IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-9068
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CHARLES ANTHONY MITCHELL,
Plaintiff-Appellant,
versus
SHERIFF DEPARTMENT,
LUBBOCK COUNTY, TEXAS,
Defendant-Appellee.
No. 92-9069
CHARLES ANTHONY MITCHELL,
Plaintiff-Appellant,
versus
SHERIFF DEPARTMENT,
LUBBOCK COUNTY, TEXAS, and
SGT. KORN,
Defendants-Appellees.
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Appeals from the United States District Court for the
Northern District of Texas
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(June 28, 1993)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Charles Anthony Mitchell seeks leave to appeal in forma
pauperis ("IFP") the district court's dismissal of his complaints
under 42 U.S.C. § 1983 as frivolous under 28 U.S.C. § 1915(d). In
both actions, Mitchell contends that prison officials violated his
constitutional right to due process by placing him in lockdown
without a hearing. We hereby consolidate Mitchell's appeals
because they raise identical issues. For the reasons stated below,
we grant Mitchell's motions to appeal IFP, vacate the judgments of
the district court, and remand Mitchell's cases for further
proceedings consistent with this opinion.
I
Mitchell is a prisoner in the Lubbock County, Texas jail. He
alleges that on September 20, 1992, two guards ordered him to close
his cell door. Mitchell admits that he refused to obey the guards'
orders; to be sure, he told the guards that it was their job to
close the door. The guards charged Mitchell with disobeying orders
and with engaging in disruptive conduct. The guards then placed
Mitchell in lockdown. Two days later, prison officials notified
Mitchell that they were charging him with violating jail rules and
that the grievance committee would hold a hearing on the charges on
September 27. The hearing was delayed and Mitchell remained in
lockdown until October 8, 1992. The grievance committee held its
hearing on October 18, and found that Mitchell had refused to obey
direct orders and had engaged in disruptive conduct. Consequently,
the grievance committee punished Mitchell with fourteen days of
full restriction. Mitchell also alleges that prison officials kept
him on full restriction for three extra days.
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II
Mitchell has filed two complaints under 42 U.S.C. § 1983
alleging that the Lubbock County jail officials violated his civil
rights by placing him in lockdown without proper notice and a
hearing. Because he could not pay the court fees, Mitchell moved
the court to grant him IFP status in both cases. The district
court provisionally granted Mitchell leave to proceed IFP in both
cases, but it withheld service of process pending its review of his
complaints pursuant to 28 U.S.C. § 1915(d). Later the court
determined--on the basis of the pleadings alone--that Mitchell's
complaints were frivolous. Consequently, the district court
vacated Mitchell's provisional IFP status, denied his motions to
proceed IFP, and dismissed his complaints without prejudice.1
Mitchell filed timely notices of appeal with motions to
proceed IFP on appeal. Because the district court did not rule on
his motions to appeal IFP, Mitchell now seeks leave to appeal IFP.
1
As we have observed, the district court granted
"provisional" IFP, only to revoke IFP status upon finding the
plaintiff's claims frivolous. We take this opportunity to
suggest the preferred procedure. Initially, if the plaintiff's
financial status warrants it, IFP is granted and the case
docketed. Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).
This determination is based solely on the plaintiff's economic
status. Cay v. Estelle, 789 F.2d 318, 322 (5th Cir. 1986). If
the district court later finds that the complaint is frivolous,
the district court may dismiss the complaint under 28 U.S.C. §
1915(d). With respect to dismissals, although the Federal Rules
of Civil Procedure do not require it, a statement of its reasons
is highly beneficial for purposes of appellate review and can
often prevent a remand. See Moore v. Mabus, 976 F.2d 268, 270
(5th Cir. 1992); Jot-Em-Down Stores (JEDS) Inc. v. Cotter & Co.,
651 F.2d 245, 247 (5th Cir. 1981).
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Mitchell has submitted an affidavit alleging that he does not have
the funds to prosecute this appeal. Once the appellant's financial
condition is established, our inquiry is limited to whether the
appeal raises any non-frivolous issues. Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Because Mitchell's appeal is not
frivolous, we grant his motion to proceed IFP.
