IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40098
(Summary Calendar)
RODNEY ARTHUR KEATON,
Plaintiff-Appellant,
versus
CAROL VANCE, Chairman of
Texas Department of Criminal
Justice Board, in his individual
and official capacity, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:94-CV-196)
(May 18, 1995)
Before DUHÉ, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Rodney Arthur Keaton, an inmate of the
Texas Department of Criminal Justice (TDCJ), appeals the district
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
court's dismissal as frivolous under 42 U.S.C. § 1915(d), of his
civil rights complaint filed pro se and in forma pauperis (IFP)
under 42 U.S.C. § 1983, against numerous officials at TDCJ Coffield
Unit. Keaton alleged that his federal constitutional rights were
violated when he was disciplined for using prison property without
authorization. He also alleged violations of Texas state law.
Finding no reversible error, we affirm.
I
FACTS AND PROCEEDINGS
The following relevant facts are taken from Keaton's
complaint, testimony adduced at a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), and documentary evidence
submitted at the hearing. Keaton was employed at the prison's
metal fabrication plant and was supervised by Defendant-Appellee
Connie Gannon. On April 6, 1993, Keaton used a copy machine at the
plant to copy a publication entitled The Art of Making Leather
Cases. When Defendant-Appellee Phil Fenton, another supervisor at
the plant, saw Keaton making copies and told him to destroy them,
Keaton complied.
According to Keaton, Gannon subsequently told him that he
could make copies as long as there was not "a crowd" around.
During the lunch hour, Keaton made one copy of the book and left it
in the office area near the copy machine. He did not work at the
plant the following day but "went to work as normal" on April 8.
Several copies of the book were found in the office area.
Keaton was questioned by the assistant warden, Defendant-Appellee
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James Duke, and was reassigned pending an investigation. On April
23, Keaton was served with an offense report filed by Defendant-
Appellee Jerry Lowe, alleging that Keaton used the copy machine
without proper authorization to make approximately seven copies of
the book. Lowe stated that he saw Keaton using the copy machine on
April 8.
A hearing was held on April 26, and Keaton was appointed
counsel substitute. In a statement to the disciplinary committee,
Gannon stated that he did not give Keaton permission to make copies
of the book. Keaton was found guilty, assessed 15 days in solitary
confinement and $133, the cost of the copies.
The magistrate judge recommended that Keaton's complaint be
dismissed as frivolous pursuant to 28 U.S.C. § 1915(d). The
magistrate judge also recommended that the district court decline
to exercise pendant jurisdiction over Keaton's state law claims.
After reviewing Keaton's objections, the district court adopted the
magistrate judge's recommendations and dismissed Keaton's complaint
with prejudice.1 Keaton filed a motion for reconsideration which
the district court denied, after which Keaton timely appealed.
II
ANALYSIS
Keaton contends that the district court erred by dismissing
his complaint as frivolous. An IFP claim that has no arguable
1
In addition to the above-named Defendants-Appellees,
Keaton's complaint named as defendants, Carol Vance, the TDCJ Board
Chairman who allegedly promulgated TDCJ disciplinary policies and
rules, Gary Griggs, the Unit Disciplinary Captain, and James Shaw,
the Warden of the Coffield Unit.
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basis in law or fact may be dismissed as frivolous. 28 U.S.C.
§ 1915(d); Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). Our
review of such a dismissal is for abuse of discretion by the
district court. Id.
Keaton insists that his due process rights were violated when
he was disciplined for using the copy machine. He claims that
Gannon lied when he stated that he did not give Keaton permission
to make a copy of the book and that Lowe lied when he stated that
he observed Keaton making copies on April 8th. Keaton argues that
he had a liberty interest in not having false statements presented
against him at the evidentiary hearing, citing United States v.
Wallace, 673 F.Supp. 205, 207 (S.D. Tex. 1987) (civil rights case
stating in dicta that an inmate "possesses a liberty interest in
not having false statements, reports and evidence presented at
. . . official proceedings"). Keaton further argues that he had
"no fair warning and discriminatory enforcement of a vague,
unreasonably, arbitrary, ambiguous and unconstitutional law,
policy, practice and customs."
