JESUS JOHN HERNANDEZ, PETITIONER V. ANTHONY BELASKI, WARDEN, ET AL.

   No. 90-7109

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The Respondents In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals, Pet. App. 2-6, the order of
the district court, id. at 7-9, and the recommendation of the
magistrate, id. at 10-14, are not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 29,
1990.  A petition for rehearing was denied on January 18, 1991.  Pet.
App. 1.  The petition for a writ of certiorari was filed on February
14, 1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's claim that prison officials denied him
access to the courts should have been dismissed because he failed to
serve process on those officials.

   2. Whether it was reversible error for the courts below to collapse
the four claims alleged in the complaint into two.

   3. Whether petitioner's allegations regarding his prison transfer,
if true, stated claim that the transfer violated the Fifth Amendment's
Due Process Clause.

                               STATEMENT

   1. Petitioner is an inmate at the Federal Correctional Institution
in La Tuna, New Mexico (F.C.I. La Tuna).  He brought this pro se
Bivens action for damages against six officials of the Federal
Correctional Institute in Englewood, Colorado (F.C.I. Englewood),
claiming that they violated the First, Fifth, and Eighth Amendments by
confiscating his papers and transferring him from F.C.I. Englewood to
F.C.I. La Tuna.

   In his complaint, petitioner alleged that while he was incarcerated
at F.C.I. Englewood, officials there confiscated as contraband all
legal materials, both his and those of other inmates he was assisting
as their "jailhouse lawyer." Complaint Paragraphs 12-18.  The
officials allegedly took the materials from petitioner's locker and
withheld them for approximately ten days.  Ibid.  Petitioner alleged
that the officials returned to him materials bearing his name and
returned the remainder to approximately twenty other inmates.  Id.
Paragraphs 19-20.  He alleged that prison management threatened that
he would get into trouble by assisting inmates, informed him that he
was "putting himself on front street by assisting other inmates" with
their legal matters, and suggested that he could be subject to
retaliatory transfer.  Id. Paragraphs 21-25.  He further alleged that
he was charged with participation in a food strike in which he did not
participate, but that the disciplinary committee found that he
participated in the strike and used the finding as a basis for
transfering him out of F.C.I. Englewood.  Id. Paragraphs 26-84.

   2. The district court granted petitioner's motion to proceed in
forma pauperis and referred the complaint to a magistrate, who
recommended its dismissal.  Pet. App. 10-14.  The district court
accepted that recommendation.  It viewed the complaint as raising two
claims:  violation of access to the courts and violation of due
process in the prison transfer.  The court dismissed the access claim
without prejudice for failure to exhaust administrative remedies.  It
dismissed the transfer claim with prejudice on the ground that
petitioner had no protectable interest in being confined at a
particular institution.  Pet. App. 7-9.  Since it dismissed the
complaint, the court did not order service of process on any of the
defendants.

   3. The court of appeals affirmed.  Pet. App. 2-5.  Although it read
the complaint to allege exhaustion of administrative remedies (or
being prevented from doing so by prison officials), it affirmed
dismissal of the access claim without prejudice on the ground that
petitioner failed to serve process on the defendants.  Id. at 2-4.  It
also affirmed dismissal of the transfer claim with prejudice, based on
the district court's rationale -- namely, that petitioner had no
protectable interest in being confined at a particular institution.
Id. at 4-5.

                               ARGUMENT

   Review of the court of appeals' unpublished disposition is not
warranted.

   1. Petitioner contends, Pet. 4, that the court of appeals erred in
dismissing his access claim (that prison officials violated his right
of access to the courts) on the ground that he failed to serve the
defendants.  Although petitioner is correct that 28 U.S.C. 1915(c)
requires officers of the court to "issue and serve all process" in in
forma pauperis proceedings, including this one, that oversight does
not merit this Court's intervention.  The district court dismissed
petitioner's access claim without prejudice, Pet. App. 9, and the
court of appeals affirmed dismissal of that claim on the same basis,
id. at 5.  Accordingly, petitioner may reinstate his access claim
simply by refiling his complaint in the district court.

   2. Contrary to petitioner's contention, Pet. 7, the lower courts
did not commit reversible error when they collapsed his four claims
into two, because one of the remaining two claims is insubstantial and
the other is derivative of the two the courts specifically addressed.

   One of the remaining claims alleged a violation of the equal
protection component of the Fifth Amendment's Due Process Clause.  The
only factual predicate for that claim, however, is the wholly
conclusory one-paragraph allegation (in a complaint containing
seventy-two factual paragraphs), that "(t)he plaintiff also advised
the defendants * * * that they were subjecting many of the Hispanic
inmates to discrimination based upon the defendant's 'discretionary
judgments'in accessing (sic) those inmates conditions of confinement."
Complaint Paragraph 16.

   The other claim is an alleged violation of the Eighth Amendment's
prohibition against cruel and unusual punishment.  Petitioner's
complaint does not allege any facts to support such a claim apart from
the two claims the lower courts considered.

   3. Petitioner contends that the court of appeals erred in holding
that his prison transfer, allegedly in retaliation for exercising his
right of access to the courts, did not violate the Fifth Amendment's
Due Process Clause.  Pet. 7.  Although the complaint might have stated
a due process violation if it alleged such a retaliatory transfer, it
is clear from petitioner's complaint, Paragraphs 23, 25, and even
clearer from his amended complaint, Paragraph 2, that petitioner is
claiming that he was transferred in retaliation for assisting other
inmates with their legal filings.  Petitioner has no constitutional
right to assist others with their legal filings.  Since interstate
prison transfers do not by themselves deprive inmates of any liberty
interest protected by the Due Process Clause, Olim v. Wakinekona, 461
U.S. 238, 244-248 (1983), the court below was correct to hold that
petitioner had no justifiable expectation that he would be
incarcerated in any particular facility.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   BARBARA L. HERWIG

      Attorney

   JUNE 1991