Pichardo v. Kinker, 73 F.3d 612 (5th Cir. 01/31/1996)

[1] U.S. Court of Appeals, Fifth Circuit


[2] No. 95-40413


[4] decided: January 31, 1996.


[5] ROLANDO PICHARDO, PLAINTIFF-APPELLANT,
v.
H.E. KINKER, M.W. MOORE, W. SCOTT, J.A. COLLINS, S.O. WOODS AND S. BUENTELLO, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Eastern District of Texas. 6:94-CV-523. William M Steger, US District Judge.


[7] ROLANDO PICHARDO, Plaintiff - Appellant, Pro Se, Texas Department of Criminal Justice, Institutional Division Coffield Unit, Tennessee Colony, TX.


[8] Before Jolly, Davis and Emilio M. Garza, Circuit Judges.


[9] Author: Jolly


[10] E. GRADY JOLLY, Circuit Judge:


[11] Rolando Pichardo appeals from the judgment of the United States District Court for the Eastern District of Texas dismissing as frivolous under 28 U.S.C. § 1915 his claim that his confinement in administrative segregation violates his due process rights. We hold that absent extraordinary circumstances, administrative segregation as such, being an incident to the ordinary life as a prisoner, will never be a ground for a constitutional claim, and therefore affirm.


[12] I


[13] Pichardo, an inmate at Texas Department of Criminal Justice ("TDCJ"), filed suit pursuant to 42 U.S.C. § 1953 against various TDCJ officials and employees at the Coffield and Hobby Units. Pichardo challenged the determination, made while he was at the Hobby Unit, that he was affiliated with the Texas Syndicate, a prison gang, a determination that resulted in his classification as a gang member and his placement in administrative segregation at the Coffield Unit. The magistrate Judge assigned to the matter severed the claims and allegations concerning the initial determination of Pichardo's gang affiliation and transferred those claims to the United States District Court for the Western District of Texas.


[14] The magistrate Judge conducted a Spears*fn1 hearing to flesh out the factual allegations concerning Pichardo's claim of a due process violation arising from his continued confinement in administrative segregation. At the hearing, Pichardo testified that he had consistently denied any gang affiliation and that he had received periodic review by the Coffield Unit's classification committee concerning his gang classification. Prison Warden Kinker explained the procedures utilized in classifying an inmate as a gang member, with placement in administrative segregation, and noted that review occurs every ninety days to determine whether the inmate continues as an active member of the gang.


[15] The magistrate Judge recommended dismissal of Pichardo's complaint as frivolous, concluding that Pichardo had not shown an abuse of the prison officials' discretion in continuing to classify Pichardo as a gang member; thus, no due process violation had occurred. The district court conducted a de novo review of the record, adopted the magistrate Judge's report, and dismissed Pichardo's complaint as frivolous under 28 U.S.C. § 1915. This timely appeal followed.


[16] II


[17] Pichardo argues that the TDCJ policies covering an inmate's placement and continued confinement in administrative segregation create a protectable liberty interest.*fn2 Because this contention lacks an arguable basis in law or fact, we hold that his complaint was properly dismissed as frivolous. Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1732-33, 118 L. Ed. 2d 340 (1992).


[18] The Supreme Court recently held that a prisoner's liberty interest is "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, 515 U.S. , , 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995) (citations omitted). In Sandin, the Court held that the petitioner's "discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. In the wake of Sandin as we recently have held, "administrative segregation, without more, simply does not constitute a deprivation of a constitutionally cognizable liberty interest." Luken v. Scott, 71 F.3d at 193.


[19] III


[20] Because Pichardo has not alleged a deprivation of a constitutionally cognizable liberty interest, his 42 U.S.C. § 1983 action has no arguable basis in law. His complaint was therefore properly dismissed as frivolous.


[21] AFFIRMED.


[22] Disposition


[23] Affirmed.



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Opinion Footnotes

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[24] *fn1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).


[25] *fn2 Unlike the plaintiff in the recent and nearly identical case of Luken v. Scott, 71 F.3d 192 (5th Cir. 1995) (per curiam), Pichardo does not contend that he lost the opportunity to earn good-time credits, and that that loss constitutes a constitutionally cognizable liberty interest. He claims instead that the mere placement in administrative segregation deprives him of a liberty interest.

Luken v. Scott, 71 F.3d 192 (5th Cir. 12/21/1995)

[1] U.S. Court of Appeals, Fifth Circuit


[2] No. 95-20724 Summary Calendar.


[3] 71 F.3d 192, 1995


[4] decided: December 21, 1995.


[5] DANIEL JOSEPH LUKEN, PLAINTIFF-APPELLANT,
v.
WAYNE SCOTT, ET AL., DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Southern District of Texas. CA-H-94-1229. Ewing Werlein, Jr, US District Judge.


