Spellmon v. Price ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20926
_____________________
TERRENCE R. SPELLMON,
Plaintiff - Appellant
v.
J. KEITH PRICE, ET AL.,
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-3712)
_________________________________________________________________
October 10, 1996
Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN,*
District Judge.
PER CURIAM:**
Texas prisoner Terrence Spellmon, proceeding pro se and in
*
District Judge for the Southern District of Texas, sitting
by designation.
**
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this opinion should not be published and is not precedent except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.
1
forma pauperis, filed this action under 42 U.S.C. § 1983 alleging
that various prison personnel violated his constitutional rights.
The district court dismissed his claims as frivolous pursuant to
28 U.S.C. § 1915(d), and Spellmon appeals. We affirm.
I. BACKGROUND
A. Facts
Spellmon’s constitutional claims are based on allegations
concerning several separate disciplinary incidents, summarized as
follows. On February 9, 1993, Lieutenant T.C. Carroll and
another official searched Spellmon’s storage box in an
unsuccessful hunt for marijuana and cash. Later that day Carroll
informed Spellmon that he had found a contraband “stinger” (an
electrical heating device) in Spellmon’s cell; Spellmon denied
the charge. Carroll nevertheless filed a disciplinary report
charging Spellmon with possession of contraband. Spellmon was
consequently disciplined with 30 days recreation restriction, 30
days commissary restriction, and 30 days day room restriction.
Three days later, while Spellmon was in the law library,
Carroll wrongly accused him of taking a sheet of paper from
another inmate and told him to leave the library. When Spellmon
requested a grievance form, Carroll responded that he would file
a report against Spellmon. On February 19, 1993, while Spellmon
was being held in pretrial detention, Carroll refused to pick up
his request for a law book, causing a two-day delay in Spellmon’s
2
access to the law library.
On January 27, 1993, Spellmon was proceeding from his
cellblock to the law library when Officer S. Willmore, apparently
in response to a disturbance in the hall, grabbed him and pushed
him back to his assigned quarters. When Spellmon stated that he
was en route to the law library, Willmore replied, “You’re not
going no where, and if you keep fuckin [sic] up I’m going to
break you up.” On or about February 10, 1993, when another
inmate told Willmore that he did not know where Spellmon was and
asked whether Spellmon was in trouble, Willmore replied, “He
filed a grievance on me.”
On February 18, 1993, Willmore verbally approved Spellmon’s
request to pick up some legal documents from an inmate on “K-
line,” but as soon as Spellmon entered K-line Willmore told him
he was “out of place.” Spellmon was handcuffed and taken to
Lieutenant Dugger, who said that a disciplinary report would be
filed against him. Spellmon was then placed in pre-hearing
detention. Four days later, Spellmon learned that he was being
held in pre-hearing detention because Dugger had written in a
logbook, falsely, that Spellmon had “threatened a staff member.”
The disciplinary report filed by Willmore had charged Spellmon
only with being out of place, lying to an officer, and refusing
to obey orders. Spellmon pleaded guilty to the out of place
charge. On February 23, 1993, Spellmon went before Captain
Ellinburgh for his hearing on Willmore’s disciplinary report.
3
Ellinburgh told Spellmon that he was placed in pre-hearing
detention for threatening a staff member, a charge for which
Plaintiff had not received notice. Ellinburgh disciplined
Spellmon with 30 days commissary restriction, a reprimand, and 15
days of solitary confinement. After the hearing concluded,
Ellinburgh stated to Spellmon that the punishment of solitary
confinement was for threatening a staff member.
On March 25, 1993, Spellmon received from Officer Green a
disciplinary report filed by Officer Pierce charging Spellmon
with masturbating in public. Plaintiff stated to Green that he
had been in the law library during the time in question. Green
replied, apparently referring to Pierce, “I don’t know what’s
wrong with that wom[a]n.” Spellmon attended a hearing on the
Pierce disciplinary report on April 6, 1993. Captain Brock was
presiding.1 Although Spellmon overheard Pierce state to another
officer before the hearing that Spellmon was “not the one he’s
too dark,” Pierce nonetheless testified that Spellmon was the
offender. Green also testified that he saw Spellmon
masturbating, in apparent contradiction with his earlier remark
to Spellmon. Spellmon called as a witness Officer Meese, who
testified that Spellmon had been in the library for almost four
1
Spellmon alleged that Captain Brock, who was the brother of
a defendant named in one of Spellmon’s many lawsuits, told Spellmon
before the hearing started that Spellmon was “going to be crying”
afterwards and that he, Brock, was “going to take everything
[Spellmon] got.”
