                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                               No. 99-31242


                             ANDREW J. FRANK,

                                                     Plaintiff-Appellant,

                                     v.

                JERRY LARPENTER, Sheriff; CHAD MONROE;
                    GLENN PRESTONBACK; SCOTT EKISS

                                                    Defendants-Appellees,



         Appeal from the United States District Court for the
                     Eastern District of Louisiana

                             October 3, 2000

Before JOLLY, JONES and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

             Appellees Chad Monroe, Glenn Prestonback, and Scott Ekiss

were members of a prison disciplinary board that punished prisoner

Andrew Frank for misconduct.        Frank brought suit under 42 U.S.C.

§ 1983, alleging that the board members violated his due process

rights because one board member was not impartial. Frank also sued

Sheriff Jerry Larpenter for failure to train the other appellees.

The district court dismissed Frank’s suit for failure to state a

claim.     Frank appeals.   We affirm.


     *
            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opinion should not be published and is not precedent except under the limited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.
                                   BACKGROUND

            Frank is a prisoner in Louisiana. The events relevant to

this action occurred shortly after Frank arrived at the Terrebonne

Parish Criminal Justice Complex (TPCJC), while he was still a

pretrial detainee.        Appellee Larpenter is sheriff of TPCJC, and

appellees Monroe, Prestonback, and Ekiss are correctional officers

there.

            Frank arrived at TPCJC on December 11, 1998.               On that

same day, Monroe, Prestonback, and Ekiss presided as a disciplinary

board to hear charges that Frank violated TPCJC regulations.

Monroe was chairman of the board.           Frank had previously filed a

civil    suit   against   Monroe    that   ended   in   a    settlement.      The

pleadings and the record do not clearly indicate the date of the

previous lawsuit, the nature of the claim, or the terms of the

settlement.     Frank asked Monroe to recuse himself because of the

previous    lawsuit.      Monroe    refused.       Frank’s    sentencing     form

indicates that Frank pled guilty to the offense.                The board then

sentenced him to sixty days in administrative lockdown.                    During

this period, Frank was confined in his cell for twenty-three and

one-half hours per day and had limited hygiene and visitation

privileges.

            Frank then filed suit under 42 U.S.C. § 1983.                   Frank

alleged that the board was not impartial because Monroe was biased.

He also sued Sheriff Larpenter for failure to train the board



                                       2
properly, since the board punished Frank with knowledge of Monroe’s

alleged bias.       The district court dismissed Frank’s suit for

failure to state a claim.        Frank appeals.

                              STANDARD OF REVIEW

              We review dismissals for failure to state a claim de

novo.     See Kennedy v. Tangipahoa Parish Library Bd. of Control,

2000 U.S. App. LEXIS 20159 (5th Cir. 2000). District courts should

avoid such dismissals "unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief."       Conley v. Gibson, 355 U.S. 41, 45-46

(1957).       We view the facts in a light most favorable to Frank.

See Shipp v. McMahon, 199 F.3d 256, 260 (5th Cir. 2000).                  We

liberally construe his pro se brief.           See Moore v. McDonald, 30

F.3d 616, 620 (5th Cir. 1994).

                                  DISCUSSION

              I. AS A PRETRIAL DETAINEE, FRANK WAS ENTITLED
             TO THE SAME PROCEDURAL PROTECTIONS AS CONVICTED
                  PRISONERS AT HIS DISCIPLINARY HEARING.

              In general, the rights of pretrial detainees differ from

those of convicted prisoners.          Under the Due Process Clause, “a

detainee may not be punished prior to an adjudication of guilt.”

Bell v. Wolfish, 441 U.S. 520, 535 (1979) (describing the test to

determine when restrictions on pretrial detainees are punitive).

This    is   because   “[a]   person   lawfully    committed   to   pretrial

detention has not been adjudged guilty of any crime.”               Id.   The

                                       3
government     may,    however,    subject     pretrial        detainees     to    “the

restrictions and conditions of the detention facility so long as

those conditions and restrictions do not amount to punishment, or

otherwise violate the Constitution.”               Id.

