                       REVISED APRIL 26, 2011
             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                                  Fifth Circuit

                                                                                                FILED
                                                No. 09-30397                                   April 20, 2011

                                                                                               Lyle W. Cayce
                                                                                                    Clerk
NATHAN ROLLINS,

                                                              Plaintiff-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; JOHN B.
JOSEPH, CCM1; JIMMY SMITH, Lieutenant Colonel; RICHARD STALDER,
SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,

                                                              Defendants-Appellees


                         Appeal from the United States District Court
                             for the Middle District of Louisiana
                                    USDC No. 3:07-CV-463


Before JONES, Chief Judge, BENAVIDES, Circuit Judge, and AYCOCK,
District Judge.*
SHARION AYCOCK, District Judge.**
        Nathan Rollins, Louisiana prisoner # 131530, filed a pro se, in forma
pauperis (IFP), civil rights suit against officials at the Louisiana State
Penitentiary at Angola (Angola) alleging that his housing assignment violated
his due process and other constitutional rights.


        *
             District Judge of the Northern District of Mississippi, 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 R. 47.5, the court has determined that this opinion should not be published and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.
      The defendants filed a motion for partial summary judgment based on
qualified immunity. They also filed a motion to dismiss the suit pursuant to
Federal Rule of Civil Procedure 12(b)(6). The magistrate judge recommended
that the defendants’ motion to dismiss be granted, and that the motion for
summary judgment be denied as moot.                              The district court adopted the
magistrate judge’s recommendation over Rollins’ objection and granted the
defendants’ motion to dismiss. Rollins timely appealed. The district court
denied Rollins’ motion to proceed IFP on the basis that the appeal was not taken
in good faith. Rollins then sought authorization from this Court for leave to
proceed IFP on appeal. This Court denied Rollins’ motion in part, but granted
him IFP status on the sole issue of whether his housing assignment violated his
due process rights. We affirm the district court.
                                     BACKGROUND FACTS
      On June 30, 2006, Rollins, an inmate at Rayburn Correctional Center
(formerly the Washington Correctional Institute), was found guilty by a prison
disciplinary board of “aggravated work offenses” and sentenced to four weeks of
cell confinement. On July 5, 2006, Rollins was transferred from Rayburn
Correctional Center to Angola.3 While at the Angola reception center, Rollins
was notified that he had been assigned to the maximum security unit at Camp-J.
Rollins was then placed in Camp-J administrative segregation. A review board
consisting of defendants Jimmy Smith and John Joseph was held outside Rollins’
presence. Rollins received a “board sheet” through prison mail stating the
reason for his assignment to Camp-J was “nature of the original reason for lock-
down [and] serious rule infraction.” Rollins asserts that there was no “original
reason” for the lock-down, and he had committed no rule infractions at Angola.


      3
          Rollins asserts his geographic transfer had nothing to do with his most recent disciplinary infraction.

                                                       2
        Rollins filed an administrative grievance. In response, he was told that
his assignment to Camp-J was due to battery on a correctional officer and
introduction of contraband into a correctional facility. The introduction of
contraband offense occurred on February 29, 2004, and the battery on a
correctional officer occurred on January 18, 2005. Rollins had previously served
disciplinary sentences for these infractions while housed at Rayburn
Correctional Center.
         The defendants state that Camp-J is for “[i]nmates who require a higher
degree of physical control because they have been found guilty of committing
serious rule violations.” Rollins describes Camp-J as “a special (super max)
punitive management program.” Camp-J is a three level program – Level I
inmates receive the least amount of privileges, while Level III inmates receive
the most. Although the exact date is not clear from the record before the court,
at some point shortly after his arrival at Camp-J, Rollins was transferred out of
administrative segregation and placed in Camp-J Level II.
        As of the time of Rollins’ amended complaint,4 filed on January 15, 2008,
he claims to have spent three months in Camp-J Level II and fifteen months on
Level III. Rollins asserts that Angola officials have reviewed his classification
twenty times,5 and after each review he is informed that his classification is
based on a serious rule infraction. Rollins claims that he received only “mock


        4
            The district court denied Rollins’ motion to amend. However, under the rules in effect at the time,
Rollins was permitted to amend once as a matter of course before a responsive pleading had been filed. FED.
R. CIV. P. 15(a); Ayanbadejo v. Chertoff, 517 F.3d 273, 278 (5th Cir. 2008). Because the defendants had not
responded to Rollins’ complaint when he filed his motion to amend, the district court abused its discretion when
it denied the motion. See Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 177 (5th Cir. 2007).
Therefore, in determining whether Rollins has stated a claim for a due process violation, we will also consider
the allegations in his amended complaint.
        5
          In his brief, Rollins asserts that his status has now been reviewed “twenty-five (25) times, and a [sic]
additional twenty (20) times.”