4
hours at the time of the alleged offense. Brock found Spellmon
guilty and imposed 30 days commissary restriction, 30 days
recreation restriction, a reduction in unit classification, and
loss of 535 days of good time. Spellmon appealed Brock’s
decision.
On April 9, 1993, Spellmon attended a unit classification
hearing before Warden J. Keith Price for a review of his custody
status. Price told him his previous classification and good time
would be restored if Meese supported his story in the Pierce
matter. On April 23, 1993, Price presided over another hearing
at which Spellmon learned that Major J. Thomas had called him a
“pain in the ass” and wanted him placed in close custody “where
he belongs.” On May 1, 1993, Meese told Spellmon that no one had
spoken to her about the Pierce matter. On May 3, 1993, Spellmon
attended another unit classification hearing, at which Associate
Warden Crow told him that his appeal of the Pierce disciplinary
report had been denied and that he was being placed in the medium
custody section of the prison, which was in lockdown status at
the time. Spellmon remained in lockdown from May 3, 1993, until
June 18, 1993, without ever having received notice that he had
engaged in conduct which warranted such status. On May 20, 1993,
Spellmon received notice that the Pierce disciplinary report had
been expunged from his record, but Spellmon remained in lockdown
nevertheless. On May 25, 1993, Spellmon was again served with
the Pierce disciplinary report. On June 11, 1993, Spellmon was
5
retried on the Pierce charges. On June 17, 1993, Ellinburgh
dismissed the case.
B. Claims Asserted
Spellmon filed this lawsuit on November 23, 1993, against
Price, Crow, Thomas, Brock, Ellinburgh, Carroll, Dugger, Pierce,
Willmore, and Jones, his case manager, alleging that defendants’
actions violated his rights under the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments. Spellmon claims, inter alia,
that his constitutional rights were violated by (1) the filing of
false disciplinary reports initiated in retaliation for his
active use of the courts; (2) his placement in lockdown without
notice and a hearing; (3) his continued confinement in lockdown
after the relevant disciplinary charges were dismissed; and (4)
his punishment for charges not contained in any disciplinary
report.
C. District Court Proceedings
The magistrate judge ordered Spellmon to answer
interrogatories concerning the factual basis of his complaint.
The district court later held a Spears hearing2 to further
develop the factual predicate of Spellmon’s claims. The district
court concluded that Spellmon’s claims were legally frivolous
under 28 U.S.C. § 1915(d) and dismissed the complaint with
prejudice. Among the findings of the district court were (1) all
2
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
6
disciplinary proceedings comported with procedural due process;
(2) the conditions of Spellmon’s confinement in lockdown did not
violate Eighth Amendment standards; (3) the placement of Spellmon
in lockdown was for non-punitive reasons and was within the terms
of confinement ordinarily contemplated by a prison sentence; and
(4) Spellmon’s allegations of retaliation were conclusory,
subjective, and speculative.
D. Arguments on Appeal
Spellmon argues on appeal that his claims were improperly
dismissed as frivolous because (1) the filing of false
disciplinary reports violated his rights under the Fifth and
Fourteenth Amendments;3 (2) his confinement in lockdown violated
his rights under the Fifth, Eighth, and Fourteenth Amendments;
(3) his punishment for a charge not contained in a disciplinary
report violated his rights under the Fifth and Fourteenth
Amendments; and (4) his allegations state a valid claim for
retaliation.4
3
After careful review of Spellmon’s brief and the cases cited
therein, we find that Spellmon’s argument concerning the filing of
false disciplinary charges is based solely on procedural due
process and not on any deprivation akin to malicious prosecution.
Even if Spellmon were heard to assert such a claim, the Supreme
Court held in Albright v. Oliver, 510 U.S. 266 (1994), that
malicious prosecution is not actionable as a deprivation of
substantive due process under the Fourteenth Amendment.
4
Spellmon appears to have abandoned all other claims
presented below. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1995) (claims not briefed on appeal are deemed abandoned).
7
II. ANALYSIS
Section 1915(d) authorizes a district court to dismiss an in
forma pauperis complaint “if the allegation of poverty is untrue,
or if satisfied that the action is frivolous or malicious.” 28
U.S.C. § 1915(d)). A complaint is frivolous if “it lacks an
arguable basis either in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in
law if it is “based on an indisputably meritless legal theory,”
such as where defendants are clearly immune from suit or where
the complaint alleges infringement of a legal interest which
clearly does not exist. Id. at 327. We review a § 1915(d)
dismissal for abuse of discretion. Denton v. Hernandez, 504 U.S.
25, 33 (1992).
