Tilmon v. Prator

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 7, 2004

Charles R. Fulbruge III
Clerk
No. 03-31071
Summary Calendar

TERRY D. TILMON,

Plaintiff-Appellant,

versus

STEVE PRATOR; JOHN SELLS; MCCREARY, Sergeant;
RANDAL TERRELL,

Defendants-Appellees.

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Appeal from the United States District Court
for the Western District of Louisiana

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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:

Terry D. Tilmon appeals the district court’s dismissal of

his 42 U.S.C. § 1983 action for failure to state a claim upon

which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii).

Tilmon filed this 42 U.S.C. § 1983 action against Steve Prator,

the Sheriff of Caddo Parish; John Sells, Commander at Caddo

Correctional Center; Sgt. McCreary, supervisor; and Randal

Terrell, deputy sheriff. Tilmon alleged that on April 9, 2001,

his cell was randomly searched, various items alleged to

be contraband were seized, and he was punished by being confined
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in punitive “cell 32” for eight hours and suffering the loss of

telephone privileges, loss of visitation privileges, and loss of

recreation. He alleged that prior to being punished, he was not

afforded an administrative hearing, the opportunity to make a

statement, the right to present documentary evidence, the right

to call or confront witnesses, a copy of the infraction report,

or the assistance of a staff member. Tilmon alleged that on

April 10, 2001, he was approached by Sgt. McCreary, who asked him

to sign a disciplinary report for the infraction for which he had

been punished. On April 11, an investigation was conducted by

Sgt. Mitchell and Deputy Filler, which revealed that the items

seized were not contraband. Tilmon asserted that if he had been

given a hearing prior to being punished, he would have had the

opportunity to demonstrate that the items were not contraband.

He alleged that his punishment was arbitrary and capricious and

that he was denied due process.

The district court determined that he was not entitled

to due process under Sandin v. Conner, 515 U.S. 472 (1995).

Tilmon had argued that Sandin did not apply, citing Fuentes v.

Wagner, 206 F.3d 335 (3d Cir. 2000), in which that court held

that a convicted inmate awaiting sentencing has the status of a

pretrial detainee. The district court rejected Tilmon’s argument

that because he was convicted but not sentenced, Sandin did not

apply.
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Tilmon argues that the district court erred when it ruled

that convicted but not yet sentenced individuals are not entitled

to due process protections as pretrial detainees. He states that

he relies upon the reasoning in the Third Circuit’s opinion in

Fuentes.

Fuentes involved a Fourteenth Amendment Due Process claim by

a prisoner who was convicted but awaiting sentencing. He alleged

that he was denied a hearing before being placed in a restraint

chair for eight hours. The Third Circuit determined that Sandin

v. Conner did not apply because Sandin concerned the punishment

of a sentenced prisoner. The court stated that Fuentes’ status

under the Constitution was that of a pretrial detainee, citing

its previous opinion in Cobb v. Aytch, 643 F.2d 946, 962 (3d Cir.

1981). Fuentes, 206 F.3d at 341. In Cobb, the court held that

the right to remain at liberty continued until the pronouncement

of sentencing. The court based its reasoning on the fact that

Pennsylvania law allowed unsentenced defendants a right to bail

and that unsentenced prisoners retained their Sixth Amendment

rights to speedy trial and effective assistance of counsel.

643 F.2d at 962. Evitts v. Lucey, 469 U.S. 387, 393-95 (1985).

The court in Fuentes also rejected the notion that Fuentes’

status was the same as a sentenced defendant “because it is

simply wrong,” citing Bell v. Wolfish, 441 U.S. 520, 538 (1979).

206 F.3d at 341 n.7. We do not read Bell v. Wolfish as

suggesting that a convicted but unsentenced prisoner should be
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treated as a pretrial detainee. To the contrary, the Court in

Bell stated that “under the Due Process Clause, a detainee may

not be punished prior to an adjudication of guilt in accordance

with due process of law.” 441 U.S. at 535. The Court stated the

“general principle that punishment can only follow a

determination of guilt after trial or plea.” 441 U.S. at 537

n.17.

In our view, the adjudication of guilt, i.e., the

conviction, and not the pronouncement of sentence, is the

dispositive fact with regard to punishment in accordance with due

process. The Eighth, Ninth, and Tenth Circuits have recognized

this principle. The Tenth Circuit, citing Bell, stated:

We see no reason to treat incarcerated
persons whose guilt has been adjudicated
formally but who await sentencing like
pretrial detainees, who are detained
primarily to ensure their presence at trial
and who cannot be punished; and we perceive
every reason to treat those awaiting
sentencing the same as inmates already
sentenced. The critical juncture is
conviction, either after trial or ... by
plea, at which point the state acquires the
power to punish and the Eighth Amendment is
implicated.

Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990).

The Eighth Circuit in Whitnack v. Douglas County, 16 F.3d 954,

957 (8th Cir. 1994) determined that the prison condition claim

of a prisoner who was convicted and awaiting sentencing was

governed by the Eighth Amendment, in contrast to the claim of his

cellmate, a pretrial detainee, whose claim was governed by the
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Fourteenth Amendment’s Due Process Clause. In Resnick v. Hayes,

213 F.3d 443, 448 (9th Cir. 2000), that court held that for

purposes of analyzing whether the plaintiff had a liberty

interest in being free from confinement in the prison’s special

housing unit for 30 days pending his disciplinary hearing, the

convicted but unsentenced prisoner should be treated as a

sentenced inmate and not a pretrial detainee.

Tilmon argues that the Third Circuit’s reasoning in

Fuentes is apposite to Louisiana’s jurisprudence and judicial

practices regarding when the State actually inherits the power to

punish and when a prisoner’s liberty ceases. He cites several

Louisiana statutes concerning the function of the Department

of Corrections, postconviction remedies, and motions for post

verdict judgment of acquittal.

Tilmon did not make these particular arguments in the

district court either in his objections or on remand of this

case, and thus, the district court did not have the opportunity

to consider these arguments. Because he raises these arguments

for the first time on appeal, we review for plain error.

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29

(5th Cir. 1996)(en banc); Highlands Ins. Co. v. National Union

Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994) (applying

plain-error analysis of United States v. Olano, 507 U.S. 725,

730-37 (1993) in civil cases). The district court did not

plainly err in reaching its conclusion based on consideration of
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the three other Circuit court decisions which disagreed with

Fuentes.

We hold that a prisoner who has been convicted but has not

yet been sentenced has the same status as a sentenced prisoner

for purposes of analyzing whether the prisoner has a liberty

interest in having certain procedural protections apply

before being punished in connection with prison disciplinary

proceedings. Because Tilmon was a convicted prisoner, he had no

liberty interest implicated by his confinement in a punitive cell

for eight hours pursuant to Sandin v. Conner. The district court

did not err in dismissing Tilmon’s action for failure to state a

claim. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).

AFFIRMED.