           The administrative lockdown in this case was punitive,

but Frank’s     punishment    was    for     acts    he   committed    during          his

detention rather than for his original crime.                  Other circuits have

held    that   pretrial     detainees        are    not   immune      from    prison

disciplinary actions.        See Rapier v. Harris, 172 F.3d 999, 1003

(7th Cir. 1999) (holding that prison officials could place a

pretrial detainee in disciplinary segregation); Mitchell v. Dupnik,

75 F.3d 517, 524 (9th Cir. 1996) (same); Collazo-Leon v. United

States Bureau of Prisons, 51 F.3d 315, 318 (1st Cir. 1995)(same).

These courts state that prison officials can impose reasonable

punishment to enforce reasonable disciplinary requirements so long

as the punishment is not for prior unproven conduct.                  See Collazo-

Leon, 51 F.3d at 318.

           Frank’s situation thus does not resemble cases in which

pretrial   detainees     suffered    deprivations         of    liberty    from        the

natural conditions of their confinement, or from wanton acts of

prison staff.     See, e.g., Scott v. Moore, 114 F.3d 51 (5th Cir.

1997)   (en    banc)    (finding    no       deliberate     indifference          by     a

municipality where a staff member sexually assaulted a detainee);

Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc)


                                         4
(finding        no    deliberate   indifference     by   prison     staff   where   a

detainee committed suicide).             Our inquiry therefore is not whether

the challenged acts were episodic, or whether the appellees were

deliberately           indifferent.1       To   look       only    for   deliberate

indifference by board members at a disciplinary hearing would give

pretrial detainees less due process protection than we give to

convicted inmates.           We must determine instead whether the board

violated Frank’s due process rights as a pretrial detainee.

                As unconvicted citizens, pretrial detainees deserve at

least the protections of convicted inmates at a disciplinary

hearing.         See Rapier, 172 F.3d at 1004 (requiring a due process

hearing before officials can discipline detainees); Mitchell, 75

F.3d       at   524   (same).      The   question   here    is    whether   pretrial

detainees are entitled to more rigorous procedural due process

protection.

                The few courts that have addressed this issue indicate

that they are not.         See Mitchell, 75 F.3d at 525 (looking to see if

officials satisfied standard prisoner due process requirements at

a disciplinary hearing for a detainee); Spicer v. Johnson, 1997

U.S. Dist. LEXIS 7095 at 13 (N.D. Ill. 1997) (same).




       1
            This Court facially looked for deliberate indifference in a similar
case. See Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000) (finding no
deliberate indifference where a deportation detainee challenged procedures at his
disciplinary hearing). Edwards, however, went on to determine that the hearing
satisfied the detainee’s due process rights, which is the approach we use today.

                                           5
            The best approach is to treat pretrial detainees and

convicted inmates equally at disciplinary hearings.         To evaluate

the extent of individual due process rights, we must determine “the

precise nature of the government function involved as well as the

private interest that has been affected by government action.”

Wolff v. McDonell, 418 U.S. 539, 560 (1974).             The government

function of maintaining security and order at prison facilities is

identical    in    either   case.   The   private   interests    are   also

equivalent.       Both detainees and convicted prisoners face only a

difference in the quality of their confinement at a disciplinary

hearing.    Their interests are “qualitatively and quantitatively”

different from parole revocation proceedings, for example, where

parolees    have    greater   due   process   rights   because   complete

revocation of their liberty is at stake.        See id. at 561.        Frank

therefore is entitled to the same due process protections as

convicted prisoners at a disciplinary hearing.

            II. THE LAW OF THIS CIRCUIT PRECLUDES FRANK’S
             CLAIM THAT HIS DISCIPLINARY BOARD WAS BIASED.

            We now look to see if the appellees violated Frank’s due

process rights.       Frank asserts that in light of his previous

lawsuit against Monroe, Monroe’s presence on the disciplinary board

violated his due process right to an impartial decisionmaker.

Although Monroe has the right to an impartial disciplinary board,

“prison disciplinary hearing officers are not held to the same

standard of neutrality as adjudicators in other contexts.”             Allen

                                     6
v. Cuomo, 100 F.3d 253, 259 (2nd Cir. 1996) (holding that a

disciplinary surcharge did not create an incentive for board

members to find inmates guilty).         To prevail, Frank must assert

that the board presents “such a hazard of arbitrary decisionmaking

that it should be held violative of due process of law.”        Wolff v.