III
Our remand is prompted because, first, it is unclear from
Mitchell's pleadings whether the lockdown was for punitive reasons
and whether the lockdown entailed solitary confinement. We
recently held that the "use of punitive isolation without affording
due process is unacceptable and violates the 14th Amendment."
Pembroke v. Wood County, Texas, 981 F.2d 225, 229 (5th Cir. 1993).
In Pembroke, Wood County jail officials placed Pembroke in
isolation for five days for the purpose of punishing him without
affording him any due process protections. Here, Mitchell alleges
that he was placed in lockdown from September 20 until October 8.
Under Pembroke, if Mitchell was placed or maintained in isolation
for punitive reasons, then the prison officials may well have
violated his right to due process by failing to give an appropriate
notice and hearing.
We do not hold, however, that the Due Process Clause grants
Mitchell a liberty right to be confined within the general prison
population that the prison officials can take away only if they
follow procedures that satisfy the Due Process Clause. On the
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contrary, the Supreme Court has repeatedly found that prison
officials have broad administrative and discretionary authority
over the institutions they manage and that lawfully incarcerated
persons retain only a narrow range of protected liberty interests.
Prison officials need broad administrative authority because
running a prison is an "extraordinarily difficult undertaking."
Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979 (1974).
Thus, the Supreme Court has concluded that "to hold . . . that any
substantial deprivation imposed by prison authorities triggers the
procedural protections of the Due Process Clause would subject to
judicial review a wide spectrum of discretionary actions that
traditionally have been the business of prison administrators
rather than the federal courts." Meachum v. Fana, 427 U.S. 215,
225, 96 S.Ct. 2532, 2538 (1976).
The Supreme Court has "consistently refused to recognize more
than the most basic liberty interests in prisoners." Hewitt v.
Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869 (1983). It is beyond
question that "[l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights." Price v.
Johnson, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060 (1948). Thus, the
Supreme Court has long recognized that prison officials have the
authority to transfer an inmate to more restrictive quarters for
non-punitive reasons. Hewitt, 103 S.Ct. at 869 ("administrative
segregation is the sort of confinement that inmates should
reasonably anticipate receiving at some point in their
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incarceration"). The case before us differs from Hewitt only in
that Mitchell raises the non-frivolous contention--and from the
record before us, we cannot tell whether there is a basis for the
contention--that the prison officials placed Mitchell in isolation
for punitive reasons and not that he was segregated for
administrative reasons.
Finally, we should note that in addition to the Due Process
Clause itself, liberty interests that are recognizable under the
Fourteenth Amendment may also arise from the laws of the states.
Hewitt, 103 S.Ct. at 869. State laws and regulations can create
recognizable liberty interests by placing substantive limitations
on the discretion of a prison official. Olim v. Wakinekona, 461
U.S. 238, 249, 103 S.Ct. 1741, 1747 (1983).
We thus remand this case also because Mitchell contends--
aside from alleged rights emanating solely from the Due Process
Clause--that regulations of the Lubbock jail created protected
liberty interests. To create a recognizable liberty interest,
however, a state must do more than just create strict procedures
that decision-makers must follow; the state must also provide
"particularized standards or criteria" to guide the decision-maker.
Id.
On remand, further proceedings will serve to bring Mitchell's
factual and legal contentions into focus, including whether the
Lubbock jail regulations create any liberty interests relative to
Mitchell's claim. Should Mitchell wish to assert the double
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jeopardy contention he raises for the first time in his appellate
pleadings, he should amend his complaint to raise that contention
in the district court.
IV
For all of the foregoing reasons, the decision of the district
court is
V A C A T E D and R E M A N D E D.
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