Spellmon argues that the false accusations of defendants
Carroll and Pierce, knowingly made, sufficiently tainted the
disciplinary proceedings associated therewith as to deprive him
of due process under the Fifth and Fourteenth Amendments.
Spellmon does not challenge the district court’s finding that the
disciplinary proceedings otherwise met constitutional
requirements for due process. Because the Fifth Amendment
applies only to the actions of the federal government, Morin v.
Caire, 77 F.3d 116, 120 (5th Cir. 1996), we limit our analysis to
the due process protections of the Fourteenth Amendment.
8
Spellmon relies on United States v. Wallace, 673 F. Supp. 205
(S.D. Tex. 1987), and Morrison v. Lefevre, 592 F. Supp. 1052
(S.D.N.Y. 1984), for the proposition that a prison disciplinary
proceeding does not comport with due process where false
inculpatory evidence is knowingly introduced through state
action. Both Wallace and Morrison apply to the context of prison
disciplinary proceedings the principle articulated in Napue v.
Illinois, 360 U.S. 264 (1959), that a state may not knowingly use
false evidence to obtain a conviction. This circuit has
previously held that a prisoner’s claim that he was charged in a
disciplinary report with acts he did not commit did not state a
deprivation of due process where the disciplinary proceeding was
otherwise fair and adequate. Collins v. King, 743 F.2d 248, 253-
54 (5th Cir. 1984). The claims in this case do not present any
meaningful distinction between the filing of false charges and
the presentation of false testimony; the same officer who filed
the disciplinary report was also the individual who allegedly
testified falsely to the very facts that formed the basis of the
report. Accordingly, Spellmon’s claim that he was deprived of
procedural due process cannot be sustained under prevailing law.
Spellmon’s due process claim is deficient also in a more
fundamental respect; namely, the allegations of his complaint do
not implicate any constitutionally cognizable liberty interest
sufficient to trigger due process protection. In Sandin v.
Conner, 515 U.S. ___, 115 S. Ct. 2293 (1995), the Supreme Court
9
reexamined the analytical framework it created in Hewitt v.
Helms, 459 U.S. 460 (1983), wherein it held that a state may
create protected liberty interests through the use of mandatory
language in statutes and regulations. In Sandin, in which a
state prisoner challenged his punitive segregation on due process
grounds, the Court held that, although states may create liberty
interests protected by the due process clause, those interests
are
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, 115 S. Ct. at 2300 (citations omitted). The Court held
that the prisoner’s disciplinary confinement, though punitive,
was not such a “dramatic departure” from the basic conditions of
his sentence as to constitute a protected liberty interest that
would entitle him to the procedural protections set forth in
Wolff v. McDonnell, 418 U.S. 539 (1974). Sandin, 115 S. Ct. at
2300. Sandin has considerably narrowed the scope of potential
due process liberty claims that can be brought by prisoners under
the Fourteenth Amendment. See Orellana v. Kyle, 65 F.3d 29, 32
(5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 736
(1996).
The discipline imposed on Spellmon for possession of
contraband and for masturbating in public consisted of
10
restrictions on recreation, commissary and day room privileges,
and a change in custodial status which resulted in his being
confined for approximately six weeks in a section of the prison
then on lockdown.5 Under the standard set forth in Sandin, these
changes in Spellmon’s conditions of confinement do not implicate
a liberty interest sufficient to invoke due process protections.
See Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied sub
nom. Luken v. Johnson, ___ U.S. ___, 116 S. Ct. 1690 (1996).
Spellmon cites Wallace for the proposition that a prisoner
has a “liberty interest” in not having false statements, reports,
and evidence presented at a disciplinary hearing. Spellmon’s
apparent reliance on Wallace to establish the predicate liberty
interest is flawed in at least two respects. First, the knowing
presentation of false evidence at an official proceeding does not
itself constitute a deprivation of liberty, but rather implicates
procedural due process. See Collins, 743 F.2d at 250 (prisoner’s
claim that he suffered deprivation of liberty because of untrue
and excessive disciplinary charges is complaint about want of
procedural due process). The position that such use of false
evidence is simultaneously a substantive deprivation of liberty
and a deprivation of due process is untenable. Second, Wallace
5
Spellmon’s loss of 535 days of good time, imposed for the
masturbating in public charge, was restored when this charge was
dismissed. The restoration of Spellmon’s good time precludes any
claim that he was deprived of a liberty interest in the duration of
his sentence.