[7] DANIEL JOSEPH LUKEN, Plaintiff - Appellant, Pro Se, Tennessee Colony, TX.


[8] Before Higginbotham, Duhe and Emilio M. Garza, Circuit Judges.


[9] Per Curiam:


[10] Daniel Joseph Luken appeals from the judgment of the United States District Court dismissing as frivolous under 28 U.S.C. § 1915 his claim that his confinement in administrative segregation violates his due process rights. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.


[11] I.


[12] On April 25, 1995, Luken filed suit pursuant to 42 U.S.C. § 1983 against Wayne Scott and the Texas Department of Criminal Justice. Luken alleged that Scott willfully maintained false information in Luken's prison file concerning Luken's membership in a prison gang, the Aryan Brotherhood; that on the basis of that information, Luken was confined in administrative segregation; and, that because of his custody status, he has been unable to accrue additional good-time credits to accelerate his eligibility for parole.


[13] On June 8, 1995, the district court ordered Luken to furnish a more definite statement of facts. Responding to the court's order, Luken conceded that he received a hearing within ten days after being placed in administrative segregation; that he was afforded the opportunity to make a statement at the hearing; and, that a classification review board reviewed his status every ninety days.


[14] In its order dismissing Luken's complaint as frivolous under 28 U.S.C. § 1915, the district court concluded that Luken had failed to demonstrate that he had a constitutionally cognizable liberty interest in his custody status. In addition, the district court held that, even if he did possess such a interest, Luken had received all the process due him. This timely appeal followed.


[15] II.


[16] This case is not about the deprivation of good-time credits previously earned by Luken. Cf. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Gotcher v. Wood, 66 F.3d 1097, 1100 (9th Cir.1995). Rather, Luken contends that the mere opportunity to earn good-time credits constitutes a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause. We disagree.


[17] In Sandin v. Conner, 515 U.S. , 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the Supreme Court held that a prisoner's liberty interest is "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." Id. at , 115 S. Ct. at 2295, 132 L. Ed. 2d at 430 (citations omitted). The Court held that the prisoner's "discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. at , 115 S. Ct. at 2295, 132 L. Ed. 2d at 431. Sandin establishes that Luken's administrative segregation, without more, does not constitute a deprivation of a constitutionally cognizable liberty interest. See also Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.1995) (holding that no liberty interest is implicated by placement in administrative segregation); Gothcher, 66 F.3d at 1101 (remanding for determination whether placement in disciplinary segregation imposed "atypical and significant" hardship on prisoner sufficient to create liberty interest).


[18] Luken responds that the effect of his custodial status has been to reduce his opportunity for earning good-time credits that could lead to a shortened time in prison, which is a constitutionally protected liberty interest. In Sandin, the Court rejected a similar argument, noting that Conner's confinement in disciplinary segregation would not "inevitably" affect the duration of his sentence since the decision to release a prisoner on parole "rests on a myriad of considerations." Id. at , 115 S. Ct. at 2302, 132 L. Ed. 2d at 431-32. Indeed, the Court concluded that the possibility that Conner's confinement in disciplinary segregation would affect when he was ultimately released from prison "is simply too attenuated to invoke the procedural guarantees of the Due Process Clause." Id. at , 115 S. Ct. at 2302, 132 L. Ed. 2d at 432.


[19] The loss of the opportunity to earn good-time credits, which might lead to earlier parole, is a collateral consequence of Luken's custodial status. Yet, such speculative, collateral consequences of prison administrative decisions do not create constitutionally protected liberty interests. See Meachum v. Fano, 427 U.S. 215, 229 n. 8, 96 S. Ct. 2532, 2540 n. 8, 49 L. Ed. 2d 451 (1976) (noting that possible effect on parole decision does not create liberty interest in confinement in particular prison). Any of a host of administrative or disciplinary decisions made by prison authorities might somehow affect the timing of a prisoner's release, but such effects have never been held to confer a constitutionally protected liberty interest upon a prisoner such that the prison authorities must comply with the Constitutional requirements of due process. For example, in Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir.1995), we held that the loss of a prison job did not implicate the prisoner's liberty interest even though the prisoner lost the ability to automatically accrue good-time credits as a consequence.


[20] Finally, even if Luken possessed a constitutionally protected liberty interest in his custodial status, we are not persuaded that Luken has been afforded constitutionally insufficient process. Although Luken contends that his prison file contains false information regarding his gang membership, Luken points to no denial of procedure for demonstrating the falsity of this information. Indeed, Luken concedes that he received a hearing within ten days of being placed in administrative segregation, Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995) (holding that prisoner received due process where informal review occurs within reasonable time after placement in administrative segregation), and his custodial status is reviewed every ninety days.


[21] The district court did not abuse its discretion in dismissing Luken's complaint as frivolous pursuant to 28 U.S.C. § 1915.


[22] AFFIRMED.