* District Judge for the Southern District of Texas, sitting

by designation.

** Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20926

_____________________

TERRENCE R. SPELLMON,

Plaintiff - Appellant

v.

J. KEITH PRICE, ET AL.,

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-93-3712)

_________________________________________________________________

October 10, 1996

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN,*

District Judge.

PER CURIAM:**

Texas prisoner Terrence Spellmon, proceeding pro se and in
2

forma pauperis, filed this action under 42 U.S.C. § 1983 alleging

that various prison personnel violated his constitutional rights. 

The district court dismissed his claims as frivolous pursuant to

28 U.S.C. § 1915(d), and Spellmon appeals. We affirm.

I. BACKGROUND

A. Facts

Spellmon’s constitutional claims are based on allegations

concerning several separate disciplinary incidents, summarized as

follows. On February 9, 1993, Lieutenant T.C. Carroll and

another official searched Spellmon’s storage box in an

unsuccessful hunt for marijuana and cash. Later that day Carroll

informed Spellmon that he had found a contraband “stinger” (an

electrical heating device) in Spellmon’s cell; Spellmon denied

the charge. Carroll nevertheless filed a disciplinary report

charging Spellmon with possession of contraband. Spellmon was

consequently disciplined with 30 days recreation restriction, 30

days commissary restriction, and 30 days day room restriction.

Three days later, while Spellmon was in the law library,

Carroll wrongly accused him of taking a sheet of paper from

another inmate and told him to leave the library. When Spellmon

requested a grievance form, Carroll responded that he would file

a report against Spellmon. On February 19, 1993, while Spellmon

was being held in pretrial detention, Carroll refused to pick up

his request for a law book, causing a two-day delay in Spellmon’s
3

access to the law library.

On January 27, 1993, Spellmon was proceeding from his

cellblock to the law library when Officer S. Willmore, apparently

in response to a disturbance in the hall, grabbed him and pushed

him back to his assigned quarters. When Spellmon stated that he

was en route to the law library, Willmore replied, “You’re not

going no where, and if you keep fuckin [sic] up I’m going to

break you up.” On or about February 10, 1993, when another

inmate told Willmore that he did not know where Spellmon was and

asked whether Spellmon was in trouble, Willmore replied, “He

filed a grievance on me.”

On February 18, 1993, Willmore verbally approved Spellmon’s

request to pick up some legal documents from an inmate on “Kline,” but as soon as Spellmon entered K-line Willmore told him

he was “out of place.” Spellmon was handcuffed and taken to

Lieutenant Dugger, who said that a disciplinary report would be

filed against him. Spellmon was then placed in pre-hearing

detention. Four days later, Spellmon learned that he was being

held in pre-hearing detention because Dugger had written in a

logbook, falsely, that Spellmon had “threatened a staff member.” 

The disciplinary report filed by Willmore had charged Spellmon

only with being out of place, lying to an officer, and refusing

to obey orders. Spellmon pleaded guilty to the out of place

charge. On February 23, 1993, Spellmon went before Captain

Ellinburgh for his hearing on Willmore’s disciplinary report. 
1 Spellmon alleged that Captain Brock, who was the brother of

a defendant named in one of Spellmon’s many lawsuits, told Spellmon

before the hearing started that Spellmon was “going to be crying”

afterwards and that he, Brock, was “going to take everything

[Spellmon] got.” 

4

Ellinburgh told Spellmon that he was placed in pre-hearing

detention for threatening a staff member, a charge for which

Plaintiff had not received notice. Ellinburgh disciplined

Spellmon with 30 days commissary restriction, a reprimand, and 15

days of solitary confinement. After the hearing concluded,

Ellinburgh stated to Spellmon that the punishment of solitary

confinement was for threatening a staff member.

On March 25, 1993, Spellmon received from Officer Green a

disciplinary report filed by Officer Pierce charging Spellmon

with masturbating in public. Plaintiff stated to Green that he

had been in the law library during the time in question. Green

replied, apparently referring to Pierce, “I don’t know what’s

wrong with that wom[a]n.” Spellmon attended a hearing on the

Pierce disciplinary report on April 6, 1993. Captain Brock was

presiding.1 Although Spellmon overheard Pierce state to another

officer before the hearing that Spellmon was “not the one he’s

too dark,” Pierce nonetheless testified that Spellmon was the

offender. Green also testified that he saw Spellmon

masturbating, in apparent contradiction with his earlier remark

to Spellmon. Spellmon called as a witness Officer Meese, who

testified that Spellmon had been in the library for almost four
5

hours at the time of the alleged offense. Brock found Spellmon

guilty and imposed 30 days commissary restriction, 30 days

recreation restriction, a reduction in unit classification, and

loss of 535 days of good time. Spellmon appealed Brock’s

decision.

