Birdo v. Dunston et al

Filing 4

ORDER DISMISSING CASE. Signed by Chief Judge Robert J. Conrad, Jr on 5/17/13. (Pro se litigant served by US Mail.)(nll)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13-cv-93-RJC
DAVID TED BIRDO,

)
)
Plaintiff,
)
)
v.
)
)
LARRY DUNSTON, FRANCES REEL,
)
JAMES GRIBBLE,
)
)
Defendants.
)
_________________________________________ )

ORDER

THIS MATTER is before the Court for initial review pursuant to 28 U.S.C. § 1915(e)
and § 1915A. For the reasons explained below, the Court dismisses Plaintiff’s Complaint sua
sponte for failure to state a claim.
I.

BACKGROUND
A.

Plaintiff’s Allegations

Plaintiff David Ted Birdo is a state court inmate currently incarcerated at Eastern
Correctional Institution in Maury, North Carolina. On March 6, 2013, Plaintiff filed this action
under 42 U.S.C. § 1983.1 Plaintiff paid the filing fee and is proceeding pro se. Plaintiff alleges
violations of his rights under the First, Eighth, and Fourteenth Amendments stemming from the
confiscation of certain mail materials, an increase in his security level classification, and prison
officials’ decision to require Plaintiff to participate in a rehabilitative program for prison gang
members. Plaintiff describes the confiscated mailings as the “pro white” writings of David Lane.
Plaintiff has named as Defendants Larry Dunston, identified as Chief of Security, North Carolina

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Plaintiff originally filed the Complaint in the Eastern District of North Carolina, and that Court
transferred the action to this Court by Order dated April 1, 2013.
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Department of Correction; and Frances Reed and James Gribble, both identified as Lieutenant
Facility Intelligence Officers at Avery-Mitchell Correctional Institution.
Plaintiff alleges that on July 26, 2011, while he was incarcerated at Avery-Mitchell
Correctional Institution, he received several David Lane writings through the mail, but that
prison officials confiscated and refused to allow Plaintiff to read some of them. See (Doc. No. 1
at 3; 4). Plaintiff alleges that on August 3, 2011, he met with Defendant Reed regarding David
Lane writings that had been sent to Plaintiff on July 13, 2011, and August 2, 2011. (Id. at 4).
Plaintiff then met with Defendant Reed again on August 5, 2011, regarding David Lane writings
sent to Plaintiff on August 1, 2011. Plaintiff alleges that he informed Defendant Reed that the
writings were not gang-related, nor did they advocate violence, despite that the writings were
“pro-white.” (Id.). Plaintiff alleges that the David Lane writings received through the mail on
July 26, 2011 are still in Plaintiff’s possession. (Id.).
Plaintiff alleges that on August 5, 2011, he submitted his first grievance alleging a
violation of his First Amendment rights. (Id.). On August 8, 2011, a person named Lisa
Wheeler allegedly left a voicemail for Defendant Dunston regarding the David Lane writings.
(Id.). On August 9, 2011, Plaintiff alleges that Defendant Dunston responded that because
Plaintiff held pro-white beliefs, he could not receive the materials. Dunston also allegedly stated
that if Wheeler sent Plaintiff any more writings, Dunston would increase Plaintiff’s security
levels. (Id. at 5).
On or around September 27, 2011, as a result of receiving the David Lane writings,
Plaintiff pled guilty to an involvement with a gang charge, and Plaintiff was validated as a Level
One Aryan Nation member on or around that date.2 See (Doc. No. 1-1 at 14). At some point,

