Harris v. Anderson

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-41311 Summary Calendar _____________________

FELIX JEROME HARRIS,

Plaintiff-Appellant,

versus

ANDERSON, Assistant Warden,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. C-98-CV-49

August 17, 1999

Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:1

Felix Jerome Harris, Texas prisoner #338572, maintains, pro

se, that the district court erred in dismissing his 42 U.S.C. §

1983 complaint. He contends that he was denied due process because

he was transferred to a close custody lockdown unit before

receiving a hearing on a disciplinary charge; and that he was kept

in the lockdown unit after the hearing, although such status was

not part of his punishment. (Other claims raised in the district

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

- 1 - court, in which Harris asserted that he should be restored lost

good-time credits and that he was denied his right to practice his

religion while in lockdown status, have not been briefed on appeal

and are therefore waived. Yohey v. Collins, 985 F.2d 222, 225 (5th

Cir. 1993).)

Having reviewed the record, including the transcript of the

Spears hearing2, and Harris’ brief, we find no nonfrivolous

appellate issues. “[A]dministrative segregation, without more,

does not constitute a deprivation of a constitutionally cognizable

liberty interest.” Luken v. Scott, 71 F.3d 192, 193 (5th Cir.

1995). A hearing held within ten days of placing a prisoner in

administrative segregation has been held to be sufficient to

prevent a due process violation. Id. at 194. And, the three or

four days that Harris was confined to the lockdown unit after his

hearing do not provide extraordinary circumstances that would raise

a claim of more limited incarceration conditions to the level of a

constitutional violation. See Pichardo v. Kinker, 73 F.3d 612, 613

(5th Cir. 1996). Accordingly, the magistrate judge did not abuse

her discretion in dismissing Harris’ claim as frivolous. See

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Harris’

2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

- 2 - appeal is DISMISSED as frivolous. (Harris’ motion for an

evidentiary or Spears hearing is DENIED.)

DISMISSED

- 3 -