Martinez v. Turner, 977 F.2d 421 (8th Cir. 1992). · Go Syfert
Martinez v. Turner, 977 F.2d 421 (8th Cir. 1992). Cases Citing This Book View Copy Cite
“an inmate's mere disagreement with the course of medical treatment does not give rise to a constitutional claim”
110 citation events (95 in the last 25 years) across 21 distinct courts.
Strongest positive: Henry v. Franks (ared, 2024-03-27)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Henry v. Franks
E.D. Ark. · 2024 · signal: see also · quote attribution · 1 verbatim quote · confidence high
pretrial detainees are presumed innocent and may not be punished.
discussed Cited as authority (verbatim quote) Hankins v. Bredeman
E.D. Mo. · 2020 · quote attribution · 1 verbatim quote · confidence high
an inmate's mere disagreement with the course of medical treatment does not give rise to a constitutional claim
cited Cited as authority (rule) Raevon Terrell Parker v. Sarah E. Pitlyk
E.D. Mo. · 2026 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) McElroy v. Stamps
W.D. Ark. · 2025 · confidence medium
A. Due Process Under the Due Process Clause of the Fourteenth Amendment, “[p]retrial detainees are presumed innocent and may not be punished.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)).
discussed Cited as authority (rule) Glaum v. Braun
D.N.D. · 2025 · confidence medium
See Story v. Foote, 782 F.3d 968, 969 (8th Cir. 2015); see also Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (courts may disregard factual allegations that are clearly baseless, fanciful, fantastic, or delusional); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Nietske v. Williams, 490 U.S. 319, 325 (1989), for the proposition that a complaint is frivolous if it lacks an arguable basis in fact or is based on an indisputable meritless legal theory).
discussed Cited as authority (rule) Thompson v. Foley (2×) also: Cited "see"
E.D. Mo. · 2025 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Thurman v. Rug Doctor
E.D. Mo. · 2024 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Thompson v. Haper (2×) also: Cited "see"
E.D. Mo. · 2024 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Miller v. Granger (2×) also: Cited "see"
E.D. Mo. · 2024 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Miller v. Busch (2×) also: Cited "see"
E.D. Mo. · 2024 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Dean v. Saint Louis City P.D.
E.D. Mo. · 2024 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Graham v. Apple Store
E.D. Mo. · 2024 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Ash v. Law Enforcement Agencies
D. Minnesota · 2024 · confidence medium
For legal frivolity, a matter lacks an arguable legal basis if it is “based on an indisputably meritless legal theory.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Harry v. FBI
E.D. Mo. · 2023 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Parson v. Barney
D. Minnesota · 2023 · confidence medium
With respect to legal frivolity, a claim “lacks an arguable basis in law if [it] is based on an indisputably meritless legal theory.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Neitzke, 490 U.S. at 327 ); see also, e.g., Hines v. Minn. Dep’t of Corr., No. 18-CV-3250 (ECT/BRT), 2020 WL 1102210 , at *11 (D.
discussed Cited as authority (rule) Lenear v. State of Minnesota, The
D. Minnesota · 2023 · confidence medium
As for legal frivolity, a matter “lacks an arguable basis in law if the claim is based on an indisputably meritless legal theory.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Neitzke, 490 U.S. at 327 ); see also, e.g., Hines v. Minn. Dep't of Corr., No. 18-cv-3250 (ECT/BRT), 2020 WL 1102210 , at *11 (D.
discussed Cited as authority (rule) Webb v. Johnson (2×) also: Cited "see"
D. Neb. · 2023 · confidence medium
See Ferguson v. Cape Girardeau County, 88 F.3d 647 , 650 (8th Cir. 1996) (holding that placement of a pretrial detainee in segregation for 13 days, was not “punishment” because it was done for the legitimate governmental objectives of monitoring the plaintiff's health and preventing him from harming other detainees); Martinez, 977 F.2d at 423 (remanding for a determination of whether the pretrial detainee was required to work as “punishment” or in furtherance of the legitimate governmental objective of “general housekeeping”); Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002) (exp…
cited Cited as authority (rule) Fuller v. United States of America Military
E.D. Mo. · 2022 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Henderson v. State of Minnesota
D. Minnesota · 2022 · confidence medium
And an appeal lacks a reasonable basis in law when “the claim is based on an indisputably meritless legal theory.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Small v. Megabus
E.D. Mo. · 2022 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Graham v. U.S. Congress of United States
E.D. Mo. · 2022 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8" Cir. 1992).
discussed Cited as authority (rule) Cush-El v. State of Missouri INC. (2×) also: Cited "see"
