IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40644
Summary Calendar
ZACHARY L. KNIGHTEN,
Plaintiff-Appellant,
versus
L. JOHN, Senior Warden; D.H. OLIPHANT, Asst. Warden;
UP SIMMONS, Ex-Asst. Warden; K. GASTON, Major;
B. DRIVER, Disciplinary Captain; UP BROWN, Ex-Captain;
UP MADDOX, Sergeant; UP MORVANT, Sergeant; UP HOWELL,
Lieutenant; UP HERNANDEZ, Sergeant; UP RIVERS, CO3;
UP REESE, CO3; UP WILLIAMS, Gang Officer; UP WALLINGS,
Ms, Sub-Counsel; UP POUSSON, CO3; UP DRIVER, Ms, Mailroom
Supervisor; UP JOHNSON, Ms, Property Officer; UP SMITH,
Ex-Property Officer/Sergeant; UP BYRLY, CO3;
UP WHITFIELD, CO3,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:97-CV-307
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April 29, 1999
Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Zachary Knighten appeals the district court’s denial of his
motion for class certification and the district court’s dismissal
of his pro se, in forma pauperis 42 U.S.C. § 1983 civil rights
action as frivolous and for failure to state a claim upon which
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
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relief could be granted. See 28 U.S.C. § 1915(e)(2)(B)(i) &
(ii); see also § 1915A(b)(1). We review § 1915(e)(2)(B)(i)
dismissals for abuse of discretion, see Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997), and § 1915(e)(2)(B)(ii) dismissals
de novo. See Black v. Warren, 134 F.3d 732, 733 (5th Cir. 1998).
Knighten has abandoned the following issues for failure to
adequately brief them on appeal: (1) that the district court
abused its discretion by denying Knighten’s motion for class
certification (2) that defendants Pousson, Johnson, Smith, and
Whitfield retaliated against him; (2) that defendants Hernandez,
John, Oliphant, Gaston, Driver, Brown, and Wallings, violated his
due process rights; and (3) that defendant Whitfield violated his
First Amendment right to free speech. See Fed. R. App. P. 28(a);
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); see also
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Knighten argues that defendants Hernandez, Morvant, and
Howell retaliated against him. “To state a claim of retaliation,
an inmate 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.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1996).
“This places a significant burden on the inmate.” Id. The
inmate must produce direct evidence of motivation or allege a
chronology of events from which retaliation may plausibly be
inferred. Id.; see also Whittington v. Lynaugh, 842 F.2d 818,
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821 (5th Cir. 1988). With regard to defendant Hernandez,
Knighten argues that Hernandez retaliated against him by failing
to investigate his case against defendant Pousson because
Knighten filed a grievance against Hernandez. These arguments
are without merit inasmuch as Knighten concedes that Hernandez
was unable to investigate the case because he was involved in it
and Knighten filed the grievance against Hernandez after the
incident occurred.
Knighten contends that defendants Morvant and Howell
violated his due process rights during an incident occurring in
the prison infirmary, and in the disciplinary hearing following,
in retaliation against him because Knighten had previously filed
grievances against them. Knighten contends that defendant
Morvant did not listen to his complaints regarding the charging
officer in that incident, and that defendant Howell would not let
him present evidence at his disciplinary hearing. 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)(citations omitted).
Inasmuch as Knighten recieved 15 days of cell restriction
for the foregoing incident, he has not asserted that the
disciplinary conviction imposed atypical and significant
hardships on him in relation to the ordinary incidents of prison
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life. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
1997)(thirty day commissary and cell restrictions imposed as
punishments do not implicate due process concerns and are in fact
merely changes in the conditions of confinement). Because
Knighten’s disciplinary conviction did not give rise to
protections afforded by the Due Process Clause, Knighten has
failed to show that defendants Morvant and Howell’s actions were
in retaliation against him. The magistrate judge did not abuse
its discretion by dismissing Knighten’s retaliation and due
process claims; therefore, the magistrate judge’s dismissal is
AFFIRMED with regard to these claims.
Knighten alleges that while he was on cell restriction a
fight started in his cell block and after the fight was over,
defendant Howell dispensed tear gas without just cause. The
magistrate judge construed Knighten’s argument as complaining of
the conditions of his confinement. However, based on our review
of the record, Knighten’s argument can also be construed as
complaining of use of excessive force by defendant Howell in
violation of the Eighth Amendment.
Accepting Knighten’s allegations as true, as we must,1 we
conclude that the district court erred in dismissing his
complaint. To the extent that Knighten complains that he
suffered physical harm as a result of being exposed to tear gas
unnecessarily dispensed by Howell, he has stated a claim under
the Eighth Amendment sufficient to proceed further. See Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992); see also Jackson v.
1
Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993).
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Culbertson, 984 F.2d 699, 700 (5th Cir. 1993); see also Hudson v.
McMillian, 962 F.2d 522, 523 (5th Cir. 1992); Clemmons v. Greggs,
509 F.2d 1338, 1340 (5th Cir. 1975). The dismissal of the
complaint is vacated with regard to Knighten’s Eighth Amendment
claim against defendant Howell, and the case remanded for further
proceedings.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.