IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60355
Summary Calendar
CHARLES A. GRAYER Plaintiff-Appellant,
versus
ANN L. LEE; JOAN ROSS; PATTY LEGG;
LARRY HARDY; LT. DAWSON Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Mississippi
USDC No. 96-CV-143-D-B
September 18, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Charles A. Grayer, prisoner # 41489, is serving a life
sentence in the Mississippi prison system under a judgment not
challenged here. Grayer commenced this action, pro se and in forma
pauperis, against certain officials in the Mississippi prison
system under 42 U.S.C. § 1983, seeking monetary, declaratory and
injunctive relief. He challenges the constitutionality of a
*
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this opinion should not be published and is not precedent except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.
disciplinary hearing and subsequent classification hearing that
resulted in his assignment to “close confinement” within the prison
system.
Grayer’s complaint states that he appeared before a
disciplinary committee, of which Defendant Legg was chairperson, in
July, 1995. The disciplinary committee recommended a change in
Grayer’s status in the prison system to “close confinement.” The
committee based its decision on an alleged rule violation by Grayer
(constructing a “dummy” from two pillows and a T-shirt and hiding
it under his bed). Subsequently, Grayer was placed in close
confinement status by a confinement committee, of which Defendant
Legg was a member. Grayer challenges this action of the
confinement committee here.
Grayer argues that the change in his status was improper
because he did not receive an adequate hearing from the
disciplinary committee or from the confinement committee. He
argues that the disciplinary committee’s decision was unfair
because some of the evidence that he requested was not presented.
He further contends that his change in status was contrary to a
Mississippi Department of Corrections regulation that requires an
“impartial classification committee” because one of the people who
served at his disciplinary hearing also served on the
classification committee.
The district court dismissed Grayer’s complaint on its own
motion for failure to state a claim for which relief could be
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granted. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 12(b)(6); 42
U.S.C. § 1997e(c)(1). We review the dismissal for abuse of
discretion. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). In
reviewing the district court’s opinion, we note briefly that
Congress has recently changed the standard district courts use to
decide whether to dismiss such complaints.
Prior case law in this circuit held that an in forma pauperis
complaint should not be dismissed as frivolous under § 1915(d) on
the grounds that it fails to state a claim. Pugh v. Parish of St.
Tammany, 875 F.2d 436, 438-39 (5th Cir. 1989) (a complaint filed in
forma pauperis is not automatically frivolous within the meaning of
§ 1915(d) because it fails to state a claim, since this standard
fails to differentiate between outlandish legal theories and those
that are close but ultimately unavailing), citing Neitzke v.
Williams, 109 S.Ct. 1827, 1830-31 (1989). Dismissal of such
complaints was deemed proper only if the complaint had no basis in
law or fact. Id. However, recent amendments to 42 U.S.C. § 1997e
require a district court to dismiss prisoner § 1983 suits if the
court determines that the action does not state a claim for relief.
See Prison Litigation Reform Act of 1995, Pub. L. No. 104-134 [§
101(a)] [§ 803(d)], 110 Stat. 1321 (1996). This act became
effective on April 26, 1996, four days before the district court
dismissed Grayer’s complaint. However, we need not consider here
which law applies to Grayer’s complaint, because it must be
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dismissed regardless of which law is applied. Even after applying
a liberal construction to his complaint, Haines v. Kerner, 404 U.S.
519 (1972), Grayer is not entitled to relief because his challenge
to the disciplinary and confinement committee proceedings lacks an
arguable legal basis. It is thus “frivolous” for the purposes of
§ 1915(d) and may be dismissed regardless of whether the new
provisions of § 1997e apply.
A prisoner’s liberty interest is “generally limited to freedom
from restraints 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, 2295
(1995). The change in Grayer’s confinement status cannot be said
to impose a more atypical or significant hardship than that
involved in Sandin. In that case, an inmate was released from his
single-man cell only for one 50-minute period each day, during
which he remained isolated from other inmates and constrained by
leg irons and waist chains. Id. at 2305 (Breyer, J., dissenting).
The Supreme Court found no constitutional violation. Id. at 2295.
Nothing in the record suggests that Grayer’s “close confinement”
exceeds the restrictions approved in Sandin. Grayer’s allegations
of transfer to “close confinement” thus fail to allege a
constitutional violation. See Moody v. Baker, 857 F.2d 256, 257-58
(5th Cir.) (“An inmate has neither a protectable property nor
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liberty interest in his custody classification . . . .”), cert.
denied, 488 U.S. 985 (1988). Furthermore, unlike the Third Circuit
case cited in Grayer’s brief, no request for additional evidence
was made by either the disciplinary committee or Grayer during his
administrative hearing. See Woods v. Marks, 742 F.2d 770, 771 (3rd
Cir. 1984) (remanding on fact question of whether state officials
denied prisoner’s due process by refusing to permit him to call
witnesses at disciplinary hearing). Grayer’s claim that he was
denied due process has no basis in law.
Finally, Grayer does not challenge the district court’s
dismissal of his claim concerning the administrative remedy
procedure; accordingly, this court will not consider the issue.
Brinkman v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
The dismissal of Grayer’s complaint is AFFIRMED.
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