E.D. Mo. · 2022 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Goodwin v. Hughes
D. Neb. · 2022 · confidence medium
July 13, 2009) (citing Fed.R.Civ.P. 10(c); Hughes v. Banks, 290 Fed.Appx. 960 , 2008 WL 4065874 (8th Cir.2008); Thompson v. Illinois Department of Professional Regulation, 300 F.3d at 754 (court may consider documents attached to a complaint that indicate the plaintiff has no claim); Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 913 (8th Cir.2002); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992) (considering documents attached to the complaint in determining that prisoner had no constitutional claim)). the course of his medical treatment fails to state a claim against a…
cited Cited as authority (rule) McFarland v. 21st Judicial Circuit, St. Louis County, Missouri
E.D. Mo. · 2022 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Ybarra v. Kallis
D. Minnesota · 2021 · confidence medium
And an appeal lacks a reasonable basis in law when “the claim is based on an indisputably meritless legal theory.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Baker v. National Football League Inc./Enterprises (NFL)
E.D. Mo. · 2021 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8 Cir. 1992).
cited Cited as authority (rule) Holder v. Florissant Police Department
E.D. Mo. · 2021 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Decoteau v. United States Goverment
D.N.D. · 2020 · confidence medium
Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (court may disregard factual allegations that are clearly baseless, fanciful, fantastic, or delusional); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Nietske v. Williams, 490 U.S. 319, 325 (1989), for the proposition that a complaint is frivolous if it lacks an arguable basis in fact or is based on an indisputable meritless legal theory).
discussed Cited as authority (rule) Decoteau v. United States Goverment
D.N.D. · 2020 · confidence medium
Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (court may disregard factual allegations that are clearly baseless, fanciful, fantastic, or delusional); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Nietske v. Williams, 490 U.S. 319, 325 (1989), for the proposition that a complaint is frivolous if it lacks an arguable basis in fact or is based on an indisputable meritless legal theory).
cited Cited as authority (rule) Hurt v. United States
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8" Cir. 1992).
cited Cited as authority (rule) Hurt v. U.S. Constitution
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Hurt v. U.S. Constitution
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8" Cir. 1992).
cited Cited as authority (rule) Hurt v. United States of America
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Hurt v. United States of America
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Hurt v. United States of America
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Hurt v. United States of America
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Barnett v. Hill
E.D. Mo. · 2020 · confidence medium
The court upheld the dismissal of his claim because attachments to the pleadings showed that the plaintiff’s shoulder had been treated, and “an inmate’s mere disagreement with the course of medical treatment does not give rise to a constitutional claim.” Id. at 423.
cited Cited as authority (rule) McMath v. United States Immigration
E.D. Mo. · 2020 · confidence medium
See 28 U.S.C. § 1915 (e)(2)(B)(i); and Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Taylor v. Commerce Bank
E.D. Mo. · 2020 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) Taylor v. Corporation Worldwide
E.D. Mo. · 2019 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
discussed Cited as authority (rule) Powell v. Wal-Mart Stores, Inc.
D. Minnesota · 2019 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992). 2 Further, because Powell’s IFP application has not yet been granted, the Court will not decide whether Powell should get an extension to serve process should the IFP be granted. herself. 28 U.S.C. § 455 (a) (“Any justice, judge or magistrate judge of the Unite States shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned.”) (emphasis added).3 Because the Magistrate Judge has not decided whether he must recuse himself, the Court will not rule on Powell’s motion at …
cited Cited as authority (rule) Thompson v. Federal Bureau of Investigations
E.D. Mo. · 2019 · confidence medium
Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
cited Cited as authority (rule) McPeek v. Kelsey
D.S.D. · 2018 · confidence medium
“Pretrial detainees are presumed innocent and may not be punished.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)).
discussed Cited as authority (rule) Waller v. Means
W.D. Ark. · 2018 · confidence medium
The Eighth Circuit has stated that “[p]retrial detainees are presumed innocent and may not be punished.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979).
