     Case: 15-30331      Document: 00513331182         Page: 1    Date Filed: 01/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-30331                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
KENNETH OWENS,                                                            January 6, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

RICHARD L. STALDER, in his individual capacity; HENRY GOINES;
RODNEY SLAY; JANICE ELKINS; JAMES L. LEBLANC, in his official
capacity,

              Defendants - Appellants




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CV-768


Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellee Kenneth Owens filed suit against Defendants–
Appellants under 42 U.S.C. § 1983, alleging violations of his Fourteenth
Amendment rights as a result of his continued incarceration in a Louisiana
state prison. Defendants then moved for summary judgment on qualified
immunity and on other grounds. A magistrate judge thereafter submitted a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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recommendation and report to the district court that Defendants were not
entitled to qualified immunity, a recommendation to which Defendants did not
object. The district court, following the magistrate judge’s recommendation,
held that Defendants were not entitled to qualified immunity and denied
Defendants’ motion for summary judgment.            Defendants timely filed an
interlocutory appeal.     On interlocutory appeal, our review is limited to
evaluating whether the district court plainly erred in denying Defendants
qualified immunity. We hold that the district court did not plainly err in
denying qualified immunity to Defendants and AFFIRM the district court’s
judgment on qualified immunity. We DISMISS as to any other issues raised
on appeal.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      On January 4, 1989, Plaintiff–Appellee Kenneth Owens was sentenced
to thirty years of hard labor for two Louisiana state felonies and thereafter
began serving his term of incarceration in the Louisiana Department of Public
Safety and Corrections (DPSC) prison system. Under Louisiana state law,
Owens was eligible for a diminution of his sentence for good behavior,
performance of work, or self-improvement activities, otherwise known as “good
time” credit. La. Stat. Ann. § 571.3. To this effect, Owens signed a form,
effective April 27, 1988, indicating that he would elect to receive “double” good
time credit in lieu of incentive wages from the DPSC. In 1992, 1997, and 2003,
the DPSC offered Owens forms to sign in order to receive the double good time
credit option, giving thirty days of good time credit for every thirty days served.
Owens signed the election forms in 1997 and 2003. However, both forms had
an effective date of January 5, 1997, rather than his sentencing date of January
4, 1989. After Owens signed the last form in 2003, he verbally complained to
the prison staff at Winn Correctional Center, where he was incarcerated,
regarding the effective date listed on the election forms.        Based on legal
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research that Owens himself had done, Owens believed that he was entitled to
good time credit approval retroactively effective from his sentencing date of
January 4, 1989.
      After prison officials declined to address Owens’ complaint, he pursued
state administrative remedies in 2004 seeking good time credit from the DPSC.
The DPSC reviewed and ultimately denied Owens’ request for relief on August
2, 2004. Owens then petitioned for an emergency writ of habeas corpus in the
19th Judicial District Court of East Baton Rouge Parish. That court dismissed
Owens’ petition for relief. However, on appeal, the Louisiana First Circuit
Court of Appeals reversed and remanded the case to the DPSC to amend
Owens’ record to reflect appropriate credit for double good time earned from
Owens’ sentencing date of January 4, 1989. See Owens v. Stalder, 965 So. 2d
886, 890 (La. Ct. App. 2007). The court held that its decision was directly
controlled by a previous case, Cox v. Whitley, 612 So. 2d 158 (La. Ct. App. 1992).
Cox had held that inmates sentenced to DPSC custody on or after July 1, 1982,
who were otherwise eligible for diminution of sentence, would be eligible to
receive double good time credits under a Louisiana Act, Act 848. Id. at 159.
Furthermore, Cox added that the calculation of good time credits was to be
retroactive to the date of an inmate’s sentencing, regardless of any subsequent
statutes limiting double good time credits or of any approval forms an inmate
signed with respect to good time credits. Id. at 159–60. 1 Pursuant to the
judgment of the Louisiana First Circuit Court of Appeals, Owens was credited




