IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40034
KEVIN UNDERWOOD,
Plaintiff-Appellant,
v.
ASA O. JEFFCOAT, Individually and in official capacity;
ROBERT HERRERA,Individually and in official capacity,
Defendants-Appellees.
_______________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:98-CV-600)
_______________________________
October 13, 1999
Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Kevin Underwood (“Underwood”) appeals the district
court’s judgment dismissing with prejudice his 42 U.S.C. § 1983
claim as frivolous and for failure to state a claim upon which
relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(I)
and (ii). We affirm.
I. Factual and Procedural Background
*
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this opinion should not be published and is not precedent except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.
Underwood is incarcerated at the Texas Department of
Criminal Justice (“TDCJ”) facility in Tennessee Colony, Texas.
For medical reasons, Underwood cannot perform jobs that involve
repetitive use of his hands. Nevertheless, at some point,
presumably in the Fall of 1996, he was assigned to a work detail
involving the repetitive use of his hands. Underwood filed a
grievance complaining about the assignment.
In a disciplinary hearing held on October 7, 1996, appellee
Asa O. Jeffcoat (“Jeffcoat”) found Underwood guilty, allegedly on
the basis of no evidence, of failing to appear for a work
assignment without a legitimate reason. As punishment, Underwood
was demoted in class status and subject to a 15 day cell
restriction.
The following day, in another disciplinary hearing, Jeffcoat
again found Underwood guilty of the same offense, allegedly on
the basis of the same dearth of evidence. This time, Underwood’s
class status sank to the lowest rank possible. He was also
sentenced to 30 days loss of privileges, which entailed 30 days
cell restriction (essentially solitary confinement), 30 days loss
of property and 30 days restrictions on use of the commissary.
That same day, October 8, 1996, Underwood filed his appeal.
Appellee Assistant Warden Robert Herrera (“Herrera”) denied the
appeal because he found that sufficient evidence supported the
conviction.
On December 4, 1996, Herrera issued a response to
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Underwood’s grievance, filed after his assignment to the improper
job detail. In the response, Herrera conceded that the job
assignment had been improper and agreed to change it. Herrera
refused, however, to overturn the convictions for disciplinary
violations.
On or about July 28, 1998, and almost a month after
Underwood spoke personally with the Deputy Director of Support
Services and the Regional Director, the disciplinary convictions
were expunged from Underwood’s record. His good time credits
were fully restored, though his class status was only partially
reinstated.
On September 30, 1998, Underwood filed this action. He is
proceeding pro se and in forma pauperis (IFP). He claims that
Jeffcoat and Herrera violated his procedural due process rights
in violation of 42 U.S.C. § 1983; he also asserted state law
claims. He prayed for compensatory damages for “personal
humiliation and mental anguish,” as well as for a declaratory
judgment, punitive damages, equitable relief, attorneys’ fees and
costs and an injunction fully restoring his class status.
The district court adopted the magistrate’s initial report
and recommendation and dismissed Underwood’s state law claims as
frivolous and for failure to state a claim. The district court
denied Underwood’s motion to amend his complaint to remove the
state law claims, and Underwood proceeded on his federal law
claims.
The district court ultimately disposed of the case when it
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adopted the magistrate’s second supplemental report and
recommendation and dismissed the federal law claims as frivolous
and for failure to state a claim. Following the magistrate’s
reasoning, the district court held that, under 42 U.S.C. §
1997e(e), Underwood could not bring a due process claim and
recover for mental anguish or emotional distress without an
allegation of prior physical injury.
The district court further denied Underwood’s request to
alter the judgment and to permit him to amend his complaint.
Underwood sought to remove allegations of being deprived of
eligibility for mandatory supervision, and to change his claim
for compensatory damages for personal injury to one of
compensatory damages for punishment wrongfully imposed.
Underwood timely filed his appeal.
II. Standard of Review
If an IFP claim lacks an arguable basis in law or fact, the
district court may dismiss it as frivolous. 28 U.S.C. §
1915(e)(2)(B)(I); see also Denton v. Hernandez, 504 U.S. 25
(1992); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
“A complaint lacks an arguable basis in law or fact if it is
‘based on an indisputably meritless legal theory,’ such as if the
complaint alleges the violation of a legal interest which clearly
does not exist.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997) (quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989)).
We review a district court’s decision to dismiss for failure
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to state a claim pursuant to § 1915(e)(2)(B)(ii) de novo, as we
would any dismissal under Federal Rule of Civil Procedure
12(b)(6). See Ruiz v. United States, 160 F.3d 273, 274 (5th Cir.