discussed Cited as authority (rule) Scott v. Benson
N.D. Iowa · 2015 · confidence medium
The Eighth Circuit Court of Appeals specifically pointed out that the plaintiff had failed to ground his' claim in the Constitution, stating, “[t]he mere allegation of forced-feeding dóes not describe a constitutional violation.” Martinez, 977 F.2d at 423.” Both Parks and McCormick dealt with a prisoner who had an infectious disease, and Judge O’Brien previously ruled that the- defendants clearly have a legitimate and overriding interest in treating Scott if he is inflicted with an infectious disease such as whooping cough.
discussed Cited as authority (rule) Carrie Sama v. Edward Hannigan
5th Cir. · 2012 · signal: cf. · confidence medium
Sept. 21, 2004) (finding fact issues existed as to whether an inmate consented to placement of a third stent and that, because there was no evidence indicating the necessity or urgency of the stent, summary judgment on the inmate’s Fourteenth Amendment claim was inappropriate); cf. Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (rejecting constitutional claim against prison regulations authorizing medical officers to force-feed an inmate if they determined his life or permanent health was in danger). 14 No. 10-40835 least one court has recognized the untenable position of physicians i…
discussed Cited as authority (rule) Carrie Sama v. Edward Hannigan (2×)
5th Cir. · 2012 · signal: cf. · confidence medium
Sept. 21, 2004) (finding fact issues existed as to whether an inmate consented to placement of a third stent and that, because there was no evidence indicating the necessity or urgency of the stent, summary judgment on the inmate’s Fourteenth Amendment claim was inappropriate); cf. Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992) (rejecting constitutional claim against prison regulations authorizing medical officers to force-feed an inmate if they determined his life or permanent health was in danger). .
discussed Cited as authority (rule) Tahiraj-Dauti v. Attorney General
3rd Cir. · 2009 · confidence medium
See, e.g., McCormick v. Stalder, 105 F.3d 1059, 1062 (5th Cir.1997) (due process does not prevent prison officials from forcing a prisoner to undergo treatment for tuberculosis); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992) (rejecting constitutional challenge to decision by prison officials to force-feed an inmate to preserve his health after a hunger strike); Washington v. Silber, 805 F.Supp. 379, 383-85 (W.D.Va.1992) (allowing forced medication when the prisoner was a danger to himself and others, even though he had not become assaultive at that point).
discussed Cited as authority (rule) Tahiraj-Dauti v. Attorney General
3rd Cir. · 2009 · confidence medium
See, e.g., McCormick v. Stalder, 105 F.3d 1059, 1062 (5th Cir.1997) (due process does not prevent prison officials from forcing a prisoner to undergo treatment for tuberculosis); Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992) (rejecting constitutional challenge to decision by prison officials to force-feed an inmate to preserve his health after a hunger strike); Washington v. Silber, 805 F.Supp. 379, 383-85 (W.D.Va.1992) (allowing forced medication when the prisoner was a danger to himself and others, even though he had not become assaultive at that point).
discussed Cited as authority (rule) Baribeau v. City of Minneapolis (2×) also: Cited "see"
D. Minnesota · 2008 · confidence medium
A detainee may not, consistent with due process, be punished prior to an adjudication of guilt, Martinez v. Turner, 977 F.2d 421, 423 (8th Cir.1992), and the government may not, consistent with due process, arbitrarily or unreasonably deprive an individual of his property, see County of Sacramento v. Lewis, 523 U.S. 833, 845-846 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998).
Retrieving the full opinion text from the archive…
Jorge L. Martinez
v.
C.A. Turner, Warden, Medical Center for Federal Prisoners D. Counts, Unit Manager, Medical Center for Federal Prisoners Jack Smith, Case Manager, Federal Medical Center for Federal Prisoners L.J. Daugherty, Counselor, Medical Center for Federal Prisoners W. Hensley, Lieutenant, Medical Center for Federal Prisoners A. Clark, Lieutenant, Medical Center for Federal Prisoners G. Martinia, Lieutenant, Medical Center for Federal Prisoners Shaw, Correctional Officer, Medical Center for Federal Prisoners Crom, Correctional Officer, Medical Center for Federal Prisoners E.J. Blades, Correctional Officer, Medical Center for Federal Prisoners Dr. William Francis, Medical Center for Federal Prisoners George Cordivin, Dr., Medical Center for Federal Prisoners E. Wetzel, Dr., Medical Center for Federal Prisoners J.W. Clawson, Dr., Medical Center for Federal Prisoners G. Rose, Nurse, Medical Center for Federal Prisoners Coursen, Nurse, Medical Center for Federal Prisoners G. Diullo, Physical Therapist, Medical Center for Federal Prisoners
91-3714.
Court of Appeals for the Eighth Circuit.
Oct 8, 1992.
977 F.2d 421
Cited by 21 opinions  |  Published