      1 The state habeas court in Owens mentioned this particular point in response to the
DPSC’s argument that Owens’ rights to good time credit only ran once Owens first signed an
approval form in 1997. The state habeas court found that this argument had been similarly
made and rejected in Cox. Owens, 965 So. 2d at 889.
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with 1,256 days of good time credit, which resulted in his release from prison
on June 14, 2007, on supervised release. 2
       On May 30, 2008, Owens first filed this lawsuit in federal court against
Defendants, 3 alleging that Defendants had subjected Owens to false
imprisonment in violation of the Fourteenth Amendment by failing to calculate
his good time credits properly, thereby preventing his early release from
prison. Defendants filed a motion for summary judgment on June 28, 2014,
claiming qualified immunity for their failure to calculate Owens’ good time
credits among other defenses. Owens filed a cross-motion for partial summary
judgment on various grounds, arguing that Defendants were not entitled to
qualified immunity. The matter was referred to a magistrate judge who issued
a report and recommendation on February 2, 2015. The magistrate judge
recommended, among other things, that Defendants were not entitled to
qualified immunity based on Cox.               The magistrate judge concluded his
recommendation and report by informing the parties that they had 14 days
from its filing to object to the recommendations therein. The magistrate judge
warned that failure to object to the proposed factual findings and legal
conclusions in the report would subject them to plain error review on appeal if
the district court accepted the findings and conclusions. Defendants did not




       2   Owens’ supervised release was subsequently revoked on April 10, 2013, and he was
returned to the custody of the DPSC to serve the remainder of his original sentence. The
DPSC applied the 1,256 days credit to Owens’ remaining sentence. While Defendants sought
summary judgment on this fact and the magistrate judge suggested this created a standing
issue, the district court found that it had no effect on Owens’ standing. We add that this
point is not relevant to our limited review of Defendants’ qualified immunity on interlocutory
appeal.
         3 Owens’ first complaint named only Defendant–Appellant Richard L. Stalder, then

Secretary of the DPSC. Defendants–Appellants Henry Goines, Janice Elkins, and Rodney
Slay were added as part of Owens’ first amended complaint. Defendant–Appellant, James L.
Leblanc, the current Secretary of the DPSC, was substituted by the district court as to all
official capacity claims against the DPSC on June 20, 2014.
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object to the magistrate judge’s recommendation and report, while Owens
objected to parts of the recommendation and report.
      On March 10, 2015, the district court issued its judgment on the
magistrate judge’s report and recommendation. The district court agreed with
the findings of the magistrate judge on qualified immunity and denied
Defendants’ motion for summary judgment on this ground. The district court
then separately held that Owens had standing to pursue his false
imprisonment claim, which he had shown as a matter of law. Defendants
timely filed an interlocutory appeal from the district court’s judgment that
same day.
                        II. STANDARD OF REVIEW
      While we generally only have jurisdiction over appeals from final
judgments of district courts under the final judgment rule embodied in
28 U.S.C. § 1291, “a district court’s denial of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final decision’ within the
meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). As a result, a district court’s
“denial of a motion for summary judgment based upon qualified immunity [on
an issue of law] is a collateral order capable of immediate review.” Kinney v.
Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc). Our review of qualified
immunity judgments in this interlocutory appeal posture is limited, however.
“[W]e only have jurisdiction over ‘immunit[ies] from suit,’ not over ‘mere
defense[s] to liability.’” Juarez v. Aguilar, 666 F.3d 325, 333 (5th Cir. 2011)
(alterations in original) (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35,
43 (1995)). Therefore, our review of such interlocutory appeals is limited to
issues of qualified immunity and any other collateral orders, and we do not
reach any other issues, such as “liability [that] may be reviewed effectively on
appeal from final judgment.” Swint, 514 U.S. at 43.
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        As a result of this posture, “[t[he standard of review that we apply in an
interlocutory appeal asserting qualified immunity differs from the standard
employed in most appeals of summary judgment rulings.” Kinney, 367 F.3d at
347.     In particular, we “consider only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.” Id. at 348. “If the
district court denied summary judgment because material issues of fact exist,
this court lacks jurisdiction to review the [district] court’s determination that
genuine fact issues exist.” Hampton v. Oktibbeha Cty. Sheriff Dep’t, 480 F.3d
358, 363–64 (5th Cir. 2007).
        Generally, we review de novo “the district court’s conclusions concerning
the legal consequences . . . of the facts.” Kinney, 367 F.3d at 349. However,
where a magistrate judge issues a report and recommendation and a party fails
to “object to [that] Magistrate Judge’s Report and Recommendation, that party
may not attack the proposed factual findings or legal conclusions except upon
the grounds of plain error.” Starns v. Andrews, 524 F.3d 612, 617 (5th Cir.
2008). This is true even where a party’s failure to object can “presumably” be
traced to the fact that the report and recommendation ultimately favors that
party. See id. at 616–17. The same plain error standard applicable to criminal
cases described by the Supreme Court in United States v. Olano, 507 U.S. 725
(1993), applies in civil cases. Crawford v. Falcon Drilling Co., 131 F.3d 1120,
1123 (5th Cir. 1997). We may reverse on plain error review only “(1) if there
was error, (2) if that error was plain, (3) if the error affects substantial rights,
and (4) [if] allowing that error to stand seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Id. at 1124. Moreover, “[t]he
party charging error bears the burden of proof for establishing these various
criteria.” Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000).