On April 9, 1993, Spellmon attended a unit classification

hearing before Warden J. Keith Price for a review of his custody

status. Price told him his previous classification and good time

would be restored if Meese supported his story in the Pierce

matter. On April 23, 1993, Price presided over another hearing

at which Spellmon learned that Major J. Thomas had called him a

“pain in the ass” and wanted him placed in close custody “where

he belongs.” On May 1, 1993, Meese told Spellmon that no one had

spoken to her about the Pierce matter. On May 3, 1993, Spellmon

attended another unit classification hearing, at which Associate

Warden Crow told him that his appeal of the Pierce disciplinary

report had been denied and that he was being placed in the medium

custody section of the prison, which was in lockdown status at

the time. Spellmon remained in lockdown from May 3, 1993, until

June 18, 1993, without ever having received notice that he had

engaged in conduct which warranted such status. On May 20, 1993,

Spellmon received notice that the Pierce disciplinary report had

been expunged from his record, but Spellmon remained in lockdown

nevertheless. On May 25, 1993, Spellmon was again served with

the Pierce disciplinary report. On June 11, 1993, Spellmon was
2 See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

6

retried on the Pierce charges. On June 17, 1993, Ellinburgh

dismissed the case.

B. Claims Asserted

Spellmon filed this lawsuit on November 23, 1993, against

Price, Crow, Thomas, Brock, Ellinburgh, Carroll, Dugger, Pierce,

Willmore, and Jones, his case manager, alleging that defendants’

actions violated his rights under the First, Fourth, Fifth,

Eighth, and Fourteenth Amendments. Spellmon claims, inter alia,

that his constitutional rights were violated by (1) the filing of

false disciplinary reports initiated in retaliation for his

active use of the courts; (2) his placement in lockdown without

notice and a hearing; (3) his continued confinement in lockdown

after the relevant disciplinary charges were dismissed; and (4)

his punishment for charges not contained in any disciplinary

report.

C. District Court Proceedings

The magistrate judge ordered Spellmon to answer

interrogatories concerning the factual basis of his complaint. 

The district court later held a Spears hearing2 to further

develop the factual predicate of Spellmon’s claims. The district

court concluded that Spellmon’s claims were legally frivolous

under 28 U.S.C. § 1915(d) and dismissed the complaint with

prejudice. Among the findings of the district court were (1) all
3 After careful review of Spellmon’s brief and the cases cited

therein, we find that Spellmon’s argument concerning the filing of

false disciplinary charges is based solely on procedural due

process and not on any deprivation akin to malicious prosecution.

Even if Spellmon were heard to assert such a claim, the Supreme

Court held in Albright v. Oliver, 510 U.S. 266 (1994), that

malicious prosecution is not actionable as a deprivation of

substantive due process under the Fourteenth Amendment.

4 Spellmon appears to have abandoned all other claims

presented below. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1995) (claims not briefed on appeal are deemed abandoned).

7

disciplinary proceedings comported with procedural due process;

(2) the conditions of Spellmon’s confinement in lockdown did not

violate Eighth Amendment standards; (3) the placement of Spellmon

in lockdown was for non-punitive reasons and was within the terms

of confinement ordinarily contemplated by a prison sentence; and

(4) Spellmon’s allegations of retaliation were conclusory,

subjective, and speculative.

D. Arguments on Appeal

Spellmon argues on appeal that his claims were improperly

dismissed as frivolous because (1) the filing of false

disciplinary reports violated his rights under the Fifth and

Fourteenth Amendments;3 (2) his confinement in lockdown violated

his rights under the Fifth, Eighth, and Fourteenth Amendments;

(3) his punishment for a charge not contained in a disciplinary

report violated his rights under the Fifth and Fourteenth

Amendments; and (4) his allegations state a valid claim for

retaliation.4
8

II. ANALYSIS

Section 1915(d) authorizes a district court to dismiss an in

forma pauperis complaint “if the allegation of poverty is untrue,

or