United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-50665
Summary Calendar
SHIRLEY ANN CHARLES,
Plaintiff-Appellant,
versus
K. WOODY, Captain; S. HENSEN, Major; B. RUCKER, Warden; KELLIE
WARD, Step 2 Grievance Coordinator,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CV-286
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Shirley Ann Charles, Texas prisoner # 692618, appeals the
district court’s dismissal of her 42 U.S.C. § 1983 action for
failure to state a claim. See 28 U.S.C. § 1915A. Charles also
appeals the denial of her Federal Rule of Civil Procedure 59(e)
motion, as well as the denial of her motion under Federal Rule of
Civil Procedure 60(b)(6). Charles’s motion to supplement her
brief is GRANTED.
*
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opinion should not be published and is not precedent except under the limited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.
No. 05-50665
-2-
Charles was convicted of attempted extortion in a prison
disciplinary proceeding based on a letter in which Charles stated
that she needed financial assistance and had not received
financial assistance in some time. As a result of the
conviction, prison officials placed Charles on commissary
restriction for 45 days and changed her custodial classification.
Charles argues that the Texas Department of Criminal Justice
(“TDCJ”), in Administrative Directive 3.51, created a liberty
interest protected by the due process clause by prescribing rules
and procedures to be used in the prison context to reduce
incidents of extortion. Charles has not shown that the change in
her custodial classification is the type of “atypical and
significant hardship” which would give rise to a protected
liberty interest requiring any particular procedures. See Sandin
v. Conner, 515 U.S. 472, 484 (1995). Charles’s commissary
restrictions do not implicate due process concerns. See Madison
v. Parker, 104 F.3d 765, 767-68 (5th Cir. 1997). Charles has
failed to state a claim under the Due Process Clause. See
Sandin, 515 U.S. at 484. To the extent that Charles’s contention
that Administrative Directive 3.51 created a liberty interest,
which was the argument set forth in her Rule 60(b)(6) motion, can
be construed as a challenge to the denial of that motion, Charles
has failed to failed to show that the denial of her Rule 60(b)(6)
motion was an abuse of discretion. See Edwards v. City of
Houston, 78 F.3d 983, 995 (5th Cir. 1996).
No. 05-50665
-3-
Charles asserts that prison officials retaliated against her
by filing a disciplinary charge and convicting her for engaging
in constitutionally-protected speech. Because Charles has not
provided direct evidence of motivation, nor alleged a chronology
of events from which retaliation may plausibly be inferred, she
has failed to state a claim. See Tighe v. Wall, 100 F.3d 41, 42
(5th Cir. 1996).
Charles asserts that prisons may not punish inmates for
statements made in letters to outside persons that do not
implicate governmental interests. “A prison inmate is entitled
to his First Amendment right to freedom of expression so long as
it is not inconsistent with his status as a prisoner and does not
adversely affect a legitimate state interest.” Jackson v. Cain,
864 F.2d 1235, 1248 (5th Cir. 1989). Legitimate penological
interests include security, order, and rehabilitation. Adams v.
Gunnell, 729 F.2d 362, 367 (5th Cir. 1984). As documents
attached to her complaint show, Charles exaggerated her financial
need in her letter. We accord the widest possible deference in
the application of policies designed to maintain prison security
and preserve internal order, see McCord v. Maggio, 910 F.2d 1248,
1250-51 (5th Cir. 1990), and we are confident that the objective
of rehabilitation likewise is served by discouraging
misrepresentations regarding financial need. Charles has not
shown that the district court erred in dismissing her complaint
No. 05-50665
-4-
for failure to state a claim upon which relief can be granted.
See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
Charles contends that the district court erred in denying
her Federal Rule of Civil Procedure 59(e) motion, in which she
brought to the district court’s attention the provisions of TDCJ
Administrative Directive 3.51. She contends that there is no
evidence to support her conviction under such provisions.
Charles indicated, however, that TDCJ Administrative Directive
3.51 became effective after her disciplinary conviction. Charles
has not shown that the district court erred in denying her Rule
59(e) motion. See Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir.
2000). Because Charles has failed to show error, the judgment of
the district court is AFFIRMED.
The district court’s dismissal of the complaint counts as a
“strike” under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Charles is CAUTIONED that if
she accumulates three “strikes,” she will not be able to proceed
in forma pauperis in any civil action or appeal filed while she
is incarcerated or detained in any facility unless she is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
AFFIRMED; MOTION GRANTED; SANCTION WARNING ISSUED.