*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40034

 

KEVIN UNDERWOOD,

Plaintiff-Appellant,

v.

ASA O. JEFFCOAT, Individually and in official capacity; 

 ROBERT HERRERA,Individually and in official capacity,

Defendants-Appellees.

_______________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:98-CV-600)

_______________________________

October 13, 1999

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Kevin Underwood (“Underwood”) appeals the district

court’s judgment dismissing with prejudice his 42 U.S.C. § 1983

claim as frivolous and for failure to state a claim upon which

relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(I)

and (ii). We affirm.

I. Factual and Procedural Background
2

Underwood is incarcerated at the Texas Department of

Criminal Justice (“TDCJ”) facility in Tennessee Colony, Texas. 

For medical reasons, Underwood cannot perform jobs that involve

repetitive use of his hands. Nevertheless, at some point,

presumably in the Fall of 1996, he was assigned to a work detail

involving the repetitive use of his hands. Underwood filed a

grievance complaining about the assignment. 

In a disciplinary hearing held on October 7, 1996, appellee

Asa O. Jeffcoat (“Jeffcoat”) found Underwood guilty, allegedly on

the basis of no evidence, of failing to appear for a work

assignment without a legitimate reason. As punishment, Underwood

was demoted in class status and subject to a 15 day cell

restriction.

The following day, in another disciplinary hearing, Jeffcoat

again found Underwood guilty of the same offense, allegedly on

the basis of the same dearth of evidence. This time, Underwood’s

class status sank to the lowest rank possible. He was also

sentenced to 30 days loss of privileges, which entailed 30 days

cell restriction (essentially solitary confinement), 30 days loss

of property and 30 days restrictions on use of the commissary.

That same day, October 8, 1996, Underwood filed his appeal. 

Appellee Assistant Warden Robert Herrera (“Herrera”) denied the 

appeal because he found that sufficient evidence supported the

conviction.

On December 4, 1996, Herrera issued a response to
3

Underwood’s grievance, filed after his assignment to the improper

job detail. In the response, Herrera conceded that the job

assignment had been improper and agreed to change it. Herrera

refused, however, to overturn the convictions for disciplinary

violations.

On or about July 28, 1998, and almost a month after

Underwood spoke personally with the Deputy Director of Support

Services and the Regional Director, the disciplinary convictions

were expunged from Underwood’s record. His good time credits

were fully restored, though his class status was only partially

reinstated.

On September 30, 1998, Underwood filed this action. He is

proceeding pro se and in forma pauperis (IFP). He claims that

Jeffcoat and Herrera violated his procedural due process rights

in violation of 42 U.S.C. § 1983; he also asserted state law

claims. He prayed for compensatory damages for “personal

humiliation and mental anguish,” as well as for a declaratory

judgment, punitive damages, equitable relief, attorneys’ fees and

costs and an injunction fully restoring his class status.

The district court adopted the magistrate’s initial report

and recommendation and dismissed Underwood’s state law claims as

frivolous and for failure to state a claim. The district court

denied Underwood’s motion to amend his complaint to remove the

state law claims, and Underwood proceeded on his federal law

claims.

The district court ultimately disposed of the case when it
4

adopted the magistrate’s second supplemental report and

recommendation and dismissed the federal law claims as frivolous

and for failure to state a claim. Following the magistrate’s

reasoning, the district court held that, under 42 U.S.C. §

1997e(e), Underwood could not bring a due process claim and

recover for mental anguish or emotional distress without an

allegation of prior physical injury.

The district court further denied Underwood’s request to

alter the judgment and to permit him to amend his complaint. 

Underwood sought to remove allegations of being deprived of

eligibility for mandatory supervision, and to change his claim

for compensatory damages for personal injury to one of

compensatory damages for punishment wrongfully imposed.

Underwood timely filed his appeal.

II. Standard of Review

If an IFP claim lacks an arguable basis in law or fact, the

district court may dismiss it as frivolous. 28 U.S.C. §

1915(e)(2)(B)(I); see also Denton v. Hernandez, 504 U.S. 25

(1992); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). 

“A complaint lacks an arguable basis in law or fact if it is

‘based on an indisputably meritless legal theory,’ such as if the

complaint alleges the violation of a legal interest which clearly

does not exist.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th

Cir. 1997) (quoting Neitzke v. Williams, 490 U.S. 319, 327

(1989)). 

We review a district court’s decision to dismiss for failure
5

to state a claim pursuant to § 1915(e)(2)(B)(ii) de novo, as we

would any dismissal under Federal Rule of Civil Procedure

12(b)(6). See Ruiz v. United States, 160 F.3d 273, 274 (5th Cir.

