IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20363
Summary Calendar
ANTHONY MOORE, JR.,
Plaintiff-Appellant,
versus
ANTHONY BUTLER; RANDALL P. MEDLEY;
CARL D. VEST; HORACE W. FREZIA; CRAIG BARROW,
Defendants-Appellees.
__________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-1552
__________________________________________
March 17, 2000
Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
Anthony Moore, Jr., Texas prisoner # 517882, contends that the district court
erred in granting the defendants’ motion for summary judgment, dismissing his 42
U.S.C. § 1983 complaint. He alleges that he was subjected to the use of excessive
force by defendants Anthony Butler, Randall Medley, Carl Vest, and Craig Barrow,
that they conspired to fabricate a false disciplinary charge against him involving an
alleged incident, and that defendant Horace Frezia denied him due process of law by
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
finding him guilty of that disciplinary charge.
Moore has demonstrated the existence of a genuine issue of material fact with
respect to whether Officer Butler was acting in good faith to restore discipline or acting
maliciously without provocation at the time of the incident, and whether Officers Vest
and Barrow should have taken reasonable measures to protect him from Butler's use of
force. There are also genuine issues of material fact regarding the nature and extent of
Moore’s injuries, if any, arising out of the incident.
Moore has acquitted his burden of raising specific facts in his verified pleadings
reflecting the existence of a genuine issue for trial with respect to his claim against
Officers Butler, Vest, and Barrow. Accordingly, the district court erred in granting the
defendants’ motion for summary judgment, dismissing the claim against those officers.2
The district court did not err in dismissing Moore's claim against Officer Medley,
because Moore did not allege that Medley participated in or was present during the use
of force.3
Nor did the district court err in granting summary judgment on Moore's due
process claim stemming from the allegedly false disciplinary charge and hearing. An
inmate's allegation of factual innocence is not actionable under § 1983 if his
disciplinary proceeding was otherwise fair and adequate.4 The record reflects that
2
Celotex Corp. V. Catrett, 477 U.S. 317 (1986); Fed. R. Civ. Pro. 56(e); Hudson v.
McMillian, 503 U.S. 1 (1992).
3
Thompson v. Steele, 709 F.2d 381(5th Cir. 1983).
4
Collins v. King, 743 F.2d 248 (5th Cir. 1984).
2
Moore received the process due to him in connection with the disciplinary hearing.5
Moore has asserted no facts supportive of the charge that defendants conspired to
fabricate the disciplinary charge. He therefore has not stated a valid constitutional
claim.6 Further, neither placement in solitary confinement for fifteen days nor loss of
opportunity to earn good conduct time credits constitutes constitutional violations.7
The dismissal of the complaint is AFFIRMED IN PART, VACATED IN PART,
and the case is REMANDED for further proceedings respecting Moore’s claims
against Butler, Barrow, and Vest.
Moore’s request for appointment of appellate counsel is DENIED; his appeal
does not present exceptional circumstances warranting such an appointment.8
AFFIRMED IN PART, VACATED and REMANDED IN PART.
5
Banuelos v. McFarland, 41 F.3d 232 (5th Cir. 1995).
6
Wilson v. Budney, 976 F.2d 957 (5th Cir. 1992).
7
Martin v. Scott, 156 F.3d 578 (5th Cir. 1998); Luken v. Scott, 71 F.3d 192 (5th Cir.
1995).
8
Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982).
3