     Case: 15-20003        Document: 00513965284        Page: 1    Date Filed: 04/24/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                       No. 15-20003
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                               April 24, 2017

WARREN PIERRE CANADY,                                                          Lyle W. Cayce
                                                                                    Clerk
                 Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                 Respondent–Appellee.




                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:14-CV-1124


Before KING, JOLLY, and PRADO, Circuit Judges.*
PER CURIAM:**
       Warren Canady appeals the district court’s grant of summary judgment
in favor of the Director of the Correctional Institutions Division of the Texas
Department of Criminal Justice (“TDCJ”) in a case seeking habeas corpus
relief. Canady’s habeas petition challenged his prison disciplinary conviction
for possession of contraband, i.e., materials relating to the Uniform


       *   Carolyn Dineen King, Circuit Judge, concurs in the judgment only.
       **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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-20003      Document: 00513965284        Page: 2    Date Filed: 04/24/2017



                                    No. 15-20003
Commercial Code (“UCC”). Canady contends that he was denied due process
because he did not receive prior notice that he could be punished for possessing
such material. Canady also asks this Court to grant a preliminary injunction
against the Director so that he may access UCC material. For the following
reasons, we REVERSE the district court’s grant of summary judgment and
REMAND. We DENY Canady’s petition for a preliminary injunction.
                                           I.
      On February 19, 2014, law library staff at the Ellis One Plantation Unit,
the prison where Canady was confined, received training regarding certain
types of documents relating to the UCC that were considered contraband. Six
days later, Frank Hoke, the coordinator of the Access to the Court Program,
informed prison staff that UCC material would not be allowed into TDCJ
facilities and told them that, if they found inmates with such material, they
should confiscate the material and charge the inmates with possession of
contraband, a disciplinary offense. 1
      On March 12, 2014, Officer Helen Chenevert, the prison law librarian,
searched Canady’s property and found material relating to the UCC. Two days
later, Canady was notified that he had been charged with a disciplinary offense
for “possess[ing] contraband, namely, UCC (Uniform Commercial Code)
material, which is an item that is not allowed or assigned to an offender, and



      1 At the time, the TDCJ Disciplinary Rules and Procedures defined “contraband” as:
      a. Any item not allowed when the offender arrived at the TDCJ, not given or
          assigned to an offender by the TDCJ, and not bought by an offender for
          their use from the commissary; . . . .
      c. Any item which, in the judgment of TDCJ staff, unreasonably hinders the
          safe and effective operation of the unit; . . . .
      e. Any item received or sent through the mail that is not approved in
          accordance with the TDCJ or facility correspondence rules; and
      f. Anything an offender is not supposed to have, including, but not limited
          to: . . . Books, magazines, or newspapers that are not approved for an
          offender to have . . . .
                                           2
     Case: 15-20003       Document: 00513965284         Page: 3     Date Filed: 04/24/2017



                                       No. 15-20003
not bought by the offender for his use from the commissary.” On March 19,
2014, prison officials conducted a disciplinary hearing in Canady’s case, which
Canady elected not to attend. The hearing officer found Canady guilty of the
charged offense and punished him by, among other things, revoking twenty-
nine days of good-time credits. Canady appealed this decision through the
prison system, but prison officials upheld the conviction.
       Canady subsequently filed a pro se habeas petition in the district court, 2
contending that he was denied due process by being deprived of good-time
credits without having received prior notice that possessing UCC material was
prohibited. See Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir. 2007)
(“[W]hen a state inmate enjoys a constitutional expectancy to an early release
from prison based on the accumulation of good-time credits, he has a protected
liberty interest and is entitled to due process before he may be deprived of such
credits.”). The Director countered with a motion for summary judgment. The
district court granted the Director’s summary judgment motion and dismissed
Canady’s case, holding that the TDCJ’s disciplinary rules provided adequate
notice that the materials in Canady’s possession constituted contraband.
       Canady timely appealed. On November 17, 2015, this Court granted a
COA on Canady’s claim that he did not receive prior notice that he could be
punished for possessing UCC material.               In October 2016, Canady filed a
petition for a preliminary injunction in this Court, asking that we require
prison officials to allow him to access UCC material.                   We must decide:
(1) whether Canady is entitled to a preliminary injunction; (2) whether Canady




       2 A habeas petition is the proper method for seeking to have good-time credits
reinstated. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is
challenging the very fact or duration of his physical imprisonment, and the relief he seeks is
a determination that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.”).
                                              3
    Case: 15-20003      Document: 00513965284      Page: 4   Date Filed: 04/24/2017



