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

                                                                            FILED
                                                                        November 19, 2008
                                     No. 07-40831
                                                                      Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JOE RICHARD RANDLE, JR

                                                  Plaintiff-Appellant
v.

LIEUTENANT D WOODS

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:05-CV-454



Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Joe Richard Randle, Jr., Texas Prisoner #644080, appeals the district
court’s dismissal of his 42 U.S.C. §1983 action against Lieutenant D. Woods
(“Woods”) and various other parties. Randle accuses Woods and several other
prison officials of harassment, conspiracy, violations of due process, deliberate
indifference and retaliation in connection with his use of the prison grievance
system; he seeks declaratory and injunctive relief as well as monetary damages.

       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40831

The magistrate judge conducted an evidentiary hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir.1985), and issued a Report and Recommendation
(“R&R”) recommending that all of Randle’s claims except for the retaliation
claim against Woods be dismissed as frivolous. Woods moved for summary
judgment, and the magistrate judge issued a second R&R recommending that
the claim against Woods be dismissed as Randle had failed to exhaust his
administrative remedies. The district court dismissed Randle’s claims against
all but Woods as frivolous, and dismissed the remaining claim against Woods for
failure to exhaust administrative remedies.
      The district court properly dismissed Randle’s claim against Woods, as
Randle failed to properly exhaust his administrative remedies. The magistrate
judge determined that Randle had not presented his complaint to prison officials
in compliance with the two-step process established by the Texas Department
of Criminal Justice (“TDCJ”). Each issue in the complaint must be presented in
a step one grievance, and may subsequently be appealed in a step two grievance
procedure.   Offenders are not allowed to present new issues in step two.
Randle’s complaint against Woods is raised for the first time in Randle’s step two
grievance, in violation of TDCJ requirements that only one issue per grievance
be presented and that each issue have been filed at step one. The Supreme
Court held in Woodford v. Ngo, 548 U.S. 81 (2006), that the exhaustion remedy
contained in the Prison Reform Litigation Act (“PLRA”) mandates “proper
exhaustion,” which means compliance with prison procedural rules and
deadlines. Id. at 92-93. A grievance must be pursued through both steps of the
TDCJ system before it can be considered exhausted. See Johnson v. Johnson,
385 F.3d 503, 515 (5th Cir. 2004). It is clear that Randle did not raise his claim


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against Woods until step two of the process, thus failing to meet the exhaustion
requirement.
      The district court also properly dismissed Randle’s other claims of
retaliation and ancillary claims of harassment, conspiracy and deliberate
indifference. In order to state a valid claim for retaliation under §1983, a
prisoner must allege the following: (1) a specific constitutional right; (2) the
defendant’s intent to retaliate against the prisoner for the exercise of that right;
(3) a retaliatory adverse act; and (4) causation. Jones v. Greininger, 188 F.3d
322, 324-325 (5th Cir. 1999).        If the inmate cannot point to a specific
constitutional right that has been violated, the claim will fail. Id. at 325 (citing
Tighe v. Wall, 100 F.3d 41, 43 (5th Cir. 1996)). Mere conclusory statements that
retaliation occurred are not sufficient; “The inmate must produce direct evidence
of motivation or, the more probable scenario, ‘allege a chronology of events from
which retaliation may plausibly be inferred.’ ” Id. (citing Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir.1995)).
      Randle cites four specific instances of alleged retaliation: a disciplinary
case that was brought out-of-time, a disciplinary case regarding the covering of
a light in his cell, a disciplinary case regarding his refusal to return to quarters,
and a unit classification committee hearing that he was not allowed to attend
and in which his line class status was changed. The first claim fails as the
magistrate judge determined that the first disciplinary case was not brought out-
of-time and that there was a valid basis for the issuance of the disciplinary case.
Randle’s second claim fails as the Randle concedes that the disciplinary case in
question was dismissed, thus removing any injury for which Randle might have
a claim. Randle’s third claim fails as he does not deny that he refused to return


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to his quarters when instructed to do so, and thus cannot show that, but for the
alleged retaliatory motive, he would not have received the case. Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Randle’s final claim also fails as
a change in line class status does not implicate a cognizable constitutional
liberty interest. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
      To the extent that Randle raises a due process challenge to the hearing he
was not allowed to attend, however, the district court erroneously held that he
could not proceed under 42 U.S.C. §1983. The magistrate judge’s report states
that Randle received a disciplinary case on September 17, 2005 for failure to
obey an order and refusal to return to his cell. The magistrate’s report indicates
that Randle made some statements explaining his behavior; however, the report
then states that “the hearing record reflects that Randle was excluded from the
hearing.” As punishment for that case, Randle received 45 days of cell and
commissary restrictions and the loss of 20 days of good time.
      The district court dismissed Randle’s claim, holding under Edwards v.
Balisok, 520 U.S. 641 (1997), and Clarke v. Stalder, 154 F.3d 186 (5th Cir. 1998),
that a prisoner may not pursue monetary damages for disciplinary cases absent
a showing that the result has been reversed and expunged. However, the
district court did not properly apply Edwards in this case. In Heck v. Humphrey,
512 U.S. 477, 486-87 (1994), the Supreme 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,” id. at
481-82, unless the prisoner can prove that “the conviction or sentence has
already been invalidated,” id. at 487. In Edwards, the Court limited the ability
of inmates to recover §1983 damages for violations of procedural due process


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during disciplinary hearings, where a challenge to those procedures necessarily
implies the invalidity of the judgment. Edwards, 520 U.S. at 645-46. 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. Id. In Wolff v. McDonnell,
418 U.S. 539 (1974), the Supreme Court recognized an inmate’s right to seek
damages for violations of procedural due process during prison disciplinary
hearings, including the right to receive written statement of evidence relied on
in those hearings. Id. at 554-55, 563-64. This Court has also held that a claim
for damages based on the failure to receive a written statement of evidence
relied on in a disciplinary hearing, is cognizable under §1983. Mahogany v.
Stalder, 242 Fed. Appx. 261, 263 (5th Cir. 2007).1
      Randle alleges four instances of due process violations resulting from his
exclusion from various disciplinary hearings. The first three are meritless, as
the magistrate judge’s report indicates that Randle was excluded because of his
disruptive behavior during the first hearing, was present at the second hearing,
and did not show to the third hearing. However, the violation of due process
alleged by Randle with respect to the September 27 hearing may create a valid
§1983 claim. Randle argues, and the magistrate judge appears to affirm in his
report, that he was excluded from the hearing of September 27. Exclusion from
a disciplinary hearing without cause likely raises a valid due process claim, as
it is even more harmful to the inmate’s ability to participate than the failure to
provide a written statement of evidence. However, it is unclear from the


      1
          Mahogany v. Stalder is an unpublished case and not precedential, however, its
application of Wolff is instructive here.

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magistrate judge’s report why or at what point during the hearing the exclusion
on September 27 occurred. In alleging his exclusion from the hearing, Randle
has stated a cognizable claim under §1983, and the district court’s dismissal of
the claim is improper. We thus AFFIRM the dismissal of Randle’s retaliation
claims, REVERSE dismissal of his due process claim with respect to the hearing
of September 27, and REMAND for further consideration.




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