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

                                                                            FILED
                                                                          October 6, 2008
                                       No. 05-41387                   Charles R. Fulbruge III
                                                                              Clerk

WILLIAM DEXTER WHITE,
              Plaintiff-Appellant

vs.

RONALD C. FOX; D WOODS, Lieutenant; P JONES; ROY LEE CASTILLO,
Inmate; ROBERT E TAYLOR, Captain; ET AL,
                Defendants-Appellees



                     Appeal from the United States District Court
                           for the Eastern District of Texas
                                 USDC No. 6:05-CV-26


Before GARZA and DENNIS, Circuit Judges, and MINALDI, District Judge.*

PER CURIAM:**

       Plaintiff-Appellant William Dexter White (“White”), a Texas state prisoner

proceeding pro se, appeals the district court’s dismissal of his 42 U.S.C. §1983 civil

rights action against several Texas prison officials. White alleges that the prison

disciplinary proceeding did not satisfy the minimum requirements of procedural due

process. The district court applied Supreme Court precedent and held that



       *District Judge of the Western District of Louisiana, sitting by designation.
       **Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
White’s claims were not cognizable under § 1983. Edwards v. Balisok, 520 U.S.

641(1997). Because we cannot say that all of White’s §1983 claims are frivolous or not

cognizable, we AFFIRM IN PART, REVERSE IN PART, and REMAND.

                     FACTUAL AND PROCEDURAL HISTORY

      A prison disciplinary board found White guilty of attempting to extort money

from another inmate. As a sentence, White’s good time credits were revoked. After

exhausting the prison grievance procedure, White filed a lengthy, verified §1983 civil

rights action, alleging that numerous prison officials violated his constitutional rights.

In the §1983 action, White requested that the record of his disciplinary case be stricken

from his files. He also sought injunctive relief, declaratory relief, and monetary

damages. White sought restoration of his “safekeeping” designation and reinstatement

of his housing restrictions.

      The magistrate judge considered White’s preliminary injunction and concluded

that White failed to show a substantial likelihood that he would prevail on the merits

or that he faced a substantial risk of irreparable injury if relief was not granted. The

magistrate judge further determined that the evidence did not support White’s

assertion that he was in present danger. The magistrate judge recommended denial

of the motion. The district court denied White’s motion for injunctive relief.

      The magistrate judge also conducted a hearing pursuant to Spears v. McCotter,

766 F.2d 179 (5th Cir. 1985), abrogated on other grounds by Neitzke v. Williams, 490

U.S. 319 (1989), to determine whether White’s complaint was frivolous or otherwise

failed to state a claim.       White consented to magistrate jurisdiction.      A prison

                                            2
representative appeared at the Spears hearing. Applying Edwards, 520 U.S. 641, the

magistrate judge held that challenges to prison disciplinary convictions could not be

brought in a §1983 proceeding absent a showing that the disciplinary case had been

reversed, set aside, or otherwise declared invalid. The magistrate judge determined

that White failed to make such a showing and therefore, to the extent that White was

challenging his disciplinary conviction, his challenge was without merit.         The

magistrate judge dismissed the §1983 claim with prejudice as frivolous for failure to

state a claim pursuant to 28 U.S.C. § 1915A.

      The Fifth Circuit has jurisdiction pursuant to 28 U.S.C. § 1291. The district

court concluded that White’s § 1983 claims were frivolous under 28 U.S.C. §1915A and

the claims were dismissed with prejudice. This court reviews the district court’s

dismissal as frivolous under § 1915A for an abuse of discretion. See Martin v. Scott,

156 F.3d 578, 580 (5th Cir. 1980).1

                                      DISCUSSION

      White’s numerous § 1983 claims fall into three broad categories: allegations of

procedural and evidentiary errors, claims related to his disciplinary conviction, and

claims not related to his disciplinary action. We consider each set of claims in turn.



      1
       Subsequent panel decisions have reviewed dismissals of a claim as frivolous
under §1915A de novo. See Ruiz v. United States, 160 F.3d 273, 274-75 (5th Cir.
1998)(per curiam); Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003). When
panel opinions are in conflict, the earlier decision controls. United States v. Miro,
29 F.3d 194, 199 n.4 (5th Cir. 1994). Martin preceded Ruiz, accordingly, Martin’s
abuse of discretion standard controls.


