U.S. 337, 347 (1981), the conditions

must be “‘sufficiently serious,’” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.

1998) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Prison conditions are

sufficiently serious to violate the Eighth Amendment when they “deprive inmates

of the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347.

Conditions that fail to meet this high threshold, even if restrictive and harsh, “are

part of the penalty that criminal offenders pay for their offenses against society.”

Id.

      Mr. Hunter failed to allege in his complaint, however, any conditions at the

El Paso County Jail that the District Court could have reviewed to determine

whether an Eighth Amendment violation had occurred. Nonetheless, Mr. Hunter

argues on appeal that the overcrowding at the jail, the excessive noise levels, the

lack of recreation time, and the visitation restrictions create conditions that

violated the Eighth Amendment.

      Although we doubt whether these conditions are sufficient to deprive Mr.

Hunter of any of “life’s necessities,” id., we cannot consider the merits of this

argument. The District Court did not consider any of these specific Eighth

Amendment arguments because the complaint lacked any description of

conditions from which a liberal construction could have raised these arguments.


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Because these issues were not raised below, they are waived on appeal. See

Cummings v. Norton, 393 F.3d 1186, 1190–91 (10th Cir. 2005).

      Mr. Hunter also argues that his detention at the El Paso County Jail violated

his Fourteenth Amendment due process rights. Mr. Hunter alleges that when he

was sentenced to punitive segregation he was informed that he would be

transferred to a DOC correctional facility. Despite eventually being transferred to

a DOC facility, Mr. Hunter was initially transferred to the El Paso County Jail,

where he was held for over two months without being given a reason why he was

not directly moved to a DOC facility. Mr. Hunter argues that he was deprived of

due process because he was placed in the county jail without receiving a hearing

or being given a reason why he was not taken directly to a DOC facility. On

appeal, Mr. Hunter also points out that he was given no hearing before being

transferred from the county jail to the DOC facility.

      A due process violation cannot occur unless a prisoner has been deprived of

a constitutionally-protected property or liberty interest. See Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of due process

apply only to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property.”). Because a prisoner does not

have a liberty interest in being placed at one facility or another, no process was

due to Mr. Hunter when the DOC decided to initially place him at the county jail


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before moving him to the DOC facility. See Meachum v. Fano , 427 U.S. 215, 224

(1976) ; Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Similarly, no

hearing was required when Mr. Hunter was moved from jail to prison. Meachum ,

427 U.S. at 225.   Because Mr. Hunter has no liberty interest in being placed at a

DOC facility instead of a county jail, we agree with the District Court that Mr.

Hunter has failed to allege a due process violation.

      For the first time on appeal, Mr. Hunter claims that, prior to his hearing for

his disciplinary charges, his case manager at the community corrections center

told him that he would not be sent back to prison. Mr. Hunter alleges that a

different case manager, one who was unaware of this statement, handled his

hearing and ordered him sent to prison. This claim made on appeal can be

liberally construed to question the adequacy of the process given to Mr. Hunter

when he was initially transferred out of community corrections. Nevertheless,

nothing in Mr. Hunter’s complaint in the District Court can be construed as

contesting the adequacy of the process given to him at his disciplinary hearing.

As a result, this argument is waived for failure to raise it below. See Cummings,

393 F.3d at 1190–91.

                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM the District Court’s dismissal of

Mr. Hunter’s § 1983 suit. In dismissing Mr. Hunter’s suit under 28 U.S.C.


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§ 1915(e)(2)(B)(ii), the District Court noted that such dismissal counted as a

strike under § 1915(g). Our affirmance of this dismissal solidifies the existence

of that single strike. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175

F.3d 775, 780 (10th Cir. 1999). Because we conclude that Mr. Hunter’s appeal

lacks any arguable basis in law or fact, and therefore is frivolous under

§ 1915(e)(2)(B)(i), this appeal results in an additional strike against Mr. Hunter.

Id. We GRANT Mr. Hunter’s motion to proceed in forma pauperis. We also

remind Mr. Hunter that he is obligated to continue making payments toward the

balance of his assessed filing fees until they are paid in full.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Chief Circuit Judge




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