McDonald v. Lee ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60073
Summary Calendar
DAVID McDONALD,
Plaintiff-Appellant,
VERSUS
ANN LEE; RAYMOND ROBERTS; EARL JACKSON; SUZIE STEIGER,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Mississippi
(4:95-CV-369)
June 24, 1996
Before WIENER, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:*
Appellant, David McDonald ("McDonald") appeals the dismissal
of his civil rights action against Mississippi prison officials.
We affirm.
FACTS AND PROCEEDINGS BELOW
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
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McDonald, a Mississippi state prisoner, filed this pro se, in
forma pauperis (IFP) 42 U.S.C. § 1983 action against various prison
officials, claiming that the defendants retaliated against him for
requesting to move from Unit 29 by placing him in Unit 32 on “D-
Custody.” He contended that he was denied adequate due process in
the move as he was not given any justification or reasons for the
move. He alleged that he had been on Unit 32 from July 13, 1995
through the time he filed the complaint in November 1995. During
that time he had been denied all of the privileges enjoyed by the
general population, including phone calls, yard and gym calls,
contact visits, movie and education privileges, canteen calls and
custody upgrades. McDonald also complained that his close
confinement violated his Eighth Amendment right to be free of cruel
and unusual punishment. A memorandum from prison officials, which
McDonald attached to his complaint, explained that he was placed on
D-Custody status and moved to Unit 32 because of his institutional
conduct and behavioral problems. McDonald also attached several
rule violation reports for various incidents, including destruction
of state property and for encouraging others to riot.
Prior to service of the defendants, the district court
considered McDonald’s complaint and sua sponte dismissed it with
prejudice for failure to state a claim upon which relief could be
granted. The district court stated that prison regulations not
affecting the duration of an inmate’s confinement did not afford an
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inmate a protected liberty interest, and, consequently, any delay
in releasing McDonald in to the general prison population, even if
not justifiable, did not rise to a constitutional issue cognizable
under § 1983. The district court did not address McDonald’s
retaliation claim or his Eighth Amendment claim.
DISCUSSION
McDonald contends that the district court erred by dismissing
his complaint for failure to state a claim because it did not
address his due process claim. McDonald asserts that he has been
held in long-term disciplinary confinement with only perfunctory
review and no guide explaining how he can reenter general
population. McDonald contends that his approximate eight-month
restricted confinement imposes atypical and significant hardship
upon him which violates his due process rights.
a. Standard of review.
This case presents a procedural anomaly because the district
court sua sponte dismissed McDonald’s IFP action for failure to
state a claim prior to service on the defendants. Although this
circuit’s law previously allowed a district court to dismiss an IFP
complaint as frivolous for failure to state a claim, dismissal of
an IFP complaint on this basis is no longer allowed. Pugh v.
Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989). However,
the dismissal can be upheld if it is apparent that McDonald’s claim
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has no arguable basis in law or in fact. See id. at 438-39.
In dismissing an IFP complaint, the district court has “‘not
only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the
veil of the complaint’s factual allegations and dismiss those
claims whose factual contentions are clearly baseless.’” Macias v.
Raul A., Badge No. 153, 23 F.3d 94, 97 (5th Cir.)(quoting Neitzke
v. Williams, 490 U.S. 319, 327 (1989)), cert. denied, 115 S. Ct.
220 (1994). This court reviews a § 1915(d) dismissal for an abuse
of discretion. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).
Section 1915(d) dismissals are generally without prejudice.
See Graves v. Hampton, 1 F.3d 315, 318-19 (5th Cir. 1993).
However, if the allegations in the complaint are legally or
factually insufficient and cannot be cured by an amendment, a §
1915(d) dismissal may be with prejudice. See id. at 319 (legal
insufficiency); see also Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994)(factual insufficiency).
b. Has McDonald alleged a cognizable liberty interest?
A prisoner’s liberty interest is:
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, 115 S. Ct. 2293, 2300 (1995). “[A]dministrative
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segregation, without more, does not constitute a deprivation of a
constitutionally cognizable liberty interest.” Luken v. Scott, 71
F.3d 192, 193 (5th Cir. 1995), cert. denied, 1996 WL 122607 (1996);
see Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996).
A review of McDonald’s description of his close confinement
with its lack of the many privileged of general population does not
indicate atypical or significant hardship beyond the ordinary.
McDonald’s complaint of the loss of good time privileged does not
state a constitutionally protected liberty interest protected by
due process. See Luken, 71 F.3d at 193. McDonald’s objection to
the loss of custody upgrades also does not state any cognizable
liberty interest. See Moody v. Baker, 857 F.2d 256, 257-58 (5th
Cir.), cert. denied, 488 U.S. 985 (1988)(an inmate has neither a
protectible property nor liberty interest in his custody
classification).
Further, it is clear from the prison documents attached to the
complaint that McDonald was held for several months in D-Custody
segregation pursuant to an administrative assignment based on his
past disciplinary record, rather than as a form of punishment.
Limiting an inmate’s freedom inside a prison to protect the
security and integrity of the prison unit and to protect the
prisoners from each other does not amount to discipline or
punishment which would give rise to Constitutional due process
concerns. See Eason v. Thaler, 73 F.3d 1322, 1326 (5th Cir. 1996).
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CONCLUSION
For the foregoing reason, we affirm the district court’s
dismissal of McDonald’s claims.
AFFIRMED.
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