                                          3
                  I. Allegations of Procedural and Evidentiary Errors

Right to Amend

         The district court may dismiss a prisoner's complaint against an officer or

employee of a governmental entity if it “is frivolous, malicious, or fails to state a claim

upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Such a dismissal is

reviewed for abuse of discretion. E.g., Martin, 156 F.3d at 580. A complaint is frivolous

“‘if it lacks an arguable basis in law or fact.’” Berry v. Brady, 192 F.3d 504, 507 (5th

Cir. 1999) (quoting Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998)). The magistrate

judge dismissed White’s complaint with prejudice without allowing White the

opportunity to amend and attempting to cure deficiencies. White argues that he had

a right to amend his complaint as a matter of law as service had not been completed

and responsive pleadings had not been filed.

         The court held a Spears hearing at which White was permitted to testify at

length; therefore, granting leave to amend was not necessary. A §1915(d) dismissal

as frivolous differs from dismissals for failure to state a claim under Fed. R. Civ. P.

12(b)(6). Although “[u]nder Rule 12(b)(6), a plaintiff with an arguable claim is

ordinarily accorded notice of a pending motion to dismiss for failure to state a claim

and an opportunity to amend the complaint before the motion is ruled upon,” §1915(d)

provides no such procedural protections. Graves v. Hampton, 1 F.3d 315, 318 n.12 (5th

Cir. 1993), abrogated on other grounds by Arvie v. Broussard, 42 F.3d 249 (5th Cir.

1994).



                                            4
      The magistrate judge did not err in dismissing the complaint without allowing

White the opportunity to amend. White had an opportunity to fully elaborate on his

claims during the Spears hearing.

Evidence of Guilt

      White challenged the factual basis of the underlying extortion charge and

asserts that the magistrate judge erred by dismissing his case without addressing his

claim that there was no reliable evidence to support a finding of guilt. The magistrate

judge correctly found this claim barred by Heck. See Heck v. Humphrey, 512 U.S. 477,

486-87 (1994).

Brady Claim

      White argues that the magistrate judge erroneously dismissed his Brady claim.

The magistrate judge concluded, without citation to authority, that Brady does not

apply in prison disciplinary proceedings.

      White alleges that prison officials violated his constitutional rights by altering

and destroying evidence relevant to the charges against him. Convictions tainted by

the suppression, destruction, or alteration of material evidence violate a defendant's

Fourteenth Amendment right to due process. Brady v. Maryland, 373 U.S. 83, 87

(1963). If we were to find that prison officials altered and destroyed evidence relevant

to the charges against White, that judgment would necessarily imply the invalidity of

his subsequent convictions and sentences on those charges. See Heck, 512 U.S. at 490

(holding that allegation of knowing destruction of exculpatory evidence necessarily

                                            5
implied invalidity of conviction and sentence). Thus, Heck also bars this claim unless

White proves that his convictions or sentences have been reversed, expunged,

invalidated, or otherwise called into question. Since White has not made such a

showing, this claim is legally frivolous. Accordingly, the district court did not err in

dismissing this claim under § 1915(d). See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir.

1996).

Inadmissible Evidence

         White asserted that the district court considered portions of the prison records,

which were not part of the pleadings or the prison record which was admitted into

evidence, including details of alleged involvement with tobacco, drugs, and currency.

The magistrate judge’s rejection of his claim that his custodial classification had been

changed through deliberate indifference to his safety was based, in part, on

“information from prison records.” The magistrate judge’s opinion does not identify the

source of the records, but the transcript of the Spears hearing indicates that Chip

Satterwhite, a prison representative, was present at the hearing. Satterwhite brought

“certified authenticated records” from the prison, including White’s grievance records.

At the Spears hearing, White indicated that he did not object to the magistrate judge’s

review of these records.

         The documents referenced by Satterwhite are not in this court’s record. White

agreed to the magistrate judge’s consideration of the questioned documents; therefore,

the objection is deemed to have been waived. Puryear v. United States, 378 F.2d 29,


                                             6
30 (5th Cir. 1967). see also Rogers v. United States, 334 F.2d 83, 86 (5th Cir. 1964);

Teate v. United States, 297 F.2d 120, 121 (5th Cir. 1961).

Preliminary Injunction

      White argues that the district court erred in denying his motion for a

preliminary injunction. A "judgment," for purposes of the Federal Rules of Civil

Procedure, is defined to "include[ ] a decree and any order from which an appeal lies."