11
was a criminal case in which defendants were charged pursuant to
18 U.S.C. § 241 with conspiracy to deprive a prisoner of his
constitutional rights, not a prisoner action under 42 U.S.C. §
1983. As the court pointed out in Wallace, section 241 does not
require proof of an actual deprivation of rights that would
afford a private cause of action under section 1983. Wallace,
673 F. Supp. at 206.
Spellmon also contends that his Fourteenth Amendment rights
were violated when he was deprived of notice and a hearing before
being placed in lockdown; when he was not removed from lockdown
after the disciplinary case was dismissed; when he was subjected
to a lockdown instituted in response to the actions of other
inmates;6 and when he was disciplined with solitary confinement
for “threatening a staff member” despite the fact that this
charge was not contained in any disciplinary report. Each of
these claims is premised upon a liberty interest in freedom from
disciplinary segregation which is not constitutionally cognizable
in the wake of Sandin.
6
Spellmon nominally asserts that his confinement in lockdown,
absent any behavior on his part warranting such close custody, also
violates his rights under the Eighth Amendment. The body of
Spellmon’s argument, however, properly focuses on due process
concerns, as his contention is properly analyzed under the
Fourteenth Amendment. Even if this claim were cognizable under
the Eighth Amendment, Spellmon’s confinement in lockdown was not so
lacking in penological interest or otherwise in contravention of
contemporary standards of decency as to rise to the level of a
constitutional violation. See Rhodes v. Chapman, 452 U.S. 337,
346-47 (1981).
12
Finally, Spellmon argues that he has alleged a valid claim
for retaliation under the First and Fourteenth Amendments.
Spellmon contends that all the acts of defendants alleged in his
complaint were motivated by retaliation, primarily in response to
his litigation activities. Spellmon points to his allegation
that, eight days prior to filing a false disciplinary report
against Spellmon, Willmore stated to an inmate who asked if
Spellmon was in trouble, “He filed a grievance on me.” Spellmon
also contends that support for his retaliation claim lies in his
allegations that Thomas wanted him confined in close custody
because he was a “pain in the ass,” that Carroll arbitrarily
terminated his law library access, and that Carroll initiated a
false report upon being disappointed that he didn’t find
marijuana or cash in Spellmon’s cell.
The law is clearly established in this circuit that “a
prison official may not retaliate against or harass an inmate for
exercising the right of access to the courts, or for complaining
to a supervisor about a guard’s misconduct.” Woods v. Smith, 60
F.3d 1161 (5th Cir. 1995), cert. denied sub nom. Palermo v.
Woods, ___ U.S. ___, 116 S. Ct. 800 (1996). Prisoner claims of
retaliation, however, must be “carefully scrutinize[d].” Id. at
1166. “‘Claims of retaliation must . . . be regarded with
skepticism, lest federal courts embroil themselves in every
disciplinary act that occurs in state penal institutions.’” Id.
(quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), cert.
13
denied, ___ U.S. ___, 115 S. Ct. 1371 (1995)). An inmate bringing
a retaliation claim “must allege the violation of a specific
constitutional right and be prepared to establish that but for
the retaliatory motive the complained of incident . . . would not
have occurred. This places a significant burden on the inmate.”
Id. (citations omitted).
The district court did not expressly consider any
allegations other than Carroll’s dissatisfaction with the cell
search when it concluded that Spellmon’s allegations of
retaliation were inadequate. Having considered all allegations
which Spellmon argues on appeal constitute a sufficient legal
basis for his retaliation claim, we conclude that the district
court’s dismissal was appropriate.
We note initially that Spellmon’s general allegation that he
had a reputation throughout the Texas Department of Criminal
Justice as a “writ-writer” is, without more, insufficient to
establish that the adverse disciplinary actions would not have
been taken but for the retaliatory motive. As to Willmore,
Spellmon’s only other relevant factual allegation concerns
Willmore’s comment to another prisoner about Spellmon filing a
grievance against him. The mere fact that this isolated remark
was made eight days prior to Willmore’s filing of the allegedly
false disciplinary report does not give rise to a reasonable
inference that the disciplinary report was motivated by
retaliation for the grievance. Neither does Carroll’s alleged
14
threat to file a report against Spellmon if Spellmon filed a
grievance against him, made three days after Carroll filed the
possession of contraband disciplinary report, support Spellmon’s
claim that any action actually taken by Carroll was retaliatory.
Spellmon’s contention that Carroll filed the disciplinary report
because he was disgruntled about not finding any marijuana or
cash in Spellmon’s cell is not only pure speculation, but also
fails to assert that the alleged retaliation was in response to
the exercise of a constitutional right. Spellmon’s argument
concerning Thomas’s desire to place him in close custody is also
inadequate to support a retaliation claim because Thomas’s
alleged comments are not alleged to have resulted in any adverse
action.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
15