                                 No. 15-20003
has abandoned his habeas claim; and (3) whether the district court erred in
granting summary judgment.
                                        II.
      “As we begin our review, we are mindful that ‘we liberally construe briefs
of pro se litigants and apply less stringent standards to parties proceeding pro
se than parties represented by counsel.’” Haase v. Countrywide Home Loans,
Inc., 748 F.3d 624, 629 (5th Cir. 2014) (quoting Grant v. Cuellar, 59 F.3d 523,
524 (5th Cir. 1995)).
                                        A.
      We begin by addressing Canady’s petition for a preliminary injunction.
Canady contends that prison officials violated his First Amendment rights by
seizing the UCC material from his possession, so he asks this Court to require
prison officials to allow him to access UCC material. But Canady never raised
this claim before the district court.       We therefore decline to consider his
petition. Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200
F.3d 307, 316–17 (5th Cir. 2000) (“It is a bedrock principle of appellate review
that claims raised for the first time on appeal will not be considered.”).
                                        B.
      Next, we consider whether Canady has abandoned his habeas claim on
appeal.    The Director contends that this Court lacks jurisdiction or,
alternatively, Canady has abandoned his habeas claim because: Canady has
not requested habeas relief in his appellate brief, which states that he “seeks
the necessary tort relief through 42 U.S.C. § 1983 in the deprivation of his
liberty and property” and requests monetary damages; and Canady did not
raise a § 1983 claim in the district court. We disagree.
      The mere fact that a pro se appellant incorrectly labels his claim and
misidentifies the available relief does not mean that he has abandoned his
claim on appeal. As we explained in Rosin v. Thaler, “[t]he label attached to a
                                        4
     Case: 15-20003       Document: 00513965284          Page: 5     Date Filed: 04/24/2017



                                       No. 15-20003
prisoner’s pro se pleading is not controlling; rather, courts must look to the
content of the pleading.” 3 417 F. App’x 432, 434 (5th Cir. 2011) (per curiam).
Consequently, in Rosin, when a pro se prisoner sought damages and injunctive
relief before a district court “in a submission styled as a 28 U.S.C. § 2254
application” but, on appeal, argued that he had not sought relief under § 2254
and tried “to bring claims for civil rights violations under 42 U.S.C. § 1983,”
we construed his request “as both a request for a COA for any § 2254 claims
and an appeal of the dismissal of any civil rights claims.” Id. at 433.
       Canady’s case is similar to Rosin.            Canady filed this lawsuit in the
district court as a petition for a writ of habeas corpus under § 2254, and the
district court properly construed his claim as such. Canady’s notice of appeal
and motion for a COA reiterated his intention to appeal “the loss of good time
credit.” And although Canady’s merits brief states that he seeks monetary
damages under § 1983, its argument focuses on whether Canady was
disciplined (and therefore lost good-time credits) without receiving fair
warning that the materials he possessed were contraband—an argument that
supports the claim on which the COA was granted and appears to be aimed at
challenging the district court’s denial of habeas relief.
       Accordingly, we retain jurisdiction over this case and hold that Canady
has not abandoned his habeas claim on appeal. To the extent, however, that
Canady seeks monetary damages under § 1983, we decline to consider those
claims for relief because they were not raised before the district court. Stewart
Glass, 200 F.3d at 316–17.


       3 In Herring v. Cotten, this Court held that an appellant had “not appeal[ed] the
dismissal of what the district court construed as his habeas claims” because he only sought
monetary damages on appeal and did not “allege that he [was] entitled to habeas relief from
being held for five weeks without bond.” 51 F.3d 1042 (5th Cir. 1995) (unpublished table
decision). But Herring is not necessarily analogous to the instant appeal because it is unclear
whether the Herring appellant was proceeding pro se.

