UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-40117
(Summary Calendar)
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JOSEPH H. WILLIAMS,
Plaintiff-Appellant,
versus
ALFONSO CASTILLO, ET AL.,
Defendants-Appellants.
_______________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
(6:94 CV 569)
_______________________________________________
(August 23, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Joseph Williams, an inmate of the Texas Department of Criminal
Justice's Institutional Division ("TDCJ-ID"), filed a pro se, in
forma pauperis appeal of the district court's dismissal of his
civil rights suit against prison officials and the Attorney General
of Texas, Dan Morales. We affirm.
I
*
Local Rule 47.5.1 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opinion should not be published.
Joseph Williams contends that prison officials denied him due
process of the law because he was subject to two disciplinary
hearings classified as "major" in violation of TDCJ-ID's
Disciplinary Rules and Procedures for Inmates. Rule I.B.1 states
that in a "major" disciplinary hearing, an inmate faces the
possibility of losing good-time credit or of moving to a lower
time-earning class, risks that an inmate does not run in a "minor"
disciplinary hearing. Rule I.B.3 states that: "The final decision
as to whether a disciplinary hearing will be classified as major or
minor will be made by the officer in charge (Building Major or
Captain)."
Prison officer Keith Wagnon classified Williams' first
disciplinary hearing as "major," and prison officer Alfonso
Castillo classified the second as "major." Neither Wagnon nor
Castillo was a building major or captain at the time. Williams
filed suit against Wagnon and Castillo under 28 U.S.C. § 1983
(1988), and also named as defendants E.W. Smith, the prison
official who presided over both of Williams' disciplinary hearings,
and Dan Morales, the Attorney General for the State of Texas.
Williams alleged that Wagnon and Castillo's actions amounted to
cruel and unusual punishment that deprived him of due process under
the law, and requested both punitive and compensatory damages. The
district court dismissed Williams' § 1983 claims under 28 U.S.C.
§ 1915(d) (1988), holding (1) that the language of Rule I.B.3 is
not the type of mandatory language that creates a liberty interest,
and (2) that even if the language did create a liberty interest,
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Williams had received due process in his hearings. Williams
appeals, challenging the district court's holding on both grounds.1
A district court may dismiss an in forma pauperis complaint
"if the action is frivolous or malicious." 28 U.S.C. § 1915(d)
(1988). A suit is frivolous under § 1915(d) if it lacks an
arguable basis in law or fact. Denton v. Hernandez, 504 U.S. 25,
___, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340 (1992). We review
§ 1915(d) dismissals for abuse of discretion. Ancar v. Sara
Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992).
Williams claims that because the language of the prison
regulations at issue is mandatory, the regulations create a liberty
interest in having a building major or captain classify
disciplinary hearings as major or minor. He cites as support the
Supreme Court's decision in Hewitt v. Helms, 459 U.S. 460, 103 S.
Ct. 864, 74 L. Ed. 2d 675 (1983). In its determination of whether
a prison guideline created such an interest, the Court in Hewitt,
"[i]nstead of looking to whether the State created an interest of
`real substance,'" such as a loss of good-time credit, "asked
whether the State had gone beyond issuing mere procedural
guidelines and had used `language of an unmistakably mandatory
character.'" Sandin v. Conner, No. 93-1911, 1995 WL 260217 at *4
(U.S. June 19, 1995) (quoting Hewitt, 459 U.S. at 471-72, 103 S.
1
In his brief on appeal, Williams argues that the prison officials
conspired to retaliate against him for having exercised his right to seek redress
from the prison grievance system and the courts. We need not address this claim
because Williams did not raise it in his original complaint, amended complaint,
or Spears hearing, and because it is not a purely legal question. See Varnado
v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (holding that we will not review
issues raised for the first time on appeal unless the issues concern purely legal
questions and manifest injustice would result from our failure to consider them).
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Ct. at 871).
However, in a recent case, Sandin v. Conner, the Supreme Court
criticized its holding in Hewitt, stating that "[b]y shifting the
focus of the liberty interest inquiry to one based on the language
of a particular regulation, and not the nature of the deprivation,
the Court encouraged prisoners to comb regulations in search of
mandatory language on which to base entitlements to various
state-conferred privileges." Id. at *5. The Court noted that
"[c]ourts have, in response, and not altogether illogically, drawn
negative inferences from mandatory language in the text of prison
regulations." Id. The Court continued:
Such a conclusion may be entirely sensible in the
ordinary task of construing a statute defining rights and
remedies available to the general public. It is a good
deal less sensible in the case of a prison regulation
primarily designed to guide correctional officials in the
administration of a prison. Not only are such
regulations not designed to confer rights on inmates, but
the result of the negative implication jurisprudence is
not to require the prison officials to follow the
negative implication drawn from the regulation, but is
instead to attach procedural protections that may be of
quite a different nature.
Id.
For these and other reasons, see id. at *6, the Court
concluded that "the search for a negative implication from
mandatory language in prisoner regulations has strayed from the
real concerns undergirding the liberty protected by the Due Process
Clause." Id. While recognizing that states "may under certain
circumstances create liberty interests which are protected by the
Due Process Clause," the Court held that:
[Th]ese interests will be generally limited to freedom
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from restraint which, while not exceeding the sentence in
such an unexpected manner as to give rise to protection
by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.
Id. (citations omitted). Thus, under Sandin, Williams' claim that
the prison regulations at issue create liberty interests has no
arguable legal basis because it relies on the allegedly mandatory
nature of the regulations' language rather than the nature of the
deprivation he incurred as a result of the prison officials'
alleged violation of the regulations.
Even if we were to liberally interpret Williams' complaint as
containing the argument that Williams was denied due process
because the ultimate result of Wagnon's classifying Williams' first
offense as major was that Williams' ability to earn good-time
credit was impaired,2 Williams' claim for relief would still have
no arguable legal basis. Even if the impairment of an inmate's
ability to earn good-time credit is analogous enough to the loss of
good-time credit that it imposes an atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life, Williams received the same degree of due process in
his hearing that he would have been entitled to have received had
2
We construe liberally the briefs of pro se appellants. Price v.
Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988). However, because
Williams does not mention what punishment he received, if any, as a result of the
second disciplinary hearing, we cannot construe his complaint as containing a due
process claim based on the deprivation he incurred as a result of Castillo's
classifying Williams' second offense as major. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) ("Although we liberally construe the briefs of pro se
appellants, we also require that arguments must be briefed to be preserved."
(quoting Price, 846 F.2d at 1028 (5th Cir. 1988)).
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he lost good-time credit as a direct result of the hearing.3
III
For the foregoing reasons, we AFFIRM the district court's
§ 1915(d) dismissal of Williams' complaint.
3
An inmate punished with the loss of good-time credits must receive:
"(1) written notice of the charges against him at least twenty-four hours before
the hearing, (2) a written statement of the factfinders 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." Walker v.
Navarro County Jail, 4 F.3d 410, 412 (5th Cir. 1993) (citing Wolff v. McDonnell,
418 U.S. 539, 563-66, 94 S. Ct. 2963, 2978-80, 41 L. Ed. 2d 935 (1974)). The
district court expressly stated that Williams received "all of his due process
rights" under Wolff, and Williams neither challenges this conclusion nor argues
that he did not receive due process under Wolff.
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