Fed. R. Civ. P. 54(a). The Judicial Code permits an appeal from an interlocutory order

granting, refusing, or refusing to dissolve an injunction. See 28 U.S.C. §1292(a)(1). An

"interlocutory order granting a preliminary injunction is a judgment within the

meaning of the Rule 4(a)(4) provision relating to a motion under Rule 59 to alter or

amend the judgment." Nw. Nat’l. Ins. Co. v. Alberts, 937 F.2d 77, 81 (2d Cir. 1991)

(internal quotation omitted).

      If an order granting a preliminary injunction is to be reviewed prior to appeal

from the final judgment, the appeal must be taken within thirty days after the date of

entry of the injunction unless a timely motion has been made under Fed. R. Civ. P.

59(e) to alter or amend the injunction decision, or under some other pertinent Rule

specified by Fed. R. App. P. 4(a)(4)(A) as extending the appeal deadline. See Favia v.

Ind. Univ. of Pa., 7 F.3d 332, 337-38 (3d Cir.1993) (finding that the thirty-day limit

may not be circumvented by seeking relitigation of the original issues in the guise of

a motion to dissolve or modify the injunction and appealing from the denial of that

motion); Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 400 -01 (2d Cir. 2000).


                                           7
      The district court entered its order denying White’s motion for injunctive relief

on March 31, 2005. White did not file an appeal within thirty days of that order.

Accordingly, this court does not have jurisdiction to review the district court’s denial

of the motion for a preliminary injunction.

                 II. § 1983 Claims related to Disciplinary Conviction

Due Process

      The Supreme Court has held that “a prisoner in state custody cannot use a §

1983 action to challenge ‘the fact or duration of his confinement.’” Wilkinson v. Dotson,

544 U.S. 74, 78 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). In

Heck, the Court held that a prisoner cannot maintain a §1983 action for monetary

damages if “establishing the basis for the damages claim necessarily demonstrates the

invalidity of the conviction,” unless the prisoner can prove that “the conviction or

sentence has already been invalidated,” 512 U.S. at 481-82, 487.2

      The district court correctly rejected White's due process claim, reasoning that

White had no §1983 damages claim “absent a showing that the disciplinary case has

been reversed, set aside, expunged, or otherwise declared invalid by state proceedings

or through the issuance of a federal writ of habeas corpus.” Memorandum Opinion at

7, White v. Fox, No.6:05cv26 (D. TX. filed Sep 8, 2005) (citing Edwards, 520 U.S. at




      2
       Heck applies to this case, for the term “conviction” includes rulings from
      prison disciplinary proceedings. Clarke v. Stalder, 154 F.3d 186, 189
      (5th Cir. 1998)(en banc).

                                           8
644).

Disciplinary Charge

        A prisoner cannot bring a §1983 action seeking damages (rather than the

recovery of good-time credits) based on a “conviction” until that “conviction” has been

reversed on direct appeal, expunged by executive order, or otherwise declared invalid

in a state collateral proceeding or by the issuance of a federal writ of habeas corpus,

if a favorable judgment would “necessarily imply” the invalidity of the prisoner's

“conviction” or the length of his confinement. Heck, 512 U.S. at 486-87. A “conviction,”

for purposes of Heck, includes a ruling in a prison disciplinary proceeding that results

in a change to the prisoner's sentence, including the loss of good-time credits. See

Edwards, 520 U.S. at 643.

        White argues that the magistrate judge erred by dismissing his lawsuit without

addressing his claims of being falsely charged with a disciplinary violation and being

denied due process at the disciplinary hearing. White argues that his due process

rights were violated as he received less than twenty-four-hour notice before the

hearing, was not allowed to call witnesses, and was not permitted to obtain necessary

documentary evidence. White contends that the magistrate judge erred by dismissing

his claims of deprivation of constitutional rights due to the failure of prison officials

to provide him with a written statement of reasons for the disciplinary conviction.