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The Court takes judicial notice that the Aryan Nation has been recognized as a violent and
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Plaintiff was classified as part of a Security Threat Group.
Plaintiff alleges that on October 12, 2011, he was transferred to Alexander Correctional
Institution and on November 17, 2012, he was transferred to Eastern Correctional Institution
based on Plaintiff’s receipt of the writings. (Doc. No. 1 at 6; 7). Plaintiff alleges that prison
officials at both the Avery-Mitchell and Alexander Correctional Institutions disciplined him for
receiving the David Lane materials by imposing an elevated custody status, time in segregation,
loss of good conduct time, extra work duty, and loss of telephone and visitation privileges. (Id.
at 4; 6). Plaintiff alleges that, while at Alexander Correctional Institution, Defendant Gribble
notified Plaintiff that Defendant Dunston had increased Plaintiff’s security level classification,
and Gribble recommended that Plaintiff remain at that level. (Id. at 6-7).
Plaintiff alleges that on January 14, 2013, while at Eastern Correctional Institution,
Captain Lewis informed Plaintiff that because of the Lane writings, Plaintiff would have to
participate in the Security Threat Group Management Unit (“STGMU”) Program at Foothills
Correctional Institution, a nine-month program for active gang members that requires inmates to
remain in their cells 22 to 23 hours each day. (Id. at 8). According to Plaintiff, on some
occasions he has been allowed to receive mail that included writings by Lane, but on at least
three occasions his mail was confiscated and he was punished for requesting that his family
provide him with Lane’s writings. (Id. at 5). Plaintiff alleges that since being imprisoned he has

powerful prison gang. See Kevin Johnson, Co-founder Sheds Light on Texas’ Aryan
Brotherhood, USA TODAY, Apr. 12, 2013,
http://www.usatoday.com/story/news/nation/2013/04/11/co-founder-sheds-light-on-aryanbrotherhood/2074789; David Grann, Annals of Crime: The Brand, THE NEW YORKER, Feb. 16,
2004 (“Authorities had once dismissed the Aryan Brotherhood as a fringe white-supremacist
gang; now, however, they concluded that what prisoners had claimed for decades was true—
namely, that the gang’s hundred or so members, all convicted felons, had gradually taken control
of large parts of the nation’s maximum-security prisons, ruling over thousands of inmates and
transforming themselves into a powerful criminal organization.”).
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never been found guilty of being involved in gang activity, nor has he had any infractions for
violence. (Id. at 8). Plaintiff alleges that Defendants violated his right to free speech under the
First Amendment, his right to be free from cruel and unusual punishment under the Eighth
Amendment, and his due process rights under the Fourteenth Amendment. (Id. at 3).
As relief, Plaintiff seeks appointment of counsel, a temporary restraining order
prohibiting Defendants from sending Plaintiff to Foothills Correctional Institution to attend the
STGMU program, a jury trial, compensatory damages of $150,000 per Defendant, punitive
damages of $75,000 per Defendant, restoration of gain time and privileges lost, restoration of
Plaintiff’s security level back to Level One, removal of the charge of being affiliated with a
gang; a declaratory judgment that Defendants violated Plaintiff’s First, Eighth, and Fourteenth
Amendment rights, and costs and attorneys’ fees. (Id. at 4; 11).
B.

Plaintiff’s Administrative Grievances

Plaintiff has attached as exhibits to his Complaint four grievances he filed detailing his
claims in this action.3
1.

Plaintiff’s August 5, 2011 Grievance Related to the Confiscation of the
David Lane Materials