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           III. DENIAL OF DEFENDANTS’ QUALIFIED IMMUNITY
       While Defendants assert two merits arguments in addition to arguing
that the district court erred when it denied them qualified immunity, we are
without jurisdiction to hear these arguments based on the interlocutory
posture of this case. See Swint, 514 U.S. at 43. 4 Instead, we may only review
the qualified immunity holding of the district court. Because the district court
adopted the magistrate judge’s report and recommendations on qualified
immunity and because Defendants failed to object to the magistrate judge’s
recommendation, we review the district court’s holding on qualified immunity
for plain error. See Starns, 524 F.3d at 617. We hold that the district court
did not plainly err when it denied Defendants’ motion for summary judgment
on qualified immunity.
       “To determine whether a defendant is entitled to qualified immunity,
this court engages in a two-pronged analysis, inquiring (1) whether the
plaintiff has alleged a violation of a constitutional right and, if so, (2) whether
the defendant’s behavior was objectively reasonable under clearly established
law at the time the conduct occurred.” Hampton, 480 F.3d at 363. Under this
inquiry, “[t]he plaintiff has the burden of demonstrating that the defendant
official is not entitled to qualified immunity.” Vincent v. City of Sulphur, 805
F.3d 543, 547 (5th Cir. 2015). To satisfy the first prong, a plaintiff must “allege
‘the deprivation of an actual constitutional [or statutory] right.’” Hampton,
480 F.3d at 363 (alterations in original) (quoting Felton v. Polles, 315 F.3d 470,
477 (5th Cir. 2002)). To satisfy the second prong, a plaintiff must show that
the “right is one that is ‘sufficiently clear that every reasonable official would