977 F.2d 421

Jorge L. MARTINEZ, Appellant,
v.
C.A. TURNER, Warden, Medical Center for Federal Prisoners;
D. Counts, Unit Manager, Medical Center for Federal
Prisoners; Jack Smith, Case Manager, Federal Medical Center
for Federal Prisoners; L.J. Daugherty, Counselor, Medical
Center for Federal Prisoners; W. Hensley, Lieutenant,
Medical Center for Federal Prisoners; A. Clark, Lieutenant,
Medical Center for Federal Prisoners; G. Martinia,
Lieutenant, Medical Center for Federal Prisoners; Shaw,
Correctional Officer, Medical Center for Federal Prisoners;
Crom, Correctional Officer, Medical Center for Federal
Prisoners; E.J. Blades, Correctional Officer, Medical
Center for Federal Prisoners; Dr. William Francis, Medical
Center for Federal Prisoners; George Cordivin, Dr., Medical
Center for Federal Prisoners; E. Wetzel, Dr., Medical
Center for Federal Prisoners; J.W. Clawson, Dr., Medical
Center for Federal Prisoners; G. Rose, Nurse, Medical
Center for Federal Prisoners; Coursen, Nurse, Medical
Center for Federal Prisoners; G. Diullo, Physical
Therapist, Medical Center for Federal Prisoners, Appellees.

No. 91-3714.

United States Court of Appeals,
Eighth Circuit.

Submitted July 22, 1992.
Decided Oct. 8, 1992.

Appellant proceeded pro se.

Alleen S. Castellani, Asst. U.S. Atty., Kansas City, Mo., argued, for appellees.

Before BEAM, Circuit Judge, BRIGHT, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

BRIGHT, Senior Circuit Judge.

[*~421]1

Jorge L. Martinez appeals the district court's order dismissing his pro se complaint, before service of process, as frivolous under 28 U.S.C. § 1915(d) (1988). We affirm in part and reverse in part.