In his first grievance, Plaintiff complained about the confiscation of the David Lane
materials. In Step One of the grievance process, in response to Plaintiff’s grievance, prison
officials at Avery Mitchell Correctional Institution stated on August 11, 2011:
David Birdo . . . is a validated Level I member of the STG [Security Threat
Group] Aryan Nation. His mail is monitored and screened as any other mail that
comes into the facility. On three separate occasions I have received letters from
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The Court may take judicial notice of Plaintiff’s grievance filings in the prison administrative
proceedings without converting this matter to a Rule 56 motion for summary judgment. See
Franklin v. Ward, No. 9:12-477-JFA-BM, 2012 WL 5499836, at *2 n.4 (D.S.C. Sept. 11, 2012).
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the Mail Room to review, due to the information those letters contained, as well
as pictures and symbols. There are several articles referencing David Lane, a
known member and activist within the Aryan Nation, the Ku Klux Klan, and other
White Supremacist material. There was also a picture of Osama Bin Laden and
Adolf Hitler: the Adolf Hitler picture has a large swastika emblem in the middle
of it. Both individuals are known threat terrorists with world domination beliefs.
The swastika is a known logo or symbol used frequently to identify with the
Aryan Nation and other known White Supremist [sic] groups. I have forwarded
the material to Larry Dunston, Chief of Security over STG affairs, for review and
disposition of the material. [] Birdo received notification of the material that is
being held and has been advised that it has been sent for further review.
(Doc. No. 1-1 at 2).
Next, in Step Two of the grievance process, prison officials stated on August 26, 2011:
After a careful review of your grievance, I find that staff has adequately
responded to your complaint. Per NCDOC policy Chapter D, section 0.109
Publications Received/Possessed by Inmates: Materials which pose a threat to the
specified objectives may do so either directly, or indirectly. Direct threats include
but are not limited to the active advocacy of escape, interference with security
devices, or violence against staff or others. Indirect threats to these objectives
include but are not limited to: (1) materials which advocate or facilitate collective
action or affiliation by inmates either generally or with respect to validated
Security Threat Groups; (2) materials, with the exception of foreign language
publications as noted in .0109(e), containing or facilitating communications
which are not readily understandable to reviewing staff; (3) materials which may
be used to harass, distract, demean, or intimidate staff or others; (4) or materials
which impede inmate rehabilitation. The confiscated material was sent to the
Chief of Security for further review, if he deems it appropriate then it will be
returned to you. Based on this information, no further action is required.
(Id. at 2).
Finally, in a Findings and Disposition Order dated September 21, 2011, a Grievance
Examiner found as follows:
Inmate David Birdo filed this grievance on August 5, 2011, at Avery Mitchell
Correctional Institution complaining about wanting to know the status of the
material-information that was taken from him. Staff responded that an
investigation of inmate Birdo’s concern revealed that staff adequately and in
detail addressed inmate Birdo’s material-information concern in the step one unit
response of his grievance.
The examiner has carefully reviewed the grievance and the response given by
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staff in the DC-410A response. From this review, I am convinced that staff has
adequately addressed this inmate’s grievance concerns. I adopt the facts found by
the staff administrator.
My examination of this grievance reveals no violation of applicable Division of
Prisons policy nor does it show any evidence of staff indifference. No further
action warranted; thus this grievance is dismissed.
(Id. at 3).
2.

Plaintiff’s March 28, 2012 Grievance Related to His Security
Classification and Designation for Transfer to STGMU at Foothills
Correctional Institution

In his second grievance, Plaintiff complained about being demoted to Security Level
Three by the Chief of Security’s Office and the prison’s planned transfer of him to the Foothills
Correctional Institution to participate in the STGMU program. In Step One of the grievance
process, prison officials responded as follows on March 7, 2012:
According to my investigation the Facility Intelligence Lieutenant reports you
were demoted to level 3 by the Chief of Security’s Office. You have had 1 Class
A Infraction and 3 Class B Infractions within the last year all of which place in
violation of the core criteria established in Section .1700 of the Security Manual.
Your request to be taken back to level one cannot be handled at this level. Before
you can be promoted to Level One you will have to have attended the STG
Management Program at Foothills. Your name will be placed on a long list of
other level threes and when yours comes up you will be sent to the program. No
further action necessary.
(Id. at 8). Next, in Step Two of the grievance process, a prison official stated on March 7, 2012,
“I have reviewed your grievance . . . and found that it has been appropriately responded to in
Section 23. No further response is warranted.” (Id.).
In a Findings and Disposition Order dated March 28, 2012, a Grievance Examiner found
as follows:
David Birdo filed this grievance on January 29, 2012, at Alexander Correctional
Institution. Staff concluded that the inmate has not been treated unfair[ly] or
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outside the scope of correctional policies and procedures.
This examiner has carefully reviewed the grievance and the response given by
staff in the DC-410A response. From this review, I am convinced that staff has
adequately addressed this inmate’s grievance concerns. I adopt the facts found by
the staff investigator.
On this record, this inmate’s allegations are insufficiently supported. Thus, this
grievance is dismissed for lack of supporting evidence.
(Id. at 9).
3.

