IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-9068

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CHARLES ANTHONY MITCHELL,

Plaintiff-Appellant,

versus

SHERIFF DEPARTMENT,

LUBBOCK COUNTY, TEXAS,

Defendant-Appellee.

No. 92-9069

CHARLES ANTHONY MITCHELL,

Plaintiff-Appellant,

versus

SHERIFF DEPARTMENT,

LUBBOCK COUNTY, TEXAS, and

SGT. KORN,

Defendants-Appellees.

_________________________ _________________________________________

Appeals from the United States District Court for the

Northern District of Texas

__________________________________________________________________ (June 28, 1993)

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Charles Anthony Mitchell seeks leave to appeal in forma

pauperis ("IFP") the district court's dismissal of his complaints-2-

under 42 U.S.C. § 1983 as frivolous under 28 U.S.C. § 1915(d). In

both actions, Mitchell contends that prison officials violated his

constitutional right to due process by placing him in lockdown

without a hearing. We hereby consolidate Mitchell's appeals

because they raise identical issues. For the reasons stated below,

we grant Mitchell's motions to appeal IFP, vacate the judgments of

the district court, and remand Mitchell's cases for f urther

proceedings consistent with this opinion.

I

Mitchell is a prisoner in the Lubbock County, Texas jail. He

alleges that on September 20, 1992, two guards ordered him to close

his cell door. Mitchell admits that he refused to obey the guards'

orders ; to be sure, he told the guards that it was their job to

close the door. The guards charged Mitchell with disobeying orders

and with engaging in disruptive conduct. The guards then placed

Mitchell in lockdown. Two days later, prison officials notified

Mitchell that they were charging him with violating jail rules and

that the grievance committee would hold a hearing on the charges on

September 27. The hearing was delayed and Mitchell remained in

lockdown until October 8, 1992. The grievance committee held its

hearing on October 18, and found that Mitchell had refused to obey

direct orders and had engaged in disruptive conduct. Consequently,

the grievance committee punished Mitchell with fourteen days of

full restriction. Mitchell also alleges that prison officials kept

him on full restriction for three extra days.1 As we have observed, the district court granted

"provisional" IFP, only to revoke IFP status upon finding the

plaintiff's claims frivolous. We take this opportunity to

suggest the preferred procedure. Initially, if the plaintiff's

financial status warrants it, IFP is granted and the case

docketed. Watson v. Ault , 525 F.2d 886, 891 (5th Cir. 1976).

This determination is based solely on the plaintiff's economic

status. Cay v. Estelle , 789 F.2d 318, 322 (5th Cir. 1986). If

the district court later finds that the complaint is frivolous,

the district court may dismiss the complaint under 28 U.S.C. §

1915(d). With respect to dismissals, although the Federal Rules

of Civil Procedure do not require it, a statement of its reasons

is highly beneficial for purposes of appellate review and can

often prevent a remand. See Moore v. Mabus , 976 F.2d 268, 270

(5th Cir. 1992); Jot-Em-Down Stores (JEDS) Inc. v. Cotter & Co.

, 651 F.2d 245, 247 (5th Cir. 1981).

-3- II

Mitch ell has filed two complaints under 42 U.S.C. § 1983

alleging that the Lubbock County jail officials violated his civil

rights by placing him in lockdown without proper notice and a

hearing. Because he could not pay the court fees, Mitchell moved

the court to gran t him IFP status in both cases. The district

court provisionally granted Mitchell leave to proceed IFP in both

cases, but it withheld service of process pending its review of his

complaints pursuant to 28 U.S.C. § 1915(d). Later the court

determined--on the basis of the pleadings alone--that Mitchel l's

complaints we re frivolous. Consequently, the district court

vacat ed Mitchell's provisional IFP status, denied his motions to

proceed IFP, and dismissed his complaints without prejudice. 1

Mitchell filed timely notices of appeal with motions to

proceed IFP on appeal. Because the district court did not rule on

his motions to appeal IFP, Mitchell now seeks leave to appeal IFP.-4-

Mitchell has submitted an affidavit alleging that he does not have

the funds to prosecute this appeal. Once the appellant's financial

condition is e stablished, our inquiry is limited to whether the

appeal raises any non-frivolous issues. Howard v. King , 707 F.2d

215, 220 (5th Cir. 1983). Because Mitchell's appeal is not

frivolous, we grant his motion to proceed IFP.

