     Case: 10-30053 Document: 00511401495 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011

                                       No. 10-30053                         Lyle W. Cayce
                                                                                 Clerk

MARK HANNA

                                                   Plaintiff - Appellant
v.

DELMER MAXWELL; JANE WOMACK; TIM WILKINSON; TODD
THOMAS; MONA HYSE; LIONEL TELSEE; RICHARD STALDER; LINDA
RAMSEY

                                                   Defendants - Appellees




                   Appeals from the United States District Court
                       for the Western District of Louisiana
                           USDC No. 1:08-cv-01230-DDD


Before JONES, Chief Judge, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Mark Hanna (“Hanna”), Louisiana prisoner # 132872, proceeding pro se
and in forma pauperis (“IFP”), appeals the district court’s dismissal of his
complaint under 28 U.S.C. §1915(e)(2)(B)(i) and (ii). Hanna’s appellate brief
challenges the district court’s dismissal of his § 1983 complaint seeking damages
against certain prison corrections officers, wardens, and officials of the Louisiana



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30053 Document: 00511401495 Page: 2 Date Filed: 03/03/2011




                                        No. 10-30053

Department of Public Safety and Corrections (“LDOC”) for violation of rights
guaranteed to him by the First, Fourth, and Fourteenth Amendments. Hanna
claims that these officials violated his constitutional rights by wrongfully
convicting him for defiance after he refused an invasive medical procedure and
threatened to sue prison officials. This disciplinary conviction resulted in his
loss of 180 days of “good time” credit and his confinement in isolation for 10
days. After an independent review of the record, the district court adopted the
recommendation of the magistrate judge (“MJ”) to dismiss Hanna’s § 1983
complaint for failure to state a claim upon which relief could be granted under
§ 1915(e)(2)(B)(i) and (ii), before service of process.1 Hanna timely filed at least
one notice of appeal.2
       “The Prison Litigation Reform Act (PLRA) amended § 1915 to require the
district court to dismiss in forma pauperis (IFP) prisoner civil rights suits if the
court determines that the action is frivolous or malicious or does not state a
claim upon which relief may be granted.” Black v. Warren, 134 F.3d 732, 733
(5th Cir. 1998) (citing § 1915(e)(2)(B)(i) & (ii)). This court reviews dismissals for
failure to state a claim under § 1915(e)(2)(B)(ii) de novo, using the same



       1
        We reject Hanna’s claim that the MJ’s request for documents that might help Hanna
make out a case was improper. Though the primary ways of curing inadequacy in a prisoner’s
pleadings are: holding a hearing pursuant to Spears v. McCotter, 766 F.2d 179, 181-82 (5th
Cir. 1985), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319, 324 (1989); and
making a request for a more definite statement from the prisoner through a questionnaire
designed to “bring into focus the factual and legal bases of prisoners’ claims,” Eason v. Thaler,
14 F.3d 8, 9 (5th Cir. 1994), there is no bar to the MJ’s method. Moreover, the district court’s
decision did not improperly rely on these documents.
       2
        A copy of the envelope attached to the notice of appeal reflects a postmark of January
4, 2010. As the notice was due on this date, the notice was timely submitted under the
prisoner’s mailbox rule. FED . R. APP . P. 4(c)(1).

                                               2
     Case: 10-30053 Document: 00511401495 Page: 3 Date Filed: 03/03/2011




                                       No. 10-30053

standard applicable to dismissals pursuant to F ED. R. C IV. P. 12(b)(6). Warren,
134 F.3d at 734 (5th Cir. 1998). We review a determination by a district court
that a case is frivolous as per § 1915(e)(2)(B)(i), for abuse of discretion. See
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
       We find that the district court erred in dismissing Hanna’s claim of
retaliation for his refusal of medical treatment. With regard to the rest of the
dismissal, we find no error or abuse of discretion.3
       “To state a valid claim for retaliation under section 1983, a prisoner must
allege (1) a specific constitutional right, (2) the defendant’s intent to retaliate
against the prisoner for his or her exercise of that right, (3) a retaliatory adverse
act, and (4) causation.” Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).
The district court dismissed Hanna’s retaliation claim on the ground that the
disciplinary sanctions Hanna suffered were de minimis. The court based that
finding on the fact that Hanna refused medical care and filed grievances after
his punishment. Hanna was not required to allege that the retaliatory adverse
act had stopped him from pursuing his constitutional rights, however. The
district court improperly applied a subjective standard in assessing the adversity



       3
         The Court declines to consider Hanna’s argument regarding habeas corpus comity
considerations because he fails to coherently brief this issue. See Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995) (pro se parties must still brief the issues and reasonably comply with
the requirements of Federal Rule of Appellate Procedure 28). Additionally, because there has
been no determination that Hanna suffered a constitutional violation, the Court will not
consider Hanna’s premature claim that he is entitled to nominal and/or punitive damages as
the prevailing party in this case. See Brown v. Sudduth, 255 F. App’x 803, 808 (5th Cir. 2007)
(“the issue of damages is premature given that there has been no determination of whether
Brown has even suffered a constitutional violation in the first place”). Third, because neither
the MJ nor the district court suggested Hanna’s claims were unexhausted, this Court need not
address Hanna’s argument that he did not procedurally default his claim. See Jones, 549 U.S.
at 216 (failure to exhaust is an affirmative defense).