Plaintiff’s October 17, 2012, Grievance Related to His Classification as a
Level Three Aryan Nations Member

In his third grievance, Plaintiff complained about his classification as a Level Three
Aryan Nations member. In Step One of the grievance process, prison officials responded as
follows on October 15, 2012:
According to SGTO Swain, you were validated as a Level-1 Aryan Nation on
9/14/11. You pleaded guilty to an A-14 (involvement with gang charge). STGO
Swain stated that by NCDPS Security Threat Group policy, the A-14 charge
meets the core criteria for a level increase. STGO Swain stated that this is why
you are now a Level-3 Aryan Nation. Therefore, no further action is necessary.
(Id. at 14).
Next, in Step Two of the grievance process, a prison official stated on October 22, 2012,
“As noted in step 1 response, policy was followed regarding your A14 gang infraction initiating
a referral for increase in STG levels which was forwarded through the chain of command for
approval.” (Id. at 15).
In a Findings and Disposition Order dated November 27, 2012, a Grievance Examiner
found as follows:
David Birdo filed this grievance on 10/17/12 at Pasquotank [Correctional
Institution] grieving about his STG Level Status being increased. Inmate is now
housed at Eastern [Correctional Institution]. [A]dministrator Harrell responded
“As noted in step 1 response, policy was followed regarding your A14 gang
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infraction initiating a referral for increase in STG Levels which was forwarded
through the chain of command for approval.”
This examiner has reviewed this grievance and the response by staff. On this
record, it appears that proper action has been taken by staff to resolve this
inmate’s grievance concerns. Therefore, this grievance is considered resolved by
DOC staff.
(Id.).
4.

Plaintiff’s January 17, 2013, Grievance Related to The Requirement that
He Participate in the STGMU Program at Foothills Correctional
Institution

In his fourth grievance, Plaintiff complained about his impending transfer to Foothills
Correctional Institution to participate in the STGMU program. Prison officials responded as
follows on January 24, 2013:
You stated Captain Lewis and Sgt. Eubanks informed you about going to the Foot
Hills to be added to participate in the [STGMU] Program. You stated you did not
want to be added to any list no[r] participate in any program. Captain Lewis
stated it was not up to him whether or not you go but it is the decision of Mr.
Larry Dunston, Security Specialist.
(Id.). Next, in Step Two of the grievance process, a prison official stated on February 12, 2013,
“Step one response is appropriate. There are specific policies in the Security Manual pertaining
to assignments to the STGMU program. All information received indicates all
guidelines/policies were followed in this incident. No further information is needed.” (Id. at
18). No Final Disposition and Order was attached as an exhibit.
Finally, Plaintiff has also attached as an exhibit a list of his infractions, taken from the
Department of Public Safety web site, and showing the following infractions by Plaintiff since
his incarceration in North Carolina correctional institutions: Involvement With A Gang or
Security Threat Group on September 14, 2011; Disobey Order on August 26, 2011; Verbal

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Threat on August 26, 2011; Weapon Possession on April 13, 2011; Attempt Class B Offense on
January 10, 2011; Attempt Class D Offense on January 10, 2011; Profane Language on June 7,
2009; Disobey Order on June 12, 2007; Disobey Order on May 13, 2007; Disobey Order on
December 28, 2005; Unauthorized Location on December 28, 2005; and Profane Language on
May 7, 2005.4 See (Id. at 22).
II.

STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint

to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity,” and the
court must identify cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or seeks monetary relief from a defendant who is immune from such relief. In its
frivolity review, this Court must determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or
delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
III.

DISCUSSION
A.

First Amendment Claim

While prisoners and detainees have some First Amendment rights in both receiving and
sending mail, prison officials may place reasonable restrictions on these rights. See Thornburgh

