     Case: 09-30667     Document: 00511008662          Page: 1    Date Filed: 01/20/2010




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

                                                  FILED
                                                                          January 20, 2010
                                     No. 09-30667
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ALEX JACKSON,

                                           Plaintiff - Appellant

v.

DARRYL MIZZEL, Captain; RICHARD STEADMAN, Lieutenant; LARRY
JACKSON, Sergeant; ROBERT TANNER, Warden; JAMES LEBLANC,
Secretary, Louisiana Department of Corrections; JAMES HAYES, Prisoner; J.
R. THOMAS, Captain,

                                           Defendants - Appellees




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                           USDC No. 2:09-cv-03003-CJB


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Alex Jackson, a Louisiana state prisoner, filed this 42 U.S.C. § 1983 action
against his jailors. The district court – upon the magistrate judge’s 28 U.S.C. §
1915A recommendation – dismissed Jackson’s case for failure to state a claim.
Jackson appeals, and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                              I. BACKGROUND


      Jackson and another inmate – James Hayes – got into a cellblock scuffle
on the night of November 2, 2008. The guards broke it up by tackling Jackson
off of Hayes. Jackson requested emergency medical care to treat some swelling,
but the prison officials made him wait until morning to see a doctor. He also
demanded an immediate transfer to a safer prison – one closer to his hometown.
      In the aftermath of the fight, both Jackson and Hayes admitted to fighting
in violation of jailhouse rules. The prison, however, assigned an investigator to
take a closer look. Hayes eventually cracked during interrogation, explaining
that he and Jackson had staged the fight. Jackson wanted to move to a prison
closer to his home, so he offered Hayes $100 to put on the show. According to
Hayes, Jackson hit himself – causing the swelling – to make the dramatic
altercation more authentic.
      His jailors issued Jackson a disciplinary report, charging self-mutilation,
fraud (lying), and bribery. At a hearing Jackson denied the charges but offered
no substantive defense. The disciplinary chairwoman found him guilty on all
counts. The punishment included eight dollars of restitution, no phone for two
months, and loss of 55 days of good-time credit.
      Jackson filed this § 1983 claim in federal court. He alleged that the
guards: (1) had failed to protect him during the fight; (2) wrongfully had delayed
medical treatment; (3) had prosecuted him maliciously at the disciplinary
hearing; (4) had denied him adequate procedures at the hearing; and (5) have
since retaliated against him for filing a complaint. Jackson also attached several
pendent state law claims.


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      Pursuant to 28 U.S.C. § 1915A, the magistrate judge recommended
dismissal of the action as frivolous and for failure to state a claim.1           In
particular, Heck v. Humphrey 2 barred Jackson from recovering damages on the
failure to protect claim, unless he first overturned the disciplinary conviction.3
The other claims had no merit. The district court adopted the magistrate judge’s
report and dismissed for failure to state a claim.
      Jackson appeals, urging that Heck does not bar all of his allegations.
According to Jackson, the Supreme Court has silently overruled the 5th Circuit
case applying Heck to prison disciplinary convictions.4 Jackson misreads the
district court order, which held that Heck bars only one of his six claims. This




      1
       The magistrate judge also mentioned 28 U.S.C. § 1915(e)(2)(B) as an
alternative basis for dismissal, which does not change our analysis of this case.
See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).
      2
          512 U.S. 477 (1994).
      3
       See id. at 486-87 (“We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983.”).
      4
       See Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (“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.”).

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court, however, liberally construes pro se filings.5 Read fairly, Jackson’s brief
contests the negative outcome on all of his claims. We understand Jackson not
only to question Heck’s applicability to the failure to protect claim but also to
challenge the district court’s order as a whole.6


                                 II. ANALYSIS


      Our caselaw is inconsistent as to whether we must review a district court’s
§ 1915A dismissal de novo or for abuse of discretion.7 We need not resolve the

      5
       See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (“[W]e liberally
construe briefs of pro se litigants and apply less stringent standards to parties
proceeding pro se than to parties represented by counsel . . . .”); Morrow v. FBI,
2 F.3d 642, 643 n.2 (5th Cir. 1993).
      6
       Jackson has sought leave of the court to supplement his brief in order
specifically to challenge the entire district court order. By instead liberally
construing Jackson’s original submission, the court effectively reaches the same
result as if we had granted leave to supplement. In other words, any
supplement would be redundant.
      7
       We have held that “we will . . . employ the . . . de novo standard to review
dismissals pursuant to § 1915A.” Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998). Two months previously, though, we had held that “[w]e review the
magistrate’s determination that [the] complaint is frivolous [under § 1915A] for
an abuse of discretion.” Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).
Subsequent cases have alternated between the two standards. See, e.g.,
Velasquez, 329 F.3d at 421 (“The standard of review of dismissals under 28
U.S.C. § 1915A . . . is de novo.”); White v. Fox, 294 F. App’x 955, 957 (5th Cir.
2008) (unpublished) (“This court reviews the district court’s dismissal as
frivolous under § 1915A for an abuse of discretion.”). The White court rightly
noted that “[w]hen panel opinions are in conflict, the earlier decision controls.”
See White, 294 F. App’x at 957 n.1 (citing United States v. Miro, 29 F.3d 194, 199
n.4 (5th Cir. 1994)). Our earlier decision (Martin), though, took the standard of

