IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50268
(Summary Calendar)
ROBERT AARON WILLIAMS,
Plaintiff-Appellant,
versus
TIMOTHY EARY, An Officer-Co. III,
ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(W-94-CA-380)
( August 9, 1995)
Before WIENER, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:*
In this appeal from a judgment of the district court
dismissing his civil rights lawsuit, Plaintiff-Appellant Robert
*
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should not be published.
Aaron Williams, an inmate of the Hughes Unit of the Texas
Department of Criminal Justice, Institutional Division (TDCJ),
claims that the district court abused its discretion. As
defendants in the action, Williams named Correctional Officers
Timothy W. Eary and Tommy A. Gober and Captain Raul J. Mata of
Hughes Unit. In his 42 U.S.C. § 1983 complaint, Williams sought
both money damages and declaratory and injunctive relief, including
restoration of "good time" taken from him as a result of the
complained-of disciplinary conviction. Finding no reversible
error, we affirm.
I
FACTS AND PROCEEDINGS
Williams alleged in his complaint that Officer Gober ordered
him to get a haircut, and that after Williams did so, Officer Eary
charged him in a disciplinary report "for refusing to cut the top
of his hair." Williams asserts first that he did not control the
haircut he received and second that he could not correct it because
he had to report for work. He also alleged that two other TDCJ
officials were of the opinion that the haircut met TDCJ grooming
guidelines.
At Williams' disciplinary hearing, Captain Mata found him
guilty of a major rule infraction and as punishment took some
accumulated "good time" from him. Williams took appeals through
the grievance procedure but they were denied.
The magistrate judge ordered Williams to amend his complaint,
"to state specific facts demonstrating a constitutional violation."
2
Williams subsequently filed a lengthy document, Part I of which is
entitled "Judgment Consideration." In it he alleged relevant facts
in greater detail and he stated various propositions of law.
Williams alleged that he got a haircut as ordered by Gober, but
that after he left the barber shop, he was told by Gober that he
was "going to drop a dime" on Williams, terminology that Williams
purportedly did not understand. Officer Eary then took over,
telling Williams, "I don't like your cut." Williams replied that
it was in accordance with the guideline book.
Eary allegedly told Williams to stand by a wall, but after
standing there for about 12 minutes, Williams heard the call to
return to work. Eary told Williams either to go get another
haircut or to give Eary his (Williams') ID card; however, Williams
decided that going to work was more important, so he did.
A few days later, Eary charged Williams with refusal to obey
a direct order. At the disciplinary hearing, Captain Mata found
Williams guilty. On appeal, the warden upheld the verdict. The
warden found, based on the disciplinary report, that Williams had
refused to cut the top of his hair, i.e., to comply with the
grooming guidelines. The warden noted further that Williams "made
no request for witnesses at the time of service or during the
hearing," and that his evidence was sufficient.
After affirmance by the Regional Director at Step 2,
Williams appealed to the Deputy Director. Williams alleged that he
did not disobey the order to get a haircut, but that "[t]he entire
ordeal was staged," planned by Gober and Eary. The Deputy Director
3
denied Williams' appeal for reasons similar to those of the Warden,
adding that Williams had the opportunity to present his defense at
his hearing.
The district court noted that Williams had "filed a `Judgment
Consideration' that appears to be an Amended Complaint," but
concluded that it "adds nothing to Plaintiff's previous claims."
The court treated this document as Williams' objections to the
magistrate judge's report. The court dismissed the action on
grounds that Williams' "allegations raise, at best, a defense to
the underlying disciplinary charge, i.e.[,] that his violation of
the TDCJ rules was unintentional because he had gotten a haircut."
II
ANALYSIS
In Williams' lengthy appellate brief, only a small part of
which is relevant, the closest he comes to stating an issue is that
he should not have been convicted of the disciplinary violation
because he had the right to refuse the second haircut, i.e., his
first haircut that day was in accordance with the TDCJ rules. In
effect, Williams is contending that the evidence was insufficient
to support his disciplinary board conviction. Both in the district
court and in his appellate brief, however, he concedes that he
violated Officer Eary's order to get a second haircut. Williams'
contention lacks merit because his conviction is supported by "some
facts," by considerably more evidence than "any evidence at all."
See Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981), cert.
denied, 455 U.S. 992 (1982).
4
The only case cited by Williams that is even remotely relevant
is Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993). In that case, the
court held that the district court's finding that Iowa prison
officials did not have a legitimate penological interest in
prohibiting shag haircuts was not clearly erroneous. We, however,
have upheld TDCJ's grooming code, including the prohibition of
inmates' allowing their hair to grow long. Powell v. Estelle, 959
F.2d 22, 23 (5th Cir.), cert. denied, 113 S. Ct. 668 (1992).
Williams states that, at the beginning of his disciplinary
hearing, his request for a witness was denied. He does not,
however, reveal the name of the proposed witness or the content of
the testimony that the witness may have given. Moreover, this
allegation is in conflict with the Warden's finding that Williams
"made no request for witnesses at the time of service [of the
disciplinary report on him] or during the hearing." We will not
consider this issue, because Williams has not argued it as an issue
in his brief. See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.),
cert. denied, 498 U.S. 966 (1990).
In an apparent reference to Eary and Gober, Williams asserts
that "the two officer[s]" deliberately caused the violation by
giving him the Hobson's Choice of either refusing the order to get
a haircut or missing work. This is contradicted to some extent by
allegations of Williams' amended complaint to the effect that
Officer Eary "took over" after Officer Gober told Williams he was
"going to drop a dime" on him. Assuming that Williams is now
alleging a conspiracy, we shall not address it because Williams did
5
not present such a theory to the district court.1 "[I]ssues raised
for the first time on appeal are not reviewable by this court
unless they involve purely legal questions and failure to consider
them would result in manifest injustice." Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991) (internal quotation marks and
citations omitted).
"An in forma pauperis complaint may be dismissed as frivolous
[pursuant to 28 U.S.C. § 1915(d)] if it lacks an arguable basis in
law or fact." Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
"Dismissal with prejudice [is] appropriate if the plaintiff has
been given an opportunity to expound on [his] factual allegations
. . . but does not assert any facts which would support an arguable
claim." Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993).
We review § 1915(d) dismissals "utilizing the abuse of
discretion standard." Id. at 317. When we do so here we conclude
that the district court did not abuse its discretion when it
dismissed Williams' action with prejudice, because his amended
complaint shows that he failed to allege "any facts which would
support an arguable claim." Id. at 319.
AFFIRMED.
1
In his "Judgment Consideration" Williams mentions the terms
"plots" and "conspiracy," but they are in a paragraph of gibberish
devoid of any factual allegation tending to show a conspiracy.
6