1998). Of course, we must assume the truth of all of the

plaintiff’s factual allegations, and we may uphold the lower

court “only if it appears that no relief could be granted under

any set of facts that could be proven consistent with the

allegations.” Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.

1999) (quoting McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d

158, 160 (5th Cir. 1995)). 

III. Procedural Due Process Claim

As a preliminary procedural matter, we must determine

whether a § 1983 suit is the proper vehicle for Underwood’s

claim. Pursuant to Heck v. Humphrey, 512 U.S. 477, 487 (1994), a

prisoner cannot bring an action under § 1983 if “a judgment in

[his] favor . . . would necessarily imply the invalidity of his

conviction or sentence,” unless the conviction or sentence had

been overturned on appeal or otherwise invalidated. In Edwards

v. Balisok, 520 U.S. 641, 648 (1997), the Court extended the Heck

rule to a prisoner attacking a disciplinary proceeding that

resulted in the loss of good time credits; see also Clark v.

Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (“A prisoner . . .

cannot bring a § 1983 action seeking damages . . . based on a

‘conviction’ until that ‘conviction’ has been . . . expunged . .

. if a favorable judgment would ‘necessarily imply’ the

invalidity of the prisoner’s ‘conviction[.]’”).
6

Here, Underwood’s two convictions for failing to appear for

work without a legitimate reason have both been expunged. 

Therefore, he need not exhaust his state remedies and bring a

habeas action; a § 1983 suit is the proper vehicle for his

complaint.

Having surmounted the procedural bar to his due process

claim, however, Underwood stumbles across the substantive

obstacle: he has no protected liberty or property interest at

stake. It is axiomatic that the protections of the Due Process

clause do not attach unless state procedures threaten a protected

liberty or property interest. See Johnson v. Rodriguez, 110 F.3d

299, 308 (5th Cir. 1997) (“The protections of the Due Process

Clause are only invoked when State procedures which may produce

erroneous or unreliable results imperil a protected liberty or

property interest.”). And pursuant to Sandin v. Conner, 515 U.S.

472, 484 (1995), state-created liberty interests protected by the

Due Process clause are those which “impose[] atypical and

significant hardship[s] on the inmate[s] in relation to the

ordinary incidents of prison life.” See also Orellana v. Kyle,

65 F.3d 29, 32 (5th Cir. 1995) (“[W]hile, as Sandin noted,

prisoners retain constitutional remedies under the First and

Eighth Amendments and the Equal Protection Clause of the

Fourteenth Amendment, the ambit of their potential Fourteenth

Amendment due process liberty claims has been dramatically

narrowed.” (citation omitted)). 

Disciplinary segregation, the freedom from which is the
7

liberty interest Underwood identifies, is not so atypical or

significant a hardship that a prisoner’s freedom therefrom is a

protected liberty interest. See Sandin, 515 U.S. at 486 (“We

hold that Conner’s discipline in segregated confinement did not

present the type of atypical, significant deprivation in which a

State might conceivably create a liberty interest.”); Orellana,

65 F.3d at 32 (“Sandin itself involved disciplinary segregation,

a severe form of prison discipline, yet held that such

confinement, ‘though concededly punitive, does not present a

dramatic departure from the basic conditions of Conner’s

indeterminate sentence.’” (citing Sandin, 515 U.S. at 485)). 

Since Underwood had no protected liberty interest in being

free from disciplinary segregation, he cannot state a claim for a

deprivation of procedural due process in the disciplinary hearing

that resulted in his wrongful conviction for failing to appear

for work without a legitimate reason. Underwood’s due process

claim has no basis in fact or law, as it relies on an

indisputably meritless legal theory. The district court did not

err, therefore, in dismissing Underwood’s action as frivolous and

for failure to state a claim. For this reason we affirm, and we

therefore need not reach the question of the proper construction

of § 1997e.

Because Underwood did not identify a liberty interest

cognizable under the Due Process Clause, the district court

likewise did not err in denying Underwood’s requests to amend his

complaint. Underwood’s suggested amendments would have been
8

futile. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.

1998) (recognizing that the futility of an amendment is a

substantial reason to deny a request to amend).

Finally, Underwood’s contentions regarding his state law

claims are not properly before us. Underwood has not briefed

this issue, and he has therefore abandoned any claims he had with

respect to these issues. See Yohey v. Collins, 985 F.2d 222, 224

(5th Cir. 1993); Fed. R. App. Proc. 28(a)(9). Though Underwood

is proceeding pro se, we can only liberally construe the

arguments he makes; we cannot construct his arguments from whole

cloth.

IV. Conclusion

We AFFIRM the district court’s holding on the ground that

Underwood failed to state a claim upon which relief could be

granted.

AFFIRMED.