III

Our remand is prompted because, first, it is unclear from

Mitchell's pleadings whether the lockdown was for punitive reasons

and whether the lockdown entailed solitary confinement. We

recently held that the "use of punitive isolation without affording

due process is unacceptable and violates the 14th Amendment."

Pembroke v. Wood County, Texas

, 981 F.2d 225, 229 (5th Cir. 1993).

In Pembroke

, Wood C ounty jail officials placed Pembroke in

isolation for five days for the purpose of punishing him without

affording him any due process protections. Here, Mitchell alleges

that he was placed in lockdown from September 20 until October 8.

Under Pembroke , if Mitchell was placed or maintained in isolation

for punitive reasons, then the prison officials may we ll have

violated his right to due process by failing to give an appropriate

notice and hearing.

We do not hold, however, that the Due Process Clause grants

Mitchell a liberty right to be confined within the general prison

population that the prison officials can take away only if they

follow procedures that satisfy the Due Process Clause. On the-5-

contrary, the Supreme Court has r epeatedly found that prison

officials have broad administrative and discretionary authority

o ver the institutions they manage and that lawfully incarcerated

persons retain only a narrow range of protected liberty interests.

Prison officials need broad administrative authority because

running a prison is an "extraordinarily difficult undertaking."

Wolff v. McDonnell

, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979 (1974).

Thus, the Supreme Court has concluded that "to hold

. . . that any

substantial deprivation imposed by prison authorities triggers the

procedural protections of the Due Process Clause would subject to

judicial review a wide spectrum of discretionary actions that

traditionally have been t h e business of prison administrators

rather than the federal courts." M eachumv. Fana , 427 U.S. 215,

225, 96 S.Ct. 2532, 2538 (1976).

The Supreme Court has "consistently refused to recognize more

than the most basic liberty interests in prisoners." H ewitt v.

Helms

, 459 U.S. 460, 466, 103 S.Ct. 864, 869 (1983). It is beyond

question that "[l]awful incar ceration brings about the necessary

withdrawal or limitation of many privileges and rights." P rice v.

Johnson

, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060 (1948). Thus, the

Supreme C ourt has long recognized that prison officials have the

authority to transfer an inmate to more restr ictive quarters for

non-punitive reas ons. H ewitt

, 103 S.Ct. at 869 ("administrative

segregation is the sort of confin ement that inmates should

reasonabl y anticipate receiving at some point in their-6-

incarceration"). The case before us differs from H ewitt only in

that Mitchell raises the non-frivolous c ontention--and from the

record before us, we cannot tell whether there is a basis for the

contention--that the prison officials placed Mitchell in isolation

for punitive reasons and not that he was se gregated for

administrative reasons.

Finally, we should note that in addition to the Due Process

Clause itself, liberty interests that are recognizabl e under the

Fourteenth Amendment may also arise from the laws of the states.

Hewitt , 103 S.Ct. at 869. State laws and regulations can create

recognizable liberty interests by placing substantive limitations

on th e discretion of a prison official. O lim v. Wakinekona

, 461

U.S. 238, 249, 103 S.Ct. 1741, 1747 (1983).

We thus remand this case also because Mitchell conte nds--

aside from allege d rights emanating solely from the Due Process

Clause--that regulations of the Lubbock jail created protected

l iberty interests. To create a recognizable liberty interest,

however, a state must do more than just create strict procedures

that decision-makers must follow; the state must also provide

"particularized standards or criteria" to guide the decision-maker.

Id.

On remand, further proceedings will serve to bring Mitchell's

factual and legal contentions into focus, including whether the

Lubbock jail regulations create any liberty interests relative to

Mitchell's claim. Should Mitchell wish to assert the double-7-

jeopardy contention he raises for the first time in his appellate

pleadings, he should amend his complaint to raise that contention

in the district court.

IV

For all of the foregoing reasons, the decision of the district

court is

V A C A T E D and R E M A N D E D.