       4 In addition to arguing that the district court erred in denying qualified immunity,
Defendants argue on appeal that Owens failed to establish a claim of false imprisonment and
that any obligation to provide Owens with good time credits was extinguished once he was
re-incarcerated. As we mention above, we are without jurisdiction to consider these merits
arguments on an interlocutory appeal.
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have understood that what he is doing violates that right.’” Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012)). In this inquiry, “[t]he dispositive question is ‘whether the
violative nature of [the] particular conduct is clearly established.’” Id. (quoting
Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011)). While this does “not require a
case directly on point, . . . existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (quoting al–Kidd, 563 U.S. at 741);
see also id. (emphasizing that the clearly established law prong is not defined
“at a high level of generality”).
      The district court did not plainly err in denying qualified immunity
because it was not error to deny qualified immunity and, in any event, any
error was not plain. Owens satisfied the first prong of the qualified immunity
inquiry when he alleged that his Fourteenth Amendment rights were violated
by the denial of his early release because Defendants failed to calculate his
good time credits retroactively from the date of his sentencing. The Fourteenth
Amendment Due Process Clause is violated where a prisoner remains
incarcerated after the legal authority to hold him has expired. See Douthit v.
Jones, 619 F.2d 527, 532 (5th Cir. 1980). And a prisoner’s due process rights
extend to good time credits where the State has “provided a statutory right to
good time.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974); see id. (“[T]he
prisoner’s interest has real substance and is sufficiently embraced within
Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures
appropriate under the circumstances and required by the Due Process Clause
to insure that the state-created right is not arbitrarily abrogated.”). Moreover,
a Louisiana appellate court decision previously held that an inmate in Owens’
circumstances was wrongly deprived of double good time credits when the
DPSC failed to calculate good time credits retroactively from the date of
sentencing. See Cox, 612 So. 2d at 160.
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       Owens also satisfied the second prong of qualified immunity, as it was
clearly established by 1992 that good time credits should be calculated
retroactively to the date of sentencing. On December 23, 1992, the Louisiana
First Circuit Court of Appeals in Cox clearly held that inmates who were
sentenced after July 1, 1982—like Owens—were entitled to double good time
credit retroactive to the date of their sentencing. Cox, 612 So. 2d at 159–60.
As the state habeas court in Owens recognized, the Cox decision, by its own
terms, was sufficient to alert Defendants that Owens should have received
double good time credit retroactive from the date of sentencing. Owens, 965
So. 2d at 889. However, Defendants failed to apply the holding of Cox when
Owens was issued approval forms in 1997 and 2003 that did not apply good
time credits retroactive from the date of sentencing. Defendants’ conduct was
therefore objectively unreasonable under clearly established law.
       While Defendants argue that the law was not clearly established, they
fail to show that the district court erred on this point. Defendants first argue
that Cox did not address habitual offenders and that they believed Owens was
a habitual offender who was sentenced under a statute that prohibited
diminution of sentence altogether. This argument is unpersuasive. The Owens
decision held that Cox was directly applicable to Owens, Owens, 965 So. 2d
at 889–90, and Defendants’ previous conduct shows that they did not consider
Owens ineligible for diminution of sentence. 5
       Defendants next argue that the right was not clearly established based
on an unpublished case from our circuit, Nelson v. Stalder, No. 01-30323, 2002
WL 243382 (5th Cir. Jan. 25, 2002) (per curiam). In Nelson, this court held
that an inmate did not have a clearly established right to receive credit for time


       5While Defendants now argue that they previously believed Owens was ineligible for
diminution of his sentence, the record indicates otherwise as Defendants gave Owens election
forms to receive good time credit on three separate occasions in 1992, 1997, and 2003.
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served because the error did not exist until the inmate filed suit in state court
and the state court identified the error. Id. at *2. However, the status of the
law at the time of the alleged violation in Nelson was markedly different from
the present case. The plaintiff in Nelson filed suit under 42 U.S.C. § 1983,
alleging Fourteenth Amendment violations after a state court found that the
plaintiff was entitled to additional credit for time served and that prison
officials had incorrectly calculated the plaintiff’s term of incarceration. Id.
at *1. But the state court in Nelson reached its holding while noting that it
could find no cases directly on point to support its holding. By contrast, prior
to Owens’ state habeas action, Cox clearly established that Owens should have
received retroactive double good time credit, and Cox was issued before prison
officials incorrectly calculated Owens’ good time credit in 1997 and 2003.
Nelson is therefore inapposite. 6
                                  IV. CONCLUSION
       For the reasons herein, we AFFIRM the district court’s judgment
denying qualified immunity for Defendants and DISMISS as to any other
issues raised on appeal.




       6 Moreover, even assuming that Nelson is persuasive and that the district court erred
in not considering Nelson, Defendants fail to show that the district court’s error in denying
qualified immunity was “plain” for purposes of plain error review. In order for an error to be
plain, it “must be clear or obvious, rather than subject to reasonable dispute.” Puckett v.
United States, 556 U.S. 129, 135 (2009). But Nelson is a single, unpublished opinion, and we
have previously noted that a party cannot show plain error where there is a “lack of published
authority addressing [an] issue.” United States v. Romero–Molina, 600 F. App’x 286, 287 (5th
Cir. 2015) (per curiam) (unpublished).
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