                                              5
    Case: 15-20003     Document: 00513965284      Page: 6    Date Filed: 04/24/2017



                                  No. 15-20003
                                        C.
      We now turn to the merits of Canady’s habeas claim. “We review a
summary judgment de novo, ‘using the same standard as that employed by the
district court under Rule 56.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir.
2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000)).
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is ‘genuine’ if the evidence
is sufficient for a reasonable jury to return a verdict for the nonmoving party,”
and a “fact issue is ‘material’ if its resolution could affect the outcome of the
action.” Ramirez v. Martinez, 716 F.3d 369, 374 (5th Cir. 2013). “Because this
case arises in a summary judgment posture, we view the facts in the light most
favorable to [Canady], the nonmoving party.” City & County of San Francisco
v. Sheehan, 135 S. Ct. 1765, 1769 (2015). “The evidence of the nonmovant is
to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
      The Due Process Clause requires “that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
Thus, we have “expressly held that it is a violation of due process to punish
inmates for acts which they could not have known were prohibited.” Reeves v.
Pettcox, 19 F.3d 1060, 1061 (5th Cir. 1994) (per curiam). “An inmate is entitled
to prior notice, or ‘fair warning,’ of proscribed conduct before a severe sanction,”
such as deprivation of good-time credits, may be imposed. Id. (quoting Adams
v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984)).
      The record seems clear that no specific notice of the prohibition on UCC
material was provided to inmates, including Canady, before Canady was
charged with possession of contraband. Canady contends, further, that he
                                         6
    Case: 15-20003    Document: 00513965284     Page: 7   Date Filed: 04/24/2017



                                 No. 15-20003
could not have known the UCC material was contraband given that: there is
no evidence that any inmate before him had been punished for possessing UCC
material; and the material was approved through the prison mail system and
available in the prison law library. The Director counters that the definition
of contraband in the TDCJ’s disciplinary rules provided Canady with adequate
notice because the rules only allow inmates to possess approved materials and
prison staff never explicitly authorized inmates to possess UCC material. The
Director also notes that the material in Canady’s possession was not simply
UCC forms or excerpts but included, among other things, “articles instructing
individuals on how to circumvent the use of currency or otherwise not pay for
anything, and how to get the federal government to ‘pay back’ the ‘national
debt’ owed to oneself.” Because prison staff determined that this type of
material concerned “either plans for activities in violation of institutional
rules, or plans for future criminal activity,” the Director argues that the UCC
material clearly fell within the disciplinary rules’ prohibition on items that
“unreasonably hinder[] the safe and effective operation of the unit.”
      Canady presented evidence that the UCC material in his possession had
been previously approved or made available by prison staff.        Canady has
consistently stated that he obtained the UCC material “via general
correspondence approved through the prison mail system” and “from law books
and legal material, in the law library and made accessible for legal research
and/or general use.” And he has provided supporting affidavits from three
other inmates stating that Officer Chenevert, the “law library supervisor,
provided . . . uniform access to legal books, case law and/or reference material
pertaining to the Uniform Commercial Code.” The Director does not dispute
this evidence in either its motion for summary judgment or its brief before this
Court.   The only contrary evidence in the record is Officer Chenevert’s
testimony that UCC information was not accessible through the law library.
                                       7
    Case: 15-20003    Document: 00513965284    Page: 8   Date Filed: 04/24/2017



                                No. 15-20003
      If they had previously approved or made available UCC material, prison
officials needed to notify inmates that the material was no longer permitted
before taking disciplinary action against them and give inmates an opportunity
to dispose of the contraband. See Reeves, 19 F.3d at 1061–62. Nothing in the
record suggests that prison officials did so. Officer Chenevert testified that
Canady was notified that the materials were contraband “at the time of
discovery.” And as we have noted, the Director has not pointed to any evidence
that the policy prohibiting possession of UCC material was otherwise
communicated to inmates.
      The Director contends that Canady was on notice that his UCC material
was contraband because the material carried its own warning of wrongdoing.
But nothing in the record indicates that any inmate before Canady was
punished for possessing UCC material or that it was clearly insubordination
to possess such material. See Adams, 729 F.2d at 369. There is therefore a
factual dispute, at least, as to whether the material was of such a nature that
it “carr[ied] with it its own warning of wrongdoing” such that inmates would
have known that “serious disciplinary sanctions would be imposed for their
conduct,” especially if the material had previously been approved or made
available by prison personnel. See id. (quoting Shawgo v. Spradlin, 701 F.2d
470, 478 (5th Cir. 1983)).   Thus, we hold that the district court erred in
granting the Director summary judgment.
                                     III.
      For the foregoing reasons, Canady’s petition for a preliminary injunction
is DENIED. Additionally, we REVERSE the district court’s grant of summary
judgment and REMAND for a factual determination of whether, under these
circumstances, Canady was denied his constitutional due process right to fair
warning that possessing UCC material violated prison rules. Finally, Canady’s
motion for a fair hearing is DENIED as moot.
                                      8
