UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40307
Summary Calendar
KENNETH DWAYNE COLLINS,
Plaintiff-Appellant,
VERSUS
JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
FERNANDO E. FIGUEROA, Warden II, Asst Warden,
Coffield Unit, in individual capacity; PATRICK K.
VEST, Lt., Coffield Unit, in individual capacity,
JOE E. SATTLEWHITE, Property Officer, Coffield
Unit, in individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:93-CV-476)
December 15, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
*
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that this opinion should not be published.
Kenneth Dwayne Collins, a Texas Department of Criminal Justice
(TDCJ) prisoner, filed a 42 U.S.C. § 1983 complaint alleging that
prison officers searched his cell and seized his personal property
without confiscation papers. Collins also alleged that he was
transferred to institutional lockdown without cause.
Collins alleged that prison officers came onto his wing,
screaming and hollering, and searched his cell. Collins alleged
that following the shakedown of his cell, Lieutenant Vest
questioned him about his identity and residency, but Collins was
too upset to respond. Vest escorted Collins to the captain because
he refused to respond even after being tightly handcuffed. When he
returned to his cell, Collins found it in shambles and his gym
shoes, watch, dictionary and commissary identification card were
missing. Collins' tennis shoes and watch were ultimately returned
to him.
Collins alleged that, while on institutional lockdown, he did
not receive a proper diet, which caused him to lose weight and
suffer from stomach cramps, low blood sugar and headaches, that he
was denied daily showers, denied the right to attend religious
services and denied medical attention. He was also not allowed any
type of recreation and missed college classes.
The magistrate judge ordered Collins to file a more detailed
pleading. Collins filed an amended pleading in which he alleged
that Director Collins was liable for the acts of his subordinates,
that Fernando Figueroa denied his grievances without a proper
investigation, that Officer Vest had him placed in isolation
2
without cause and that Officer Sattlewhite failed to return his
personal property after receiving it.
The magistrate judge conducted a Spears1 hearing. The parties
consented to the magistrate judge handling all further proceedings
in the case. Collins testified at the hearing that the shakedown
of his wing was the result of an earlier disturbance in another
wing, which resulted in the whole block being locked down. Collins
understood that the officers were coming to the wing to lift the
lockdown and that they were searching everyone before they did so.
Collins' cell was searched along with everyone else's cell.
Collins testified that he was placed on "loss of privileges"
(LOP) because he had allegedly created a disturbance. He denied
that he had created a disturbance or had been disruptive. Collins
testified that he was not charged in writing prior to his transfer
to another wing. He explained that prisoners are usually sent to
"LOP" if they refused to work. Collins alleged that he was
medically assigned to work squad #1 at that time. Collins stated
that he had not refused to work and that his squad had not been
turned out to work.
Collins testified that he was told that he was being
transferred after the shakedown was completed. He believed that
Vest was responsible for his transfer because he told Collins that
"he had a place for me." Collins also believed Vest was
responsible because Vest took Collins to his superiors.
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
3
Collins testified that he sued James Collins because he was
the head of the institution, Figueroa because he failed to
investigate his grievances and Sattlewhite because he failed to
return his dictionary. He acknowledged that Sattlewhite had not
taken the dictionary, but contended that he was the property
officer who allegedly received the dictionary.
A representative of the institution testified that Collins was
not placed on LOP status and that Collins remained on institutional
lockdown after the transfer. Collins contended that he was
transferred from B-Wing, which is normally general population, to
the F-Wing, which was a permanent lock-down area. The
representative stated that he was not aware of the reason for the
transfer.
Following the Spears hearing, the magistrate judge dismissed
Collins' claims against James Collins and Officers Figueroa and
Sattlewhite as frivolous. The magistrate judge determined that
Collins' claims concerning his lost property did not support a due
process violation because he had an adequate state post-deprivation
remedy. However, the magistrate judge further determined that
Collins' claim that Vest had him transferred to punitive
segregation without a hearing stated an arguable constitutional
claim.
A trial was held before the magistrate judge. Following the
trial, but prior to the court's rendering a decision, Collins filed
a motion to amend his complaint to add Lieutenant Baker and Warden
Brock as defendants.
4
The magistrate judge filed a memorandum order in which he
reviewed the evidence presented at trial.2 The magistrate judge
stated that Collins testified that he wished to rest on the
allegations in his pleadings without offering further evidence and
then submitted himself for cross-examination. Collins admitted on
cross-examination that Vest did not escort him to the F-Wing, and
he did not know if Vest had ordered the move.
Vest testified that Collins refused to enter his cell after
the search and would state only that he wanted his property
returned. Vest brought him to the dayroom to see Captain Ingram
and Sergeant Baker. According to Vest, he had no further contact
with Collins that day and had no responsibility for his being
placed on lockdown.
Sergeant Baker testified that there had been considerable
racial tension in the jail in April 1993, and that the inmates on
both the "B" and "F" wing were on institutional lockdown. He
explained that during the lockdown period, prisoners on the "F"
wing no longer had a LOP status. Baker testified that he and
Ingram were talking to inmates in the dayroom to isolate the
inmates who were causing problems. Vest brought Collins to the
dayroom and reported that he had been uncooperative. Collins
refused to speak to Baker.
