UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-20079 Summary Calendar
CHRISTOPHER J. MURPHY, Plaintiff-Appellant,
versus
J.A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, ET AL., Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Texas
(July 6, 1994)
Before POLITZ, Chief Judge, JOLLY and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
Christopher J. Murphy, proceeding pro se and in forma
pauperis, appeals the dismissal of his 42 U.S.C. § 1983 complaint
as frivolous under 28 U.S.C. § 1915(d). We affirm.
Background
An inmate of the Texas Department of Criminal Justice, Murphy
filed a section 1983 complaint against various prison officials,
alleging violations of his constitutional rights in incidents occurring on April 8, 1993 and during disciplinary proceedings
which followed. Murphy claims that on the morning of April 8,
Officer Beers intentionally poured hot coffee on his hand, causing
him to drop his coffee cup and to splatter coffee on Beers. When
Murphy asked to speak to Beers' supervisor, Beers allegedly
replied, "If you bitch on me, I'll lie on you first." Murphy
contends that Beers then fabricated a story to Sergeant Llewellyn,
who ordered Officers Beers and Wheeler to strip search Murphy,
handcuff him in the showers, and search his cell. During the
search, which Murphy claims was pretextual, the officers seized
Murphy's dictionary and his cup and bowl. Officer Wheeler also
claimed to have found in the cell a sharpened cotter key capable of
causing bodily injury.
Two disciplinary proceedings followed. The first, brought by
Officer Beers, charged Murphy with assault. Murphy received notice
of the charge and presented two inmate witnesses at his hearing.
A third inmate witness, A. Campbell, was not allowed to testify.
Unit Disciplinary Officer Horton found Murphy guilty and sentenced
him to six additional months in the lowest custody classification.
The second disciplinary proceeding was brought by Officer
Wheeler and charged Murphy with possession of a dangerous weapon.
At the conclusion of the hearing, held on the same day as the
assault hearing, Murphy was found guilty, divested of 110 days of
good time, and placed on commissary and cell restriction for 15
days. Murphy sought administrative review of the two disciplinary
actions through the TDCJ grievance procedures. His appeals were
2 denied by Deputy Director Collins.
In his section 1983 action Murphy challenges the exclusion of
witness Campbell from the assault hearing and the sufficiency of
the evidence in the weapons hearing; he also charges that the
prison officials disregarded the prison policy requiring a review
of all prisoner property confiscations.1 The district court
dismissed Murphy's complaint as frivolous under 29 U.S.C. § 1915(d)
and imposed a $50 sanction for a frivolous complaint. The court
also ordered the clerk to refuse to accept for filing any
section 1983 civil rights suit submitted by Murphy unless a
district or magistrate judge authorized it first. Murphy timely
appealed.
Analysis
Murphy contends that his civil rights complaint was improperly
dismissed as frivolous because his claims had "some chance of
success." While it is true that complaints which present even a
slight chance of success should not be dismissed under
section 1915(d),2 the statute accords trial judges the authority to
dimiss complaints which "lack an arguable basis in law or fact."3
Reviewing the district court's section 1915(d) dismissal for abuse
1 Murphy's claim that Officer Beers purposely spilled the coffee to inflict pain was not raised in his brief on appeal and is therefore deemed abandoned. Beasley v. McCotter, 798 F.2d 116 (5th Cir. 1986), cert. denied, 479 U.S. 1039 (1987). 2 Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). 3 Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
3 of discretion,4 we conclude that Murphy's complaint was properly
dismissed.
Murphy's first point of error concerns the exclusion of inmate
witness Campbell from the assault proceeding. Had Murphy been
penalized by solitary confinement or loss of good time credit as a
result of this charge,5 due process would require an explanation
for the exclusion.6 Because Murphy was sentenced to additional
time in his present custody level, however, he was only entitled to
the process due under the teachings of Hewitt v. Helms.7 According
to this standard, Murphy deserved "some notice of the charge
against him and an opportunity to present his views to . . . prison
official[s]."8 This Murphy received; he has no ground for
complaint.