        The magistrate judge concluded that White’s challenge to the disciplinary

proceedings was without merit because White failed to make the required showing

                                           9
under Edwards that the disciplinary case was reversed or otherwise held invalid. To

the extent that White seeks restoration of good-time credits, reversal of the disciplinary

board's decision, and expungement of the disciplinary proceeding from his record,

Preiser, 411 U.S. at 489 and Heck, 512 U.S. at 486-87, bar these avenues of relief,

because such relief either directly or indirectly challenges the validity of the

disciplinary board's finding of guilt and of the sanction imposed. See also Wilkinson,

544 U.S. at 78-82.

       While the majority of White’s arguments are meritless, this court must address

White’s argument that his constitutional rights were violated because he failed to

receive a written report of the statement of evidence relied upon in the disciplinary

case. White argues that he was provided a incomplete copy of the written reasons and

was forced to file his administrative appeal based on the incomplete copy. Then, after

he filed the administrative appeal, prison officials completed the disciplinary findings

by altering the documents he had filed into the record.

       Our opinion in Mahogany v. Stalder3, though unpublished and not binding

precedent, is instructive here. In Mahogany a prison disciplinary board found Mahogany guilty

of fighting and sentenced him to four weeks of cell confinement and forfeiture of ninety days

of good-time credits. Mahogany, 242 Fed.App’x. at 262. After exhausting the two-step prison

grievance procedure, Mahogany filed a §1983 civil rights action, alleging that the disciplinary

proceeding violated his right to procedural due process because he did not receive a written



       3
        242 Fed. App’x. 261 (5th Cir. 2007).

                                              10
statement of the evidence relied on during the proceeding or the reasons for the disciplinary

action. In his prayer for relief, Mahogany asked the court to (1) restore his forfeited good-time

credits; (2) reverse the disciplinary board's decision and expunge the results of the disciplinary

proceeding from his prison record; and (3) award him monetary damages. Id. The court held

that even though Mahogany’s claims for reversal of the board decision, expungement of

disciplinary proceedings, and restoration of good-time credit were barred by Heck, Mahogany’s

§1983 action claiming a violation of due process from the prison official’s failure to provide a

written statement of evidence in his disciplinary board proceeding was not barred. Id. at 263.

       The Supreme Court has recognized an inmate's right to seek damages under §1983 for

the denial of procedural due process rights during prison disciplinary hearings, including the

right to receive a written statement of the evidence relied on during those proceedings. Wolff

v. McDonnell, 418 U.S. 539, 554-55, 563-64 (1974). In Heck, the Court observed that the

damages sought in Wolff were “‘damages for the deprivation of civil rights,’” and not “‘damages

for the deprivation of good-time credits.’” 512 U.S. at 482. The Court further noted that there

was no indication in Wolff that “using the wrong procedures necessarily vitiated the denial of

good-time credits. Thus, the claim at issue in Wolff did not call into question the lawfulness of

the plaintiff's continuing confinement.” Id. at 483; see also Edwards, 520 U.S. at 649-50

(Ginsburg, J., concurring) (suggesting that failure to provide facts and evidence supporting a

finding of guilt “would not necessarily imply the invalidity of the deprivation of good-time

credits, and therefore is immediately cognizable under §1983”).

       A claim for damages based on a failure to receive a written statement of the evidence

relied on in a prison disciplinary proceeding is cognizable under §1983. Therefore, the district

court in this case erred in dismissing White's §1983 claim in its entirety.


                                               11
Substitute Counsel Claim

       A violation of 42 U.S.C. § 1983 occurs when a person is deprived of "rights, privileges,

or immunities secured by the Constitution and laws" under the "color of any statute, ordinance,

regulation, custom, or usage, of any state or territory or the District of Columbia." Williams

v. Comer, No. 1:02CV435-D-A , 2003 WL 23199524 at *4 (N.D. Miss. Nov. 26, 2003); see also

Banuelos v. McFarland, 41 F.3d 232 (5th Cir. 1995). The district court did not err in dismissing

White’s claims against Ham, his substitute prison counsel in the prison disciplinary proceeding,

because there is no evidence of a state action.

Liberty Interest

       White failed to state a valid claim under §1983 for the denial of his right to good-time

credits because under that statute a prisoner cannot recover good-time credits lost in a

disciplinary proceeding. Clark v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998). Moreover, White

has no liberty interest in his ability to earn future good-time credits. White’s procedural due

process claim, insofar as it is premised on his inability to accrue good time credit, does not

implicate a cognizable liberty interest. Pfeil v. Freudenthal, No. 07-1-312, 2008 WL 2416291at

*2(5th Cir. June 16, 2008); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).