The standard of due process for prison disciplinary
proceedings depends on the sanction imposed and the resulting
consequences. Keaton was penalized by solitary confinement, so he
was entitled to the procedural protections set forth in Wolff v.
McDonnell, 418 U.S. 539 (1974). See Murphy v. Collins, 26 F.3d
541, 543 (5th Cir. 1994). Keaton was therefore entitled to
(1) written notice of the charges against him at least twenty-four
hours before the hearing; (2) a written statement of the fact-
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finders as to the evidence relied on and the reasons for the
disciplinary action taken; and (3) the opportunity to call
witnesses and present documentary evidence in his defense, unless
these procedures would create a security risk in the particular
case. Wolff, 418 U.S. at 563-66.
That does not mean that Keaton was entitled to error-free
decision-making. See McCrae v. Hankins, 720 F.2d 863, 868
(5th Cir. 1983). In the context of prison disciplinary
proceedings, a finding of guilt requires only the support of "some
facts" or "any evidence at all." See Gibbs v. King, 779 F.2d 1040,
1044 (5th Cir.), cert. denied, 476 U.S. 1117 (1986). Assuming
without granting that Keaton had a protected liberty interest in
not having false statements presented at the disciplinary hearing,
he has not shown that the statements in question were false.
Keaton's contention that he had permission to make copies was
directly controverted by the defendants. Thus, there was "some
evidence" to support the disciplinary action.
Regarding Keaton's assertion that he was not given "fair
warning," Keaton acknowledged in his complaint that he was served
with the disciplinary report three days before the disciplinary
hearing. Insofar as Keaton attempts to argue that he was punished
under an "unconstitutional law," he has failed to make any
cognizable legal argument in support of this claim (cf. Gibbs,
779 F.2d at 1045, addressing specific constitutional challenge to
prison policy). Although we liberally construe pro se briefs, see
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L.Ed.2d 652
5
(1972), we require arguments to be briefed in order to be
preserved. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Keaton also urges that the assessment of $133 violated due
process "regarding the determination of the amount of those
damages." He suggest that he had no opportunity to challenge the
assessed punishment of $133 for "damages to state property" because
he was charged under a different regulation, "use without proper
authorization." The record does not support his contention; the
record reveals that the $133 amount was determined prior to the
disciplinary hearing by charging Keaton 85 cents for the first
page, and 15 cents for approximately 800 pages thereafter.
Keaton next contends that the Defendants-Appellees failed to
follow their own rules regarding prison discipline, but he fails to
specify which regulations were not followed. Without more, an
alleged violation of a prison regulation does not give rise to a
constitutional violation. Hernandez v. Estelle, 788 F.2d 1154,
1158 (5th Cir. 1986).
Further, Keaton makes several objections to the procedures
employed in reviewing his complaint. He insists that: (1) his
allegations were not construed in the light most favorable to him;
(2) the "harm" caused to him was de-emphasized; (3) his factual
allegations erroneously were found to be fanciful and delusional;
and (4) his complaint was held to a heightened-pleading
requirement. He also asserts that his complaint should not have
been dismissed before it was served.
Keaton's arguments are based on the erroneous assumption that
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his complaint was dismissed as factually frivolous. The dismissal
of Keaton's complaint was not dismissed on the lack of a factual
basis, but on the "lack [of] any valid basis in law." Moreover,
§ 1915 specifically mandates dismissal prior to service. See
28 U.S.C. § 1915.
Finally, Keaton states that he is unsure if the district
court's dismissal operated to remand his complaint to state court;
therefore, he requests that this court remand his complaint to
state court "for determination of State Law Claims."
Although he cited Texas statutes in his complaint, Keaton did
not identify his state law claims. If he desires to pursue a state
claim, he should file an original complaint in the appropriate
state forum.
AFFIRMED.
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