Murphy next complains that the search of his cell was
pretextual, retaliatory, and intended to harass. He alleges that
the weapons charge was fabricated to punish him for complaining to
Beers' supervisor and that his dictionary was taken to thwart his
redress in the courts. Murphy raised neither the retaliation claim
4 Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992). 5 Such punishment triggers the higher standard of due process enunciated in Wolff v. McDonnell, 418 U.S. 539 (1974). 6 See Ponte v. Real, 471 U.S. 491 (1985) (refining the heightened standard of Wolff by requiring prison officials to account for their decision to exclude requested witnesses either on the administrative record or by later presenting testimony in court). 7 459 U.S. 460 (1983). The district court therefore erred in applying the Wolff standard to Murphy's claim. 8 Id. at 476.
4 nor the redress claim in his complaint to the district court and is
therefore foreclosed from raising them for the first time on
appeal.9 To the extent that he alleged pretext and fabrication in
the court below, he did so in the context of an insufficiency
argument. Nowhere did he seek relief on that basis,10 and that
which he did seek -- reversal on grounds of insufficiency -- was
not raised again on appeal.11 Murphy's complaints, therefore, were
dismissed properly.
Murphy next claims that his property was confiscated without
regard to the prison policy requiring notice and an opportunity to
be heard.12 A state's failure to follow its own procedural
regulations does not constitute a violation of due process,
however, if "constitutional minima [have] nevertheless . . . been
met."13 In Hudson v. Palmer,14 the Supreme Court held that
deprivations of property caused by the misconduct of state
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-20079 Summary Calendar
CHRISTOPHER J. MURPHY, Plaintiff-Appellant,
versus
J.A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, ET AL., Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Texas
(July 6, 1994)
Before POLITZ, Chief Judge, JOLLY and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
Christopher J. Murphy, proceeding pro se and in forma
pauperis, appeals the dismissal of his 42 U.S.C. § 1983 complaint
as frivolous under 28 U.S.C. § 1915(d). We affirm.
Background
An inmate of the Texas Department of Criminal Justice, Murphy
filed a section 1983 complaint against various prison officials,
alleging violations of his constitutional rights in incidents occurring on April 8, 1993 and during disciplinary proceedings
which followed. Murphy claims that on the morning of April 8,
Officer Beers intentionally poured hot coffee on his hand, causing
him to drop his coffee cup and to splatter coffee on Beers. When
Murphy asked to speak to Beers' supervisor, Beers allegedly
replied, "If you bitch on me, I'll lie on you first." Murphy
contends that Beers then fabricated a story to Sergeant Llewellyn,
who ordered Officers Beers and Wheeler to strip search Murphy,
handcuff him in the showers, and search his cell. During the
search, which Murphy claims was pretextual, the officers seized
Murphy's dictionary and his cup and bowl. Officer Wheeler also
claimed to have found in the cell a sharpened cotter key capable of
causing bodily injury.
Two disciplinary proceedings followed. The first, brought by
Officer Beers, charged Murphy with assault. Murphy received notice
of the charge and presented two inmate witnesses at his hearing.
A third inmate witness, A. Campbell, was not allowed to testify.
Unit Disciplinary Officer Horton found Murphy guilty and sentenced
him to six additional months in the lowest custody classification.
The second disciplinary proceeding was brought by Officer
Wheeler and charged Murphy with possession of a dangerous weapon.
At the conclusion of the hearing, held on the same day as the
assault hearing, Murphy was found guilty, divested of 110 days of
good time, and placed on commissary and cell restriction for 15
days. Murphy sought administrative review of the two disciplinary
actions through the TDCJ grievance procedures. His appeals were
2 denied by Deputy Director Collins.
In his section 1983 action Murphy challenges the exclusion of
witness Campbell from the assault hearing and the sufficiency of
the evidence in the weapons hearing; he also charges that the
prison officials disregarded the prison policy requiring a review
of all prisoner property confiscations.1 The district court
dismissed Murphy's complaint as frivolous under 29 U.S.C. § 1915(d)
and imposed a $50 sanction for a frivolous complaint. The court
also ordered the clerk to refuse to accept for filing any
section 1983 civil rights suit submitted by Murphy unless a
district or magistrate judge authorized it first. Murphy timely
appealed.