                                                        3
reviews” before the board, that he was not given an opportunity to discuss the
merits of his case, and that the warden told him he will remain in Camp-J
indefinitely. We note that as of the date of his last filing in this case (October 27,
2010), Rollins is no longer housed in Camp-J.
                           STANDARD OF REVIEW
      Review of the district court’s Rule 12(b)(6) dismissal of Rollin’s complaint
is de novo. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th
Cir. 2007). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id., 173 L. Ed. 2d 868. “We do not accept as
true conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); see also
Iqbal, 129 S. Ct. at 1950, 173 L. Ed. 2d 868 (“While legal conclusions can provide
the framework of a complaint, they must be supported by factual allegations.”).
“The ultimate question in a Rule 12(b)(6) motion is whether the complaint states
a valid claim when all well-pleaded facts are assumed true and are viewed in the
light most favorable to the plaintiff.” Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
                                  DISCUSSION
A.    Record on Appeal
      As an initial matter, this Court previously granted defendants’ motion to
supplement the record on appeal.          Defendants have produced additional
documentation to support their motion to dismiss which was never presented to

                                          4
the district court.6 In considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), “the court’s review is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion
to dismiss that are central to the claim and referenced by the complaint.” Lone
Star Fund, 594 F.3d at 387. Furthermore, this Court will not consider evidence
produced for the first time on appeal. See Leonard v. Dixie Well & Supply, Inc.,
828 F.2d 291, 296 (5th Cir. 1987). Because the supplemental evidence presented
by the defendants was not before the district court and may not be considered
under Rule 12(b)(6), the Court finds the clerk’s order granting the defendant’s
motion to supplement the record on appeal was improvidently granted. The
additional evidence submitted is stricken and will not be considered by this
Court.
B.      Due Process Claim
        Rollins argues that his placement in Camp-J violated his Fourteenth
Amendment rights because he was placed there without a fair hearing. To
maintain this due process challenge, Rollins must show that his placement and
confinement in Camp-J deprive him of a cognizable liberty interest protected by
the Fourteenth Amendment. Hernandez v. Velasquez, 522 F.3d 556, 562 (5th
Cir. 2008) (citing Meachum v. Fano, 427 U.S. 215, 223, 96 S. Ct. 2532, 49 L. Ed.
2d 451 (1976)). In general, a prisoner has no liberty interest in his custodial
classification. Id. (citations omitted). This court has repeatedly affirmed that
“[p]rison officials should be accorded the widest possible deference” in classifying


        6
           Among other things, the supplemental evidence shows that Rollins received state court convictions
for introducing contraband into a correctional facility and battery on a correctional officer; information on
living conditions and the privileges available to inmates in the different levels of Camp-J; and records showing
Rollins was released to Camp-C on September 24, 2008. Rollins subsequently committed disciplinary
infractions which resulted in him being placed in administrative segregation for nearly three months and then
reassigned to Camp-J on December 21, 2009.

                                                       5
prisoners' custodial status as necessary “to maintain security and preserve
internal order.” Id. (citing McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir.
1990); Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2003)). “Only when a
prisoner demonstrates ‘extraordinary circumstances’ may he maintain a due
process challenge to a change in his custodial classification.” Id. The Supreme
Court has stated that only those conditions which impose “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life” will implicate the protection of the Due Process Clause of the United States
Constitution. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed.
2d 418 (1995).
      However, before the Sandin test is triggered, it is crucial to determine
whether Rollins placement in Camp-J was an “initial classification” or a punitive
measure in response to his violation of prison rules. In Wilkerson, this Court
explained:
      In resolving the nature of the liberty interest and the process that
      is due for confinement of prisoners in extended lockdown under
      these circumstances, it is crucial to know whether, based on their
      crimes of conviction, the inmates’ confinement is the result of an
      initial classification by prison officials as opposed to confinement for
      violations of less serious prison disciplinary rules. Generally, courts
      are not concerned with a prisoner’s initial classification level based
      on his criminal history before his incarceration. . . . Thus, if the
      inmates’ confinement in extended lockdown is not the result of their
      initial classification, the Sandin test would be triggered.

Wilkerson, 329 F.3d at 435-36.
      The district court, relying on Wilkerson, concluded that Rollins’
assignment to Camp-J was an initial classification, stating “prison officials
determined that placement of the plaintiff in a restrictive environment at
[Angola] was appropriate, and the Court will not second guess this


                                         6
determination.” The defendants argue on appeal that Rollins’ placement in
Camp-J upon his arrival at Angola was an initial classification, rather than a
disciplinary measure for his previous misbehavior, and therefore, the Sandin
test is not implicated.7 This Court has not yet addressed a situation such as this,
where a prisoner is transferred to a new facility, and his housing assignment is
based upon infractions committed at a prior facility. While we do not hold that
consideration of a transferee’s prior disciplinary history always transforms an
initial classification into a punitive act, Rollins’ pleadings indicate that he was
placed in Camp-J solely because of disciplinary violations that occurred at the
Rayburn Correctional Center. Further, Angola’s own documentation states that
Rollins’ “reason for original lockdown” is a “rule violation.”                     Therefore, taking
as true Rollins’ factual allegations, Iqbal, 129 S. Ct. at 1949, 173 L. Ed. 2d 868,
for 12(b)(6) purposes, we find that Rollins’ placement in Camp-J was
“confinement for violations of less serious prison disciplinary rules.” Wilkerson,
329 F.3d at 435. Accordingly, the Court’s inquiry now shifts to whether Rollins
has pleaded sufficient facts to demonstrate that his placement in Camp-J
imposes an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S. Ct. 2293.
        In Wilkinson v. Austin, the Supreme Court found conditions at an Ohio
“supermax” prison, when taken together, imposed an “atypical and significant
hardship” so as to implicate a liberty interest under the due process clause. 545
U.S. 209, 223-24, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005). The Court reached
that finding when presented with the following conditions: (1) almost all human
contact was prohibited, even to the point that the cells were constructed to


