Allen v. Klevenhagen

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 15, 1995
• Docket: 95-20271
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-20271 Conference Calendar __________________

ROBERT LAMARR ALLEN,

Plaintiff-Appellant,

versus

JOHNNY KLEVENHAGEN, Sheriff; JOHN DOE, #1; JOHN DOE #2,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-H-93-580 - - - - - - - - - - (October 17, 1995)

Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

Allen appeals from the district court's dismissal of his

civil rights complaint, 42 U.S.C. § 1983, as frivolous pursuant

to 28 U.S.C. § 1915(d). He contends that "Harris County rules

governing administrative segregation" gave him a protected

liberty interest in remaining in the general prison population

and that he was improperly placed in administrative segregation

without receiving notice of the charges against him or a hearing.

* 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 Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-20271 -2-

This court reviews a § 1915(d) dismissal for an abuse of

discretion. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).

Allen's claim that he had a protected liberty interest in

remaining in the general prison population may not be based upon

mandatory language that may be contained in the Harris County

Rules governing administrative segregation. See Sandin v.

Conner, 115 S. Ct. 2293, 2299 (1995). Allen must show instead

that his confinement to administrative segregation "imposes

atypical and significant hardship" on him "in relation to the

ordinary incidents of prison life." See id. at 2300. Given the

fact that Allen had been convicted of fifteen disciplinary

offenses, his confinement to administrative segregation for two

months was not an "atypical or significant hardship" that gave

rise to a protected liberty interest. See id.

Allen's claim that he was placed in administrative

segregation without receiving a hearing or notice of the charges

against him, thus violating his due process rights, is similarly

without merit. Allen's disciplinary record reveals that notice

was given and a hearing was held. The district court did not

abuse its discretion by dismissing Allen's complaint as frivolous

pursuant to § 1915(d).

AFFIRMED.