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discrepancy, though, as Jackson’s appeal fails under any standard of review.


                                  A. Failure to Protect


      Jackson alleges that the guards did not break up the fight fast enough,
causing him injury. To succeed on this damages claim, Jackson would have to
show that inmate Hayes attacked him. Jackson’s prison disciplinary proceeding
found that Jackson had staged the phony fight. Therefore, a victory on Jackson’s
§ 1983 damages claim necessarily would imply the invalidity of his otherwise
undisturbed disciplinary conviction. As our en banc court explained in Clark v.
Stalder: “A prisoner . . . cannot bring a § 1983 action seeking damages . . . based
on a ‘conviction’ until that ‘conviction has been . . . declared invalid . . . if a
favorable judgment would ‘necessarily imply’ the invalidity of the prisoner’s
‘conviction’ . . . .” 8 Of course, “[a] ‘conviction,’ for the purposes of Heck, includes
a ruling in a prison disciplinary proceeding that results in a change to the
prisoner’s sentence, including loss of good-time credits.”9
      Jackson contends that the Supreme Court decision in Wilkinson v. Austin 10




review for granted, whereas the later decision (Ruiz) embarked on a lengthy
analysis to determine the proper review. Confounding the problem, the district
court in this case dismissed under § 1915A for “failure to state a claim.”
Martin’s rule may apply only to dismissals as “frivolous” – with Ruiz’s rule
applying to failures to state a claim.
      8
          154 F.3d at 189 (citing Heck).
      9
          Id.
      10
           545 U.S. 209 (2005).

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silently overturned our Clarke rule.          He is wrong.   Among other reasons,
Wilkinson involved neither a prison disciplinary proceeding of this kind nor a
damages claim.


                                 B. Failure to Treat


      Jackson alleges that the prison staff delayed treatment of his serious
injuries.     The Eighth Amendment forbids prison officials from displaying
deliberate indifference toward prisoners’ medical needs.11 Mere negligence,
though, is not enough.12 Rather, “the legal conclusion of deliberate indifference
. . . must rest on facts clearly evincing wanton actions on the part of the
defendants.” 13 Jackson makes no such showing.
      The guards had Jackson wait until morning to see the doctors. After
examining him, the medical team noted Jackson’s swollen cheek, sore wrist, and
bruised knee. X-rays of his face, back, and knee revealed no breaks or other
serious damage. A doctor at a follow-up exam explained that the patient would
need no treatment. Jackson has not demonstrated “unnecessary and wanton
infliction of pain repugnant to the conscience of mankind,” 14 and, in any event,
a prisoner cannot recover for mere delay in medical treatment unless harm



      11
           Estelle v. Gamble, 429 U.S. 97, 103-05 (1976).
      12
           Id. at 106.
      13
       Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (internal
quotations and citations omitted).
      14
           Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).

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results.15


                              C. Malicious Prosecution


      Jackson suggests that the prison officials maliciously and without cause
instituted disciplinary proceedings against him.            “There is no federal
constitutional claim based on the tort of malicious prosecution.” 16 Because the
disciplinary board found Jackson guilty, Heck likely would bar the claim
anyway.


                 D. Inadequate Procedure at Disciplinary Hearing


      Jackson baldly states that – in losing his good-time credits at the
disciplinary hearing – he did not receive constitutionally required procedural
protections: written notice of the evidence against him and the right to call
witnesses in his defense. This court has suggested that prisoners may bring a
§ 1983 claim for damages for the deprivation of civil rights relating to
disciplinary procedures, as long as the prisoner does not challenge the
substantive result of the hearing.17 The damages sought must not “encompass


      15
           See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (citing cases).
      16
        Williams v. Dretke, 306 F. App’x 164, 166 (5th Cir. 2009) (unpublished)
(citing Castellano v. Fragozo, 352 F.3d 939, 953-54 (5th Cir. 2003) (en banc)).
      17
        Mahogany v. Stalder, 242 F. App’x 261 (5th Cir. 2007) (unpublished);
White, 294 F. App’x at 961 (“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.”); Randle v. Woods, 299 F. App’x 466, 468 (5th Cir.

