United States District Court, D. Kansas
DANIEL W. KINARD, Plaintiff,
NICOLE ENGLISH, Warden, USP-Leavenworth, et al., Defendants.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
filed this pro se civil rights action while in federal
custody at USP-Leavenworth in Leavenworth, Kansas. Plaintiff
challenges the warden's compliance with Federal Bureau of
Prison's (“BOP”) policies in failing to
remove three points from his custody classification for
“History of Escape.” On December 18, 2018, the
Court entered a Memorandum and Order and Order to Show Cause
(Doc. 16) (“MOSC”), granting Plaintiff until
January 18, 2019, to show good cause why his Complaint should
not be dismissed for the reasons set forth in the MOSC. This
matter is before the Court on Plaintiff's Response. (Doc.
was arrested on July 23, 1989, in Washington D.C. Plaintiff
is alleged to have escaped from a CCA van on July 24, 1999.
In 2002, Plaintiff was transferred to BOP custody. In 2006
the BOP changed their custody procedures and stopped holding
Plaintiff responsible for the alleged escape because he was
not given a state disciplinary proceeding regarding the
escape. Plaintiff alleges that the procedures are no longer
being followed, and that the BOP refuses to correct the
warden's failure to follow BOP procedures in Program
Statement 5100.08 regarding custody classification. Plaintiff
seeks injunctive relief and compensatory damages.
Court found in the MOSC that Plaintiff does not have a
constitutional right to a particular security classification
or to be housed in a particular yard. Mecahum v.
Fano, 427 U.S. 215, 224 (1976); Harbin-Bey v.
Rutter, 420 F.3d 571, 577 (6th Cir. 2005) (increase in
security classification does not constitute an atypical and
significant hardship because “a prisoner has no
constitutional right to remain incarcerated in a particular
prison or to be held in a specific security
classification”)). The Supreme Court has held that
“the Constitution itself does not give rise to a
liberty interest in avoiding transfer to more adverse
conditions of confinement.” Wilkinson v.
Austin, 545 U.S. 209, 221-22 (2005) (citing
Meachum, 427 U.S. at 225 (no liberty interest
arising from Due Process Clause itself in transfer from
low-to maximum-security prison because “[c]onfinement
in any of the State's institutions is within the normal
limits or range of custody which the conviction has
authorized the State to impose”)). “Changing an
inmate's prison classification . . . ordinarily does not
deprive him of liberty, because he is not entitled to a
particular degree of liberty in prison.” Sawyer v.
Jefferies, 315 Fed.Appx. 31, 34 (10th Cir. 2008) (citing
Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.
1994) (citing Meachum, 427 U.S. at 225)).
has not alleged that his assignment imposed any atypical and
significant hardship in relation to the ordinary incidents of
prison life. Cf. Wilkinson, 545 U.S. at 223-24
(finding atypical and significant hardship in assignment to
supermax facility where all human contact prohibited,
conversation not permitted, lights on 24-hours-a-day,
exercise allowed for only one hour per day in small indoor
room, indefinite placement with annual review, and
disqualification of otherwise eligible inmate for parole
Court also found in the MOSC that “prison regulations
are meant to guide correctional officials, not to confer
rights on inmates.” Farrakhan-Muhammad v.
Oliver, 677 Fed.Appx. 478, 2017 WL 460982, at *1 (10th
Cir. Feb. 3, 2017) (unpublished) (citing Sandin v.
Conner, 515 U.S. 472, 481-82 (1995)); Cooper v.
Jones, 372 Fed.Appx. 870, 872 (10th Cir. 2010)
(unpublished) (“The process due here is measured by the
Due Process Clause of the United States Constitution, not the
internal policies of the prison.”). Therefore, a
failure to strictly follow administrative regulations
“does not equate to a constitutional violation.”
Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th
Cir. 1993) (citing Davis v. Scherer, 486 U.S. 183,
Response fails to address the deficiencies set forth in the
MOSC. Plaintiff's response claims that he was denied due
process in his custody classification hearing. Plaintiff
claims that, in response to his administrative grievance,
Defendant acknowledged that Plaintiff's conduct occurred
“while outside the Bureau of Prison's
custody” and Plaintiff was “found guilty of
Escape from Lawful Custody in a criminal Court proceeding
which exceeds the exception caveat of an institution
disciplinary hearing finding that a prohibited act was
committed.” (Doc. 17, at 4.) Plaintiff asks for a
“meaningful hearing” to have his custody scores
reflect its true value. For the reasons set forth in the
MOSC, the Court finds that Plaintiff's claim regarding
his security classification should be dismissed for failure
to state a claim.
IS THEREFORE ORDERED BY THE COURT that this matter
is dismissed for failure to state a claim.