1998). Of course, we must assume the truth of all of the
plaintiff’s factual allegations, and we may uphold the lower
court “only if it appears that no relief could be granted under
any set of facts that could be proven consistent with the
allegations.” Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.
1999) (quoting McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d
158, 160 (5th Cir. 1995)).
III. Procedural Due Process Claim
As a preliminary procedural matter, we must determine
whether a § 1983 suit is the proper vehicle for Underwood’s
claim. Pursuant to Heck v. Humphrey, 512 U.S. 477, 487 (1994), a
prisoner cannot bring an action under § 1983 if “a judgment in
[his] favor . . . would necessarily imply the invalidity of his
conviction or sentence,” unless the conviction or sentence had
been overturned on appeal or otherwise invalidated. In Edwards
v. Balisok, 520 U.S. 641, 648 (1997), the Court extended the Heck
rule to a prisoner attacking a disciplinary proceeding that
resulted in the loss of good time credits; see also Clark v.
Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (“A prisoner . . .
cannot bring a § 1983 action seeking damages . . . based on a
‘conviction’ until that ‘conviction’ has been . . . expunged . .
. if a favorable judgment would ‘necessarily imply’ the
invalidity of the prisoner’s ‘conviction[.]’”).
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Here, Underwood’s two convictions for failing to appear for
work without a legitimate reason have both been expunged.
Therefore, he need not exhaust his state remedies and bring a
habeas action; a § 1983 suit is the proper vehicle for his
complaint.
Having surmounted the procedural bar to his due process
claim, however, Underwood stumbles across the substantive
obstacle: he has no protected liberty or property interest at
stake. It is axiomatic that the protections of the Due Process
clause do not attach unless state procedures threaten a protected
liberty or property interest. See Johnson v. Rodriguez, 110 F.3d
299, 308 (5th Cir. 1997) (“The protections of the Due Process
Clause are only invoked when State procedures which may produce
erroneous or unreliable results imperil a protected liberty or
property interest.”). And pursuant to Sandin v. Conner, 515 U.S.
472, 484 (1995), state-created liberty interests protected by the
Due Process clause are those which “impose[] atypical and
significant hardship[s] on the inmate[s] in relation to the
ordinary incidents of prison life.” See also Orellana v. Kyle,
65 F.3d 29, 32 (5th Cir. 1995) (“[W]hile, as Sandin noted,
prisoners retain constitutional remedies under the First and
Eighth Amendments and the Equal Protection Clause of the
Fourteenth Amendment, the ambit of their potential Fourteenth
Amendment due process liberty claims has been dramatically
narrowed.” (citation omitted)).
Disciplinary segregation, the freedom from which is the
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liberty interest Underwood identifies, is not so atypical or
significant a hardship that a prisoner’s freedom therefrom is a
protected liberty interest. See Sandin, 515 U.S. at 486 (“We
hold that Conner’s discipline in segregated confinement did not
present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest.”); Orellana,
65 F.3d at 32 (“Sandin itself involved disciplinary segregation,
a severe form of prison discipline, yet held that such
confinement, ‘though concededly punitive, does not present a
dramatic departure from the basic conditions of Conner’s
indeterminate sentence.’” (citing Sandin, 515 U.S. at 485)).
Since Underwood had no protected liberty interest in being
free from disciplinary segregation, he cannot state a claim for a
deprivation of procedural due process in the disciplinary hearing
that resulted in his wrongful conviction for failing to appear
for work without a legitimate reason. Underwood’s due process
claim has no basis in fact or law, as it relies on an
indisputably meritless legal theory. The district court did not
err, therefore, in dismissing Underwood’s action as frivolous and
for failure to state a claim. For this reason we affirm, and we
therefore need not reach the question of the proper construction
of § 1997e.
Because Underwood did not identify a liberty interest
cognizable under the Due Process Clause, the district court
likewise did not err in denying Underwood’s requests to amend his
complaint. Underwood’s suggested amendments would have been
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futile. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.
1998) (recognizing that the futility of an amendment is a
substantial reason to deny a request to amend).
Finally, Underwood’s contentions regarding his state law
claims are not properly before us. Underwood has not briefed
this issue, and he has therefore abandoned any claims he had with
respect to these issues. See Yohey v. Collins, 985 F.2d 222, 224
(5th Cir. 1993); Fed. R. App. Proc. 28(a)(9). Though Underwood
is proceeding pro se, we can only liberally construe the
arguments he makes; we cannot construct his arguments from whole
cloth.
IV. Conclusion
We AFFIRM the district court’s holding on the ground that
Underwood failed to state a claim upon which relief could be
granted.
AFFIRMED.
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