                                              3
     Case: 10-30053 Document: 00511401495 Page: 4 Date Filed: 03/03/2011




                                  No. 10-30053

of the retaliatory act. See Morris v. Powell, 449 F.3d 682, 684-86 (5th Cir. 2006)
(the act must be “capable of deterring a person of ordinary firmness from further
exercising his constitutional rights” ). The sanctions of ten days of confinement
in isolation, and loss of 180 days of “good time” credit are more than mere de
minimis adverse actions under this Circuit’s case law. See, e.g., Hart, 343 F.3d
at 763-64 (finding that the actions of prison officials were not de minimis where,
in response to a grievance filed by a prisoner, disciplinary proceedings were
initiated, resulting in 27 days of cell restrictions and loss of commissary
privileges); Andrade v. Hauck, 452 F.2d 1071, 1071-72 (5th Cir. 1971) (alleging
denial of commissary privileges in retaliation for writing to a judge is sufficient
to avoid dismissal of a § 1983 complaint). Additionally, Hanna has sufficiently
alleged the other elements of a retaliation for refusal of medical treatment claim.
His complaint sufficiently identifies his Fourteenth Amendment due process
right to refuse medical treatment. See Washington v. Harper, 494 U.S. 220, 221-
27 (1990).   The chronology of events described in the complaint shows a
retaliatory motive, as well as causation, as Hanna allegedly received a formal
punishment for his refusal of medical treatment, i.e. the two events were directly
linked. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); c.f. Hart v.
Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (holding that a chronology of events
showing retaliatory motive had been established where a disciplinary charge
was accompanied by a letter the prisoner had written against the charging
officer).
       Hanna has not made out a claim for retaliation for exercise of any other
constitutional right, however.    Although complaining about the conduct of
corrections officers through proper channels is a constitutionally protected


                                         4
    Case: 10-30053 Document: 00511401495 Page: 5 Date Filed: 03/03/2011




                                  No. 10-30053

activity, see Morris, 449 F.3d at 684, Hanna did not allege that he suffered
retaliation after complaining through proper channels; rather, he alleged
retaliation after threatening to file a lawsuit during a confrontation with
corrections officers. Thus the district court’s error as to the dismissal of that
claim was harmless.
      Hanna’s substantive due process claim also fails. Substantive due process
“bars certain arbitrary, wrongful government actions regardless of the fairness
of the procedures used to implement them.” Zinermon v. Burch, 494 U.S. 113,
125 (1990) (internal quotation marks and citation omitted). To the extent Hanna
has properly raised this claim on appeal, we find that Hanna’s claim fails
because he never served more time than was initially imposed for his illegal
possession conviction. See Richardson v. Joslin, 501 F.3d 415, 418-19 (5th Cir.
2007). Hanna received a two-year sentence for his battery offense, which was
ordered to run concurrent to the remainder of his illegal possession sentence.
While Hanna’s sentence was initially prolonged by 90 days due to the forfeiture
of his “good time” credits, the revocation of Hanna’s “good time” parole
supervision resulted in his return to prison “for the remainder of the original full
term” of his illegal possession sentence. L A. R EV. S TAT. A NN. § 15:571.5C; see
Howard v. Louisiana Bd. of Probation and Parole, 589 So. 2d 534, 534-36 (La.
App.), writ denied, 590 So. 2d 87 (La. 1991). Hanna was released from prison on
October 13, 2007, after serving a two-year sentence for the second degree battery
conviction and a concurrent 24 of the 27 months remaining on his illegal
possession conviction.    The 90 days of Hanna’s illegal possession sentence,
served prior to his release on “good time” parole supervision, were subtracted
from the remainder of his illegal possession sentence.


                                         5
    Case: 10-30053 Document: 00511401495 Page: 6 Date Filed: 03/03/2011




                                 No. 10-30053

      We also agree with the district court’s conclusion that Hanna’s complaints
about his 10-day confinement in isolation, denial of a mattress for 16 hours of
each day in isolation, and loss of commissary and recreation privileges while in
isolation were not sufficiently atypical or such a significant hardship to
constitute grounds for a constitutional claim.
      Finally, to the extent Hanna makes a procedural due process claim, it is
unavailing. In the context of a disciplinary proceeding, due process does not
require that a prisoner be afforded an appeal. See Giovanni v. Lynn, 48 F.3d
908, 911 & n.7 (5th Cir. 1995). Delay of Hanna’s appeal thus cannot support a
procedural due process claim under § 1983. See id.
      For the aforementioned reasons, the judgment of the district court is
AFFIRMED in part, VACATED in part, and REMANDED for further
proceedings as appropriate.




                                       6