        7
           In particular, they argue the classification was based upon the state court convictions Rollins
received for battery on a correctional officer and introduction of contraband into a correctional facility;
however this was not presented to the district court and will not be considered here. See Part A, supra.

                                                    7
prevent cell to cell communication; (2) opportunities for visitation were rare and
in all events conducted only through glass walls; (3) cell lights remained on at
all times; (4) placement in the facility was indefinite, and after an initial 30 day
review, only reviewed annually; and (5) placement in the facility disqualified an
otherwise eligible inmate for parole consideration. Id. at 214, 224, 125 S. Ct.
2384. The Court concluded “[w]hile any one of these conditions standing alone
might not be sufficient to create a liberty interest, taken together they impose
an atypical and significant hardship within the correctional context.” Id. at 224,
125 S. Ct. 2384.
      In Wilkerson v. Stalder, this Court found that plaintiffs held in extended
lockdown in Angola for approximately thirty years might have a due process
claim.   Wilkerson, 329 F.3d at 433, 436. The conditions of the inmates’
confinement was described as
      the effective equivalent of solitary confinement. Prisoners in
      extended lockdown remain alone in a cell approximately 55 to 60
      square feet in size of [sic] 23 hours each day. One hour each day, the
      prisoner may shower and walk along the tier on which his cell is
      located. Three times a week, weather permitting, the prisoner may
      use this hour to exercise alone in a fenced yard. Additional
      restrictions are placed on generally available inmate privileges
      including those pertaining to personal property, reading materials,
      access to legal resources, work and contact visitation.

Id. at 433. This court remanded the matter, in part, “to determine the

appropriate baseline against which to measure the inmates’ confinement in

reviewing whether the inmates’ confinement is ‘atypical.’” Id. at 436.

      Here, the district court initially concluded that Rollins’ assignment to

Camp-J was an initial classification and no due process right was implicated.



                                         8
However, it also determined, in the alternative, that Rollins had failed to state

a claim for a due process violation under the Sandin test. We agree.

        Rollins expresses great dissatisfaction with his confinement at Camp-J,

but fails to allege what conditions there subject him to atypical and significant

hardship in relation to the ordinary incidents of prison life. Although Rollins

describes Camp-J as a “maximum security lockdown,” his pleadings contain

virtually no description of the conditions there other than a general assertion

that “Plaintiff has been forced to live under harsh conditions such as verbal

abuse, stress, and mental anguish. Pain and suffering has become a part of the

plaintiff's everyday struggle.” Unfortunately, this is hardly an atypical condition

of prison life.8         While Rollins’ amended complaint avers “his confinement in

extended lockdown for said duration, presents an atypical and significant

hardship, and extraordinary circumstances,” he fails to allege facts to support

this conclusion.

            We agree with the district court that Rollins has failed to show his

placement in Camp-J imposed an atypical or significant hardship beyond the

ordinary incidents of prison life such that he was deprived of a cognizable liberty



        8
           See Harper v. Showers, 174 F.3d 716, 717-19 (5th Cir. 1999) (no due process violation where
inmate claimed he was placed in lockdown “next to psychiatric patients who scream, beat on metal toilets, short
out the power, flood the cells, throw feces, and light fires, resulting in his loss of sleep for days at a time;” was
often “moved into filthy, sometimes feces-smeared, cells that formerly housed psychiatric patients;” and was
deprived of “cleanliness, sleep, and peace of mind”).

                                                         9
interest . See Fisher v. Wilson, 74 F. App’x 301, 2003 WL 21654031, at *1 (5th

Cir. July 14, 2003) (“Fisher’s complaint failed to state a claim because Fisher has

not shown how placement in extended lockdown presented an atypical or

significant hardship”); Bannister v. Deville, 211 F.3d 593, 2000 WL 329244, at

*1 (5th Cir. Mar. 20, 2000) (“[Bannister] merely complains that he was

transferred to an extended lockdown facility where he was not entitled to the

privileges enjoyed by the general population. Bannister’s placement in [Camp-J]

did not constitute a deprivation of a constitutionally cognizable liberty interest

that entitled him to procedural due process during the disciplinary

proceedings”). The district court’s dismissal of this case is affirmed.

                                CONCLUSION

      For the aforementioned reasons, the judgment of the district court is

AFFIRMED.




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