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The Court takes judicial notice that Plaintiff’s infractions are public records and their
authenticity is not in dispute. See Jones v. Penn Nat’l Ins. Co., 835 F. Supp. 2d 89 (W.D.N.C.
2011).
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v. Abbott, 490 U.S. 401, 413 (1989). Prison regulations and practices relating to the regulation
of incoming mail are analyzed under a reasonableness standard as set forth in Turner v. Safley,
482 U.S. 78, 89-91 (1987). Under that standard, a prison action is valid if it is reasonably related
to legitimate penological interests. Turner, 482 U.S. at 89. In determining the reasonableness of
a restraint on an inmate’s right to receive mail, courts must consider the following factors: (1)
whether there is a valid, rational connection between the action and the stated legitimate
government interest; (2) whether there are alternative means of exercising the right; (3) whether
accommodation of the right will have an adverse impact on guards, other inmates, and prison
resources generally; and (4) the absence of ready alternatives. Id. at 89-90.
Based on the Complaint and on the attached grievances, Plaintiff has not stated a claim of
a First Amendment violation against Defendants. The Court finds that the first factor in Turner
is satisfied because there is a rational connection between the North Carolina Department of
Public Safety’s regulations and the objective of prohibiting mail associated with Security Threat
Groups and white supremacist groups in particular, from entering or leaving the state’s prisons.
Next, as to whether there are alternative means of exercising Plaintiff’s First Amendment right,
Plaintiff is still free to engage in free expression regarding political matters, political beliefs, or
political parties as long as his speech does not contain threatening or inflammatory
communications.
Next, as to whether accommodation of the right will have an adverse impact on guards,
other inmates, and prison resources generally, “it is common sense that enabling inmates to
receive gang-related material has an enormous impact on guards and other inmates” and
“material associated with Security Threat Groups poses the threat of inciting gang violence in the
prison environment.” Johnson v. Williams, No. 3:07-cv-1659, 2011 WL 6778711, at *4 (D. Or.

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Dec. 22, 2011). Here, in response to Plaintiff’s grievance regarding the David Lane materials,
prison officials noted that the confiscated materials contained “articles referencing David Lane, a
known member and activist within the Aryan Nation, the Ku Klux Klan, and other White
Supremacist material. There was also a picture of Osama Bin Laden and Adolf Hitler: the Adolf
Hitler picture has a large swastika emblem in the middle of it. Both individuals are known threat
terrorists with world domination beliefs. The swastika is a known logo or symbol used
frequently to identify with the Aryan Nation and other known White Supremist [sic] groups.”
(Doc. No. 1-1 at 2). Prison officials found that the confiscated materials contained messages that
could “advocate or facilitate collective action or affiliation by inmates either generally or with
respect to validated Security Threat Groups,” “be used to harass, distract, demean, or intimidate
staff or others,” or that could “impede inmate rehabilitation.” (Id.).
Although Plaintiff has the right to free expression, this right must be balanced against
prison officials’ right to maintain security and prevent violence. See Pell v. Procunier, 417 U.S.
817, 827 (1974) (stating that the judgment of correctional officials in security matters is
“peculiarly within the province and professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily defer to their expert judgment in such
matters.”). Here, Plaintiff’s administrative grievances demonstrate that, particularly given
Plaintiff’s personal gang affiliation, prison officials had a clear right to prohibit Plaintiff from
receiving certain publications in order to maintain security and prevent violence.
Finally, as to the fourth Turner factor—the absence of ready alternatives—aside from
allowing the prohibited materials into the prison, there are no readily available alternatives to
prohibiting these materials.

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In sum, after applying the Turner factors, the Court finds that the prison officials’ conduct
was reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. Therefore,
Plaintiff has failed to state a claim of a violation of his First Amendment rights.
B.

Eighth Amendment Claim

To state a claim for cruel and unusual punishment due to conditions of confinement that
violate the Eighth Amendment, a plaintiff must allege facts sufficient to show (1) an objectively
serious deprivation of a basic human need—that is, one causing serious physical or emotional
injury—and (2) that prison officials were deliberately indifferent to that need. See Farmer v.
Brennan, 511 U.S. 825 (1994); Wilson v. Seiter, 501 U.S. 294, 198 (1991). To meet the first
prong, Plaintiff must allege facts sufficient to show that the condition complained of was a
“sufficiently serious” deprivation of a basic human need. Farmer, 511 U.S. at 834 (citing
Wilson, 501 U.S. at 298). Only extreme deprivations will make out an Eighth Amendment
claim, and it is Plaintiff’s burden to allege facts sufficient to show that the risk from the
conditions of his confinement was so grave that it violated contemporary notions of decency and
resulted in serious or significant physical or emotional injury. Hudson v. McMillian, 503 U.S. 1,
8-9 (1992); Strickler v. Waters, 989 F.2d 1375, 1379-81 (4th Cir. 1993). To meet the second
prong, Plaintiff must allege facts sufficient to show that Defendants were deliberately indifferent
to the fact that a “substantial risk of serious harm” was posed to Plaintiff’s health and safety.
Farmer, 511 U.S. at 837. Here, Plaintiff fails to meet the first prong of the test for cruel and
unusual punishment. That is, Plaintiff does not allege a serious injury caused by confiscation of
the David Lane materials, an increase in his security level classification, or in the requirement
that he participate in the STGMU program at Foothills Correctional Institution. Therefore,
Plaintiff's Eighth Amendment claim must be denied for failure to state a claim upon which relief