2
This Court was not provided with a trial transcript
because the magistrate judge denied Collins' request for a trial
transcript and he did not file a motion for a transcript with
this Court. Thus, the review of the testimony is based on the
magistrate judge's summary of the evidence.
5
Baker met with Major Brock, the officer in charge of the
building, and he ordered that Collins be transferred to the "F"
wing. Baker testified that the transfer was not punitive, but
merely a reclassification of a recalcitrant inmate. He conceded
that Collins did not receive a disciplinary charge in connection
with the transfer. Collins again testified and pointed out a
statement in a response to one of his grievances that he had been
transferred for disruptive behavior. Baker testified that the
inmates on both wings were treated the same during institutional
lockdown. He acknowledged that the "B" wing would be released from
institutional lockdown prior to the release of the "F" wing.
The magistrate judge determined that Collins was not entitled
to notice and a hearing prior to the transfer because he was not
placed in segregation, but was merely moved to another area of the
jail that was also on institutional lockdown. The magistrate judge
further concluded that Collins had failed to prove that Vest was
involved in the transfer.
The magistrate judge determined that Collins had failed to
prove the deprivation of a constitutional right and, thus, that
Vest was entitled to the defense of qualified immunity. The
magistrate judge dismissed the suit with prejudice.
The magistrate judge subsequently issued another order in
which he stated that he was treating Collins' motion to amend filed
after his trial as a motion for new trial. The magistrate judge
denied the motion based on his finding that Collins had failed to
show that his transfer resulted in a due process violation.
6
Collins filed a notice of appeal, a motion to proceed in forma
pauperis (IFP) on appeal and requested a trial transcript at
government expense. The magistrate judge denied Collins' request
for a transcript, but granted his motion to proceed IFP on appeal.
OPINION
Collins alleges that his personal property was taken and his
cell was left in shambles by prison personnel. He argues that
prisoners have a reasonable expectation that their property will
not be wantonly destroyed.
Collins' property-loss claim was dismissed as frivolous
following the Spears hearing. An in forma pauperis complaint may
be dismissed as frivolous under § 1915(d) if it lacks an arguable
basis in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31-32
(1992). This Court reviews a § 1915(d) dismissal under the abuse
of discretion standard.
"The Due Process Clause is not implicated by a state
official's negligent act causing unintended loss of property and
even intentional destruction of an inmate's property does not raise
a constitutional claim if an adequate post-deprivation remedy
exists." Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988)
(citing Daniels v. Williams, 474 U.S. 327 (1986) and Hudson v.
Palmer, 468 U.S. 517 (1984)). Texas provides such a remedy. See
Meyers v. Adams, 728 S.W.2d 771, 772 (Tex. 1987). Collins'
deprivation of property claim does not allege a constitutional
violation and, thus, does not have an arguable basis in law.
7
Collins argues that he was transferred to a punitive
segregation area without notice that he was being charged with a
disciplinary offense and without a hearing. He argues that he lost
the privileges given to prisoners in the general population.
"Classification of prisoners is a matter left to the
discretion of prison officials" because "prison officials must have
broad discretion, free from judicial intervention, in classifying
prisoners in terms of their custodial status." McCord v. Maggio,
910 F.2d 1248, 1250 (5th Cir. 1990) (internal quotations and
citation omitted).
"States may under certain circumstances create liberty
interests which are protected by the Due Process Clause. But these
interests will be generally limited to freedom 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." Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995).
In Sandin, the Court adopted a new and different methodology
for determining whether a state has created a protected liberty
interest to benefit prison inmates. Id. at 2297-2300. Rather than
focusing on the presence or absence of mandatory statutory or
regulatory language,3 the Supreme Court determined that the
reviewing court should consider the nature of the challenged state
action and whether it involved such a significant departure from
3
See, e.g., Hewitt v. Helms, 459 U.S. 460 (1983).
8
normal prison conditions that the state might have conceivably
created a liberty interest. Id. at 2299. The Court determined
that the prisoner's confinement to disciplinary segregation for a
period of 30 days did not affect the duration of his sentence or
"work a major disruption in his environment." Id. at 2300-01.
Collins has not alleged nor did he testify that his placement on
the "F" wing resulted in the loss of good time credits or the
extension of the duration of his confinement on any other basis.
Thus, under Sandin, even if Collins' transfer to the "F" wing
was a transfer to a disciplinary segregation area for punitive
purposes as he alleges, it did not violate a protected liberty
interest because the transfer did not impose "atypical and
significant hardship[s]" when compared to "the ordinary incidents
of prison life." Id. at 2300. Because Collins failed to show that
he was deprived of a constitutional right, the issue of qualified
immunity need not be addressed. See Siegert v. Gilley, 500 U.S.
226, 231 (1991).
Collins also argues for the first time on appeal that,
although he is a Muslim, he was denied pork-free meals, except on
three occasions, while he was on lockdown. Collins did not raise
a First Amendment issue regarding the right of Muslim prisoners to
receive a pork-free diet in the district court. This Court need
not address issues not considered by the district court. "[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.
9
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (internal citations and
quotations omitted). This issue, which would require the
resolution of factual questions, is not subject to review for the
first time on appeal.
AFFIRMED
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