                                                                               F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                FEB 25 2004
                             FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk

    ERIC ADAMS,

                Plaintiff-Appellant,

    v.                                                           No. 03-1110
                                                          (D.C. No. 02-N-631 (MJW))
    J. NEGRON; R.A. PERDUE;                                       (D. Colo.)
    P. LAIRD; R.E. HOLT,

                Defendants-Appellees.


                              ORDER AND JUDGMENT                *




Before McCONNELL , ANDERSON , and BALDOCK , 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.

         Plaintiff-appellant Eric Adams, a federal prisoner appearing pro se, appeals

from the dismissal of his civil rights suit filed under       Bivens v. Six Unknown


*
      This order and judgment is not binding precedent, except under the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.
Named Agents of the Federal Bureau of Narcotics          , 403 U.S. 388 (1971). Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

       Plaintiff contends that his Due Process and Eighth Amendment

constitutional rights were violated when he was placed in a highly structured,

restrictive prison housing unit called the “K & C Model Management Program.”

He contends he was improperly placed in the K & C Program as a sanction after

he was found guilty in a prison disciplinary hearing for possessing a weapon.

Plaintiff later amended his complaint, seeking an injunction to prevent his transfer

from the United States Penitentiary (USP) in Florence, Colorado, to USP in

Marion, Illinois, claiming the transfer was in retaliation for his   Bivens lawsuit.

       Plaintiff filed a motion for summary judgment. Defendants filed a motion

to dismiss or, alternatively, for summary judgment, seeking to dismiss the

complaint for numerous reasons, including that plaintiff failed to assert any

cognizable constitutional violations, and that defendants are entitled to qualified

immunity. In a thorough and well-reasoned fifteen-page report, the magistrate

judge recommended that plaintiff’s complaint be dismissed for failure to state a

constitutional violation or a retaliation claim. The district court reviewed the

recommendation de novo, adopted it, and granted summary judgment dismissing

the complaint.




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       We have liberally construed plaintiff’s pro se pleadings,      see Haines v.

Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), and reviewed the district

court’s grant of summary judgment de novo,          see Barney v. Pulsipher , 143 F.3d

1299, 1306 (10th Cir. 1998). We affirm for substantially the same reasons given

by the district court, including the report and recommendation of the magistrate

judge. R. Docs. 48 and 52.

       We agree that the facts alleged by plaintiff do not demonstrate that his

placement in the K & C Program imposed an “atypical and significant hardship

[upon him] in relation to the ordinary incidents of prison life,” and, therefore, did

not violate his due process rights.      Sandin v. Conner , 515 U.S. 472, 484 (1995).

We also agree that plaintiff’s allegations about his conditions of confinement do

not constitute an Eighth Amendment violation because his alleged deprivations

are not sufficiently serious to rise to the level of a cruel and unusual punishment,

nor has plaintiff presented evidence that defendants were deliberately indifferent

to any serious medical needs.         See Rhodes v. Chapman , 452 U.S. 337, 347 (1981)

and Wilson v. Seiter , 501 U.S. 294, 298, 303 (1991) (describing the objective and

subjective components required to state an Eighth Amendment claim). Finally,

we agree that, given plaintiff’s lengthy record of prison disciplinary actions,

legitimate penological interests supported his transfer to USP Marion and,

therefore, he cannot show that filing his      Bivens complaint was the “but for”


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cause of his transfer.   See Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir.

1998) (holding that plaintiff must prove that “but for” the allegedly retaliatory

motive, the adverse action would not have taken place).

       The judgment of the district court is AFFIRMED. Plaintiff’s motion to

proceed on appeal without prepayment of fees and costs is GRANTED, and he

is reminded that he is obligated to continue making partial payments toward the

balance of his assessed fees and costs until they are paid in full. The mandate

shall issue forthwith.


                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




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