Analysis
Murphy contends that his civil rights complaint was improperly
dismissed as frivolous because his claims had "some chance of
success." While it is true that complaints which present even a
slight chance of success should not be dismissed under
section 1915(d),2 the statute accords trial judges the authority to
dimiss complaints which "lack an arguable basis in law or fact."3
Reviewing the district court's section 1915(d) dismissal for abuse
1 Murphy's claim that Officer Beers purposely spilled the coffee to inflict pain was not raised in his brief on appeal and is therefore deemed abandoned. Beasley v. McCotter, 798 F.2d 116 (5th Cir. 1986), cert. denied, 479 U.S. 1039 (1987). 2 Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). 3 Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
3 of discretion,4 we conclude that Murphy's complaint was properly
dismissed.
Murphy's first point of error concerns the exclusion of inmate
witness Campbell from the assault proceeding. Had Murphy been
penalized by solitary confinement or loss of good time credit as a
result of this charge,5 due process would require an explanation
for the exclusion.6 Because Murphy was sentenced to additional
time in his present custody level, however, he was only entitled to
the process due under the teachings of Hewitt v. Helms.7 According
to this standard, Murphy deserved "some notice of the charge
against him and an opportunity to present his views to . . . prison
official[s]."8 This Murphy received; he has no ground for
complaint.
Murphy next complains that the search of his cell was
pretextual, retaliatory, and intended to harass. He alleges that
the weapons charge was fabricated to punish him for complaining to
Beers' supervisor and that his dictionary was taken to thwart his
redress in the courts. Murphy raised neither the retaliation claim
4 Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992). 5 Such punishment triggers the higher standard of due process enunciated in Wolff v. McDonnell, 418 U.S. 539 (1974). 6 See Ponte v. Real, 471 U.S. 491 (1985) (refining the heightened standard of Wolff by requiring prison officials to account for their decision to exclude requested witnesses either on the administrative record or by later presenting testimony in court). 7 459 U.S. 460 (1983). The district court therefore erred in applying the Wolff standard to Murphy's claim. 8 Id. at 476.
4 nor the redress claim in his complaint to the district court and is
therefore foreclosed from raising them for the first time on
appeal.9 To the extent that he alleged pretext and fabrication in
the court below, he did so in the context of an insufficiency
argument. Nowhere did he seek relief on that basis,10 and that
which he did seek -- reversal on grounds of insufficiency -- was
not raised again on appeal.11 Murphy's complaints, therefore, were
dismissed properly.
Murphy next claims that his property was confiscated without
regard to the prison policy requiring notice and an opportunity to
be heard.12 A state's failure to follow its own procedural
regulations does not constitute a violation of due process,
however, if "constitutional minima [have] nevertheless . . . been
met."13 In Hudson v. Palmer,14 the Supreme Court held that
deprivations of property caused by the misconduct of state
officials do not infringe constitutional due process provided
adequate state post-deprivation remedies exist.15 In Texas, as in
9 Walker v. Navarro County Jail, 4 F.3d 410 (5th Cir. 1993); Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991). 10 See supra note 9 and accompanying text (claims raised for the first time on appeal are procedurally barred). 11 See supra note 1 (claims not renewed on appeal are deemed abandoned). 12 Murphy's dictionary was later destroyed as contraband. 13 Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989) (quoting Brown v. Texas A&M University, 804 F.2d 327, 335 (5th Cir. 1986). 14 468 U.S. 517 (1984). 15 Id.; see also Collins v. King, 743 F.2d 248 (5th Cir. 1984).
5 many other states, the tort of conversion fulfills this
requirement. Accordingly, Murphy's claim based on the confiscation
of his property is not actionable under section 1983.16
Murphy's final challenge is to the sanctions imposed by the
district court. We are not persuaded. Murphy has filed 15 civil
rights complaints to date, most of which have been dismissed for
failure to prosecute or as frivolous. Murphy is abusing the
judicial process by such filings and is delaying the consideration
of meritorious claims. The monetary sanction is AFFIRMED. The
sanction against the filing of future civil rights suits without
the prior consent of a district or magistrate judge of the Southern
District of Texas is also AFFIRMED.
16 See, e.g., Marshall v. Norwood, 741 F.2d 761 (5th Cir. 1984).