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the injury of being deprived of good-time credits, and must stem solely from the
deprivation of civil rights.”18 A fine line, to be sure, but one that we need not in
this case negotiate.
      Even if Jackson could state a cognizable claim, he does not do so here. His
conclusory declaration that his jailors create an atmosphere where a prisoner
may be deprived of procedural due process does not “raise [his] right to relief
above the speculative level.” 19 Although not necessary to our decision, the record
reflects that Jackson’s claim is factually frivolous: he did receive advance notice
of both the charges and evidence against him; and he did not seek to call
witnesses at his hearing.




2008) (unpublished) (“An inmate may still be entitled to nominal monetary
damages if he proves that the procedures in a disciplinary hearing were wrong,
even if the substantive result – i.e. the deprivation of good-time credits – is
not.”). See generally Clarke, 154 F.3d at 189 (“Claims for damages and
declaratory relief challenging the procedures used in, but not the results of,
prison disciplinary proceedings are similarly not cognizable in a § 1983 action
until the relevant ‘conviction’ has been reversed, expunged, or otherwise
declared invalid if a favorable judgment would ‘necessarily imply’ the invalidity
of the prisoner’s ‘conviction’ in the disciplinary proceeding or the length of the
prisoner’s confinement.”).
      18
           Mahogany, 242 F. App’x at 263 (citing Heck) (quotations omitted).
      19
        Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).                “It is
well-established that pro se complaints are held to less stringent standards than
formal pleadings drafted by lawyers. However, regardless of whether the
plaintiff is proceeding pro se or is represented by counsel, conclusory allegations
or legal conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378
(5th Cir. 2002) (citations and quotation marks omitted).

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                                   No. 09-30667

                            E. Post-Incident Retaliation


      Jackson claims that the prison guards have retaliated against him since
he filed a complaint about their handling of the fight. He says they search his
cell, steal from him, and verbally threaten him. Of course, prison officials “may
not retaliate against or harass an inmate for . . . complaining to a supervisor
about a guard’s misconduct.” 20 Jackson, though, “alleges no factual basis for that
mere conclusionary allegation. Standing alone, the contention is frivolous.”21
      Nor does Jackson have a valid constitutional claim for underlying
searches, thefts, or threats. First, “prisoners have no legitimate expectation of
privacy,” so – absent cruel or unusual circumstances – the Constitution does not
prohibit even unreasonable cell searches.22 Second, as long as the state provides
for a meaningful post-deprivation remedy (which Louisiana does 23 ), then no
constitutional violation occurs when a state employee negligently or
intentionally deprives a prisoner of property.24 And third, freestanding “claims



      20
           Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995).
      21
           Moody v. Baker, 857 F.2d 256, 258 (5th Cir. 1988).
      22
           Hudson v. Palmer, 468 U.S. 517, 530 (1984).
      23
       Hodge v. B.B. “Sixty” Rayburn Corr. Ctr., 2008 WL 4628586, *7; 2008
U.S. Dist. LEXIS 88139, *22 (E.D. La. 2008) (citing Marshall v. Norwood, 741
F.2d 761, 764 (5th Cir. 1984)).
      24
       See Hudson, 468 U.S. at 533 (“[W]e hold that an unauthorized intentional
deprivation of property by a state employee does not constitute a violation of the
procedural requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is available.”).

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                                   No. 09-30667

of verbal abuse are not actionable under § 1983.”25


                                F. State Law Claims


      Because Jackson states not one valid federal claim, the district court
properly declined jurisdiction over his Louisiana causes of action.26


                                III. CONCLUSION


      Jackson’s complaint has no legal merit. We AFFIRM the district court’s
dismissal of all claims.     Jackson’s motions to supplement his brief and for
appointment of counsel27 – as well as any other outstanding motions – are
DENIED as moot.




      25
           See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002).
      26
       Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999) (“When a court
dismisses all federal claims before trial, the general rule is to dismiss any
pendent claims.”). We construe Jackson’s state law claims to include a putative
cause of action against inmate Hayes, as he likely did not act under the color of
law. See 42 U.S.C. § 1983. However, to the extent that Jackson alleges Hayes’s
conspiratorial involvement with the prison guards, the claim would fail for the
same reasons that the other federal claims did.
      27
       Even if the motion for appointment of counsel were not moot, we would
deny it – as Jackson’s case is neither complex nor exceptional. See Cupit v.
Jones, 835 F.2d 82, 86 (5th Cir. 1987).

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