IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10352
Summary Calendar
JIMMY ROY DAVIDSON
Plaintiff-Appellant,
versus
OSCAR STRAIN, ET AL.,
Defendants
RONALD D. DREWRY; J.V. YOUNG, Warden;
C.C. BELL, Assistant Warden;
C. RAINES, Assistant Warden,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(1:95-CV-144)
November 21, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff Jimmy Roy Davidson, Texas Prisoner #612588, appeals
the district court’s dismissal of his claims against the warden and
other officials of his state prison unit. Davidson’s First Amended
Complaint challenges the constitutionality of a disciplinary
*
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this opinion should not be published and is not precedent except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.
hearing and subsequent imposition of thirty days cell restriction,
thirty-two days property restriction, and thirty-two days
commissary restriction. The court below dismissed Davidson’s
claims against Assistant Wardens C.C. Bell and C. Rains because
there were no pleadings that they “in any capacity participated in
any matter involving the disciplinary hearing.” (Order dated Feb.
5, 1996). The court then dismissed defendants Drewry and Young
because there were “no pleadings [that they] participated in any
matter involving an excessive use of force or an assault on the
Plaintiff.” (Order dated March 12, 1996).1 Finally, the court
issued an Order to Issue Summons After Pretrial Hearing on March
12, 1996, ordering defendants Drewry and Strain to file responsive
pleadings but dismissing Drewry in his individual capacity and
Young in every capacity from the case. Davidson appeals these
decisions of the district court.
Whether or not the district court correctly found lacking
allegations that defendants C.C. Bell, C. Raines, Drewry and Young
participated in the acts about which Davidson complains,
plaintiff’s complaints were correctly dismissed as frivolous
because they lack arguable legal basis and fail to state a claim.
1
Davidson’s First Amendment Complaint makes no mention of
excessive use of force or assault. The district court’s confusion
as to the facts in Davidson’s complaint is understandable given the
plethora of litigation this plaintiff currently has before the
federal courts. As we review de novo a district court’s dismissal
for failure to state a claim, we reexamine the record for any
possible claims against Drewry or Young.
2
See 28 U.S.C. § 1915(d); 42 U.S.C. § 1997e(c)(1); Fed.R.Civ.P.
12(b)(6). 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). Davidson’s cell, property and commissary restrictions
cannot be said to impose a more atypical or significant hardship
than that involved in Sandin. Id. Furthermore, Davidson does not
allege that he has lost any good-conduct time as a result of this
episode. His claims are simply not actionable under 42 U.S.C. §
1983. Luken v. Scott, 71 F.3d 192, 193-94 (5th Cir. 1995), cert.
denied, 116 S.Ct. 1690 (1996).
Davidson is also not entitled to relief on grounds that these
are state-law negligence claims sustainable under pendent
jurisdiction over the Ruiz2 consent decree. Such claims are barred
by Eleventh Amendment immunity, which the state did not waive by
agreeing to a consent decree in another case. See Green v.
McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986) (no waiver effected
by the Ruiz consent decree); Pennhurst State School & Hospital v.
2
Ruiz v. Estelle, 503 F. Supp. 1265 (1980), aff’d in part,
rev’d in part, 679 F.2d 1115, amended in part, vacated in part, 688
F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983).
3
Halderman, 465 us 89, 121 (1984) (no pendent jurisdiction over
claims otherwise barred by Eleventh Amendment immunity).
The district court’s March 12 order compelling Drewry and
Strain to file responsive pleadings was not appealed by them is not
final for the purposes of Rule 54. Fed.R.Civ.P. 54(b). We express
no opinion as to whether Davidson’s claims against Drewry (in his
official capacity) and Strain are frivolous given the Supreme
Court’s Sandin framework.
AFFIRMED.
4