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can be granted.
C.

Fourteenth Amendment Due Process Claim

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV § 1. In
order to prevail on either a procedural or substantive due process claim, an inmate must first
demonstrate that he was deprived of “life, liberty, or property” by governmental action. See
Plyler v. Moore, 100 F.3d 365, 374 (4th Cir. 1996). To establish liability under § 1983, a
plaintiff must show that “the defendants acted intentionally in depriving him of his protected
interest.” Id. Although a state may create constitutionally protected liberty interests, “these
interests will be generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of
its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Generally,
a prison may place restrictions on inmates’ receipt of written materials only when those
restrictions are reasonably related to legitimate penological interests. See Turner, 482 U.S. at 89.
As noted above, the claims that Plaintiff has exhausted administratively through his
administrative grievances include his claim based on prison officials’ confiscation of the David
Lane materials, his claim based on his increased security level classification, and his claim based
on his required participation in the STGMU program at Foothills Correctional Institution. First,
as to Plaintiff’s claim related to the confiscation of the David Lane materials, he has not shown
that he has a protected liberty interest in having access to the David Lane materials. The North
Carolina Department of Public Safety has determined that, in the interest of security at the state
prisons, inmates are prohibited from receiving certain materials in the mail, including materials

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that could advocate or facilitate collective action or affiliation by inmates either generally or with
respect to validated Security Threat Groups, materials that could be used to harass, distract,
demean, or intimidate staff or others, and materials that could impede inmate rehabilitation. See
State of North Carolina Department of Correction Division of Prisons: Policy and Procedures,
Chapter D, Section .0109, Publications Received/Possessed by Inmates. The North Carolina
Department of Public Safety “has a legitimate interest in rehabilitating inmates, as well as in
maintaining security, discipline, and order.” Faircloth v. Lee, No. 5:05-CT-21-FL, 2006 WL
4821347, at *6 (E.D.N.C. July 25, 2006). Because Plaintiff does not have a constitutionally
protected liberty interest in having unfettered access to all reading materials, particularly those
that threaten the security, discipline, and order of North Carolina prisons, he has not stated a
claim for a violation of his due process rights.
Next, as to Plaintiff’s security classification, the Supreme Court has held that a prisoner
does not have a protected liberty interest in the procedures affecting his classification and
security because the resulting restraint does not impose an “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. at
484. Without a protected liberty interest, a plaintiff cannot successfully claim that his due
process rights were violated because, “[p]rocess is not an end in itself.” Olim v. Wakinekona,
461 U.S. 238, 250 (1983). Moreover, the Supreme Court has repeatedly held that a prisoner has
no constitutional right to be incarcerated in a particular facility or to be held in a specific security
classification. See Olim, 461 U.S. at 245. Similarly, Plaintiff also fails to state a due process
claim arising out of his required participation in the STGMU program at Foothills Correctional
Institution because Plaintiff has no protected liberty interest in remaining at a particular
correctional institution and in determining what programs he wishes to participate in while

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incarcerated. See id.
In sum, Plaintiff fails to state a claim for a violation of his Fourteenth Amendment due
process rights.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Complaint is dismissed for failure to state a claim under § 1915(e)(2)
and § 1915A for failure to state a claim; and

2.

The Clerk is instructed to terminate this case.

Signed: May 17, 2013

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