OpenJurist

94 F3d 655 Finley v. W Zavaras

94 F.3d 655

G. George FINLEY, Jr., Plaintiff-Appellant,
v.
Aristedes W. ZAVARAS, Executive Director, Carol Hadley;
Larry Curtis; Colorado Department of Corrections; William
Price, Warden, James Romanski, Hearing Officer; Ben
Blackmore, Reviewing Officer, Defendants-Appellees.

No. 96-1005.
(D.C.No. 95-B-324)

United States Court of Appeals, Tenth Circuit.

Aug. 15, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

1

ORDER AND JUDGMENT*

2

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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

3

Mr. G. George Finley, Jr. filed this pro se action under 42 U.S.C. § 1983, alleging that the Colorado Department of Corrections and several state officials violated his due process and Eighth Amendment rights. The district court granted defendants' motion to dismiss Mr. Finley's complaint for failure to state a claim upon which relief can be granted. Mr. Finley then filed this timely appeal.1

4

The Due Process Clause requires Mr. Finley to first assert the infringement of a protected liberty interest. Kentucky Dep't. of Corrections v. Thompson, 490 U.S. 454, 460 (1989). A protected liberty interest may arise from either the Due Process Clause itself or from the laws of a State. Id. Disciplinary segregation does not implicate a protected liberty interest under the Due Process Clause itself. Sandin v. Conner, 115 S.Ct. 2293, 2302 (1995). Moreover, the Supreme Court has held a prisoner's "discipline in segregated confinement [does] not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Sandin, 115 S.Ct. at 2301.

5

The Eighth Amendment requires Mr. Finley to show that defendants were both "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [that they made] the inference." Farmer v. Brennan, 114 S.Ct. 1970, 1979 (1994).

6

We have reviewed the record and Mr. Finley's assertions. We are not persuaded the district court erred in granting defendants' motion to dismiss.2 Accordingly, we AFFIRM substantially for the reasons given by the magistrate judge in his report and recommendation, as adopted by the district court.

7

The mandate shall issue forthwith.

*

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 10th Cir. R. 36.3

1

The district court granted Mr. Finley's motion for leave to proceed in forma pauperis on appeal

2

We decline to consider the factual and legal issues Mr. Finley raises for the first time on appeal. See Oyler v. Allenbrand, 23 F.3d 292, 299 n. 8 (10th Cir.1994)