                    III. §1983 Claims Not Related to Disciplinary Action

Snitch Claims and Severance

       White complained that prison officials acted with deliberate indifference to his safety

for falsely labeling him a “snitch” and then transferring him to another unit where he was

subjected to violent physical and sexual assaults. White testified during the Spears hearing

that this designation had a negative impact on him when he was transferred to the Darrington



                                              12
Unit,4 yet the magistrate judge erroneously concluded that White had suffered no harm from

this designation and his subsequent transfer.

       White argues that this cause of action accrued in the Eastern District of Texas, that the

injuries incurred in the Darrington Unit were the result and continuation of decisions made

in the Eastern District of Texas, and that the court erred in severing and transferring claims.

White alleges that he was designated a snitch at the Michael Unit, in the Eastern District of

Texas, and this designation continued when he was transferred to the Darrington Unit in the

Southern District of Texas.

       We cannot say that White’s snitch claim is “indisputably meritless” or “wholly

incredible” such that it lacks an arguable basis in law or fact because the records upon which

the district court relied have not been made a part of this record. Fowler v. Lynaugh, 69 F.3d

535 (5th Cir. 1995). The district court found that White’s claims in the Eastern District of

Texas, including those claims arising in the Michael Unit, should be dismissed as frivolous.

The court further found that the proper venue for the remaining claims, including those arising

in the Darrington Unit, should be be severed and transferred to the Southern District of Texas.

       Remand is necessary to determine whether the transfer of the claims arising in the

Darrington Unit was appropriate. This will depend upon the district court’s reconsideration

of the snitch designation and the alleged injuries sustained as a result of that designation.

Accordingly, we conclude that the district court abused its discretion in dismissing White’s

snitch claim under §1915(d).

Confiscation of Personal Property




       4
        The Darrington Unit is located in the Southern District of Texas.

                                              13
       White alleged that his personal property was confiscated in retaliation for his legal

activities. The magistrate judge provided a detailed analysis of White’s confiscation of property

and retaliation claims. On appeal, White made conclusory allegations that did not address the

magistrate’s detailed analysis. White did not adequately brief and discuss his confiscation

claim. He has therefore abandoned that claim. See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987) (stating that this court will not raise and discuss legal

issues that an appellant has failed to assert); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)

(emphasizing that although pro se briefs are construed liberally, pro se parties must still brief

the issues and reasonably comply with Fed. R. App. P. 28(a)). White failed to brief this claim

adequately, therefore it will not be considered on appeal. See Johnson v. Zumbro, 220 F.3d

586 (5th Cir. 2000); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P.

28(a)(9).

Review of the Record

       White argues that the magistrate judge erred in failing to conduct a de novo review of

the record. White asserts that the magistrate judge did not consider his retaliation claims,

accepting all of the alleged facts as true. The magistrate judge considered White’s conclusory

allegations and found them to be frivolous, holding that White “did not offer any specific link

between his legal activity and the disciplinary case which he received, beyond the fact that he

engaged in legal activity and subsequently received the disciplinary case.”

       The district court did not err in finding that White’s conclusory allegations of retaliation

are insufficient to state a claim. Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).

                                        CONCLUSION

       A claim for damages based on a failure to receive a written statement of the evidence

                                               14
relied on in a prison disciplinary proceeding is cognizable under §1983. Consequently, the

district court in this case erred in dismissing White's §1983 claim in its entirety. The district

court should not have dismissed White's §1983 claim insofar as White seeks damages for the

violation of his due process rights. We therefore REVERSE this aspect of the district court's

order, and REMAND for reconsideration consistent with this opinion.

       The district court correctly dismissed White's claim to the extent that he sought

restoration of good-time credits, reversal of the disciplinary board's decision, and expungement

of the disciplinary proceedings from his record. We therefore AFFIRM this aspect of the district

court's order.

       On remand, the district court should decide White's §1983 claim to the extent that

White seeks damages for the disciplinary board's failure to provide him with a written

statement of the evidence relied on during the disciplinary proceeding. The court should also

consider the “snitch” claim and the alleged harm that resulted from this designation. We

caution, however, that the damages cannot encompass the “injury” of being deprived of good-

time credits, and must stem solely from “the deprivation of civil rights.” Heck, 512 U.S. at 482-

83, 487 n.7; see also Wolff, 418 U.S. at 555.

       AFFIRMED IN PART, REVERSED IN PART and REMANDED.




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