2

Martinez asserted in his Bivens-type[1] complaint that his due process rights as a pretrial detainee confined in the United States Medical Center for Federal Prisoners (USMCFP) were violated when USMCFP officials (1) failed to provide proper medical care for a dislocated shoulder; (2) placed him in administrative segregation after he refused a work assignment because of his shoulder and his status as a pretrial detainee; and (3) ordered that he be force-fed after the seventh day of his hunger strike.[2] Martinez sought leave to file his complaint in forma pauperis. The district court denied Martinez leave and dismissed his complaint for "lack of any substantial merit."

[*~422]3

A district court may dismiss a complaint under 28 U.S.C. § 1915(d) if it is frivolous. A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989). It lacks an arguable basis in law if the claim is based on an indisputably meritless legal theory. Id. at 327, 109 S.Ct. at 1832. A district court's section 1915(d) dismissal is reviewed by this court for abuse of discretion. Denton v. Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).

[*423]4

Martinez's first and third claims lack an arguable basis in law. To state a constitutional claim for inadequate medical care, Martinez must demonstrate that the officials were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Attachments to Martinez's pleadings reveal that Martinez's shoulder was treated. Although Martinez may disagree with the treatment he received, an inmate's mere disagreement with the course of medical treatment does not give rise to a constitutional claim. Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985).

5

Martinez's claim that he was force-fed also fails to state a constitutional claim. The mere allegation of forced-feeding does not describe a constitutional violation. Bureau of Prison regulations authorize medical officers to force-feed an inmate if they determine that the inmate's life or permanent health is in danger. See 28 C.F.R. § 549.60-549.66 (1991). Attachments to Martinez's pleadings reveal that USMCFP medical officers determined that forced-feeding was necessary to his health. Martinez's allegation that a district court ordered the forced-feedings discontinued is unfounded; the record reveals that the district court merely issued an order deleting, without explanation, a paragraph from a previous order requiring that Martinez be force-fed.

[*423]6

Martinez's second claim--that he was denied due process when placed in administrative segregation for refusing to work--does not lack an arguable basis in law and, therefore, should not have been dismissed prior to service of process. Pretrial detainees are presumed innocent and may not be punished. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979). The determination whether a particular restriction or condition accompanying pretrial detention is punishment turns on whether the restriction or condition is reasonably related to a legitimate governmental objective. Id. at 538-39, 99 S.Ct. at 1873-74. Requiring a pretrial detainee to work or be placed in administrative segregation is punishment. Chestnut v. Magnusson, 942 F.2d 820, 823 (1st Cir.1991) (citing McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973)); Bell v. Wolff, 496 F.2d 1252, 1254 (8th Cir.1974). Requiring a pretrial detainee to perform general housekeeping chores, on the other hand, is not. Bijeol v. Nelson, 579 F.2d 423, 425 (7th Cir.1978). Moreover, federal regulations provide that a pretrial detainee may not be required to work in any assignment or area other than housekeeping tasks in the detainee's own cell. 28 C.F.R. § 545.23(b) (1991). The mandatory language of this regulation may give rise to a predictable liberty interest. See Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1989). The district court could not, on the basis of the record before it, determine what, if any, work was being asked of Martinez. His claim was not indisputably meritless, and should not have been dismissed as frivolous.

7

Accordingly, we affirm the district court's dismissal of all Martinez's claims except his claim that he was denied due process when placed in administrative segregation for refusing to work. We reverse the dismissal of that claim and remand for reinstatement in the district court and service of process on the defendants.[3]

1

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized a cause of action for damages against federal officials for fourth amendment violations. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), Bivens was extended to actions arising under the due process clause of the fifth amendment

2

Martinez also alleged that his constitutional rights were violated when he was placed in administrative segregation after an officer told him he would not be; he was transferred from USMCFP while on his hunger strike after an officer told him he would not be; and the warden opined, without proper expertise, that Martinez could withstand five to seven days without food. These allegations clearly fail to describe the violation of a constitutional right

3

Appellant's pending Motion to Appoint Counsel is referred to the district court for appropriate action