McDonnell, 418 U.S. 539, 571 (1974) (holding that a prison time

adjustment committee was sufficiently impartial).

             This Court has held that a disciplinary panel can punish

an inmate even where the inmate has previously filed an unrelated

grievance against a panel member.        See Adams v. Gunnell, 729 F.2d

362,   370    (5th   Cir.   1984)   (involving   an   unsuccessful   race

discrimination grievance against the panel member).        Although here

Monroe was the chairman of the board and actually settled a lawsuit

with Frank, the material circumstances of that case are present.

Adams extends to this case.

             Other circuits have approached impartiality in different

ways, and in some of these circuits Frank might state a claim.        The

Eighth Circuit has held that a disciplinary committee might be

biased where the defendant filed a suit against the chairman on

behalf of another inmate several days prior to the hearing.           See

Malek v. Camp, 822 F.2d 812, 816 (8th Cir. 1987).           The Seventh

Circuit has stated that prison adjustment committee members that

are defendants in unrelated lawsuits could be biased, and remanded

to evaluate the circumstances of the suits.              See Redding v.


                                     7
Fairman, 717 F.2d 1105, 1113 (7th Cir. 1983).          In contrast, the

Third Circuit considers prison tribunals impartial unless a member

is directly involved in the circumstances underlying the charge.

See Rhodes v. Robinson, 612 F.2d 766 (3rd Cir. 1979) (holding that

the presence of an officer of the guards on the committee did not

destroy impartiality).   These rulings are not controlling and do

not uniformly contradict our decision.

            It is potentially relevant that the chairman of the

disciplinary board that punished Frank settled a previous lawsuit

with him.   Nonetheless, Monroe’s       potential bias does not present

such a danger of arbitrary decisionmaking that it violates due

process in this context.   Frank is entitled to a fair tribunal,

“but the extent of impartiality in prison disciplinary proceedings

must be gauged with due regard to the fact that they ‘take place in

a closed, tightly controlled environment’ in which ‘guards and

inmates co-exist in direct and intimate contact.’” Adams, 729 F.2d

at 370 (quoting Wolff v. McDonnell, 418 U.S. 539, 561-62 (1974)).

If prisoners can disqualify tribunal members through lawsuits, they

will have too much power to dictate the composition of their board.

Redding, 717 F.2d at 1113.     This would also “heavily tax the

working capacity of the prison staff.”        Id.   We hold today that a

prison disciplinary board does not violate due process by punishing

a pretrial detainee who has settled an unrelated lawsuit with one

of its members.


                                    8
            III. BECAUSE MONROE’S PRESENCE ON THE BOARD
         DID NOT VIOLATE DUE PROCESS, FRANK CANNOT PREVAIL
               ON HIS CLAIMS AGAINST THE BOARD MEMBERS
                    OR AGAINST SHERIFF LARPENTER.

           Frank’s    claims    against     the    board   members     relate   to

Monroe’s failure to recuse himself and the board’s decision to

proceed in the face of Monroe’s alleged bias.               Since this was not

a due process violation, Frank does not state a claim against the

board members.

           Frank’s claim against Sheriff Larpenter for failure to

train the board members is based on the same facts.                “A supervisory

official may be held liable under section 1983 for the wrongful

acts of a subordinate ‘when [the supervisory official] breaches a

duty   imposed   by   state    or   local   law,    and    this    breach   causes

plaintiff’s constitutional injury.’” Smith v. Brenoettsy, 158 F.3d

908, 911 (5th Cir. 1998) (quoting Sims v Adams, 537 F.2d 829, 831

(5th Cir. 1976). Frank has not alleged that Larpenter violated any

laws, and there was no constitutional injury.                     Frank therefore

cannot state a claim against Larpenter.

                 IV. FRANK CANNOT FIRST RAISE A CLAIM
                  FOR ASSISTANCE OF COUNSEL ON APPEAL.

           Frank asserts that the conditions of his segregation

deprived him of the assistance of counsel to defend himself.                    He

did not present this argument to the district court, and cannot

raise it for the first time here.             See Leverette v. Louisville




                                       9
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 120 S.

Ct. 982 (2000).

                         V.   CONCLUSION.

          Frank cannot state a claim against any of the appellees.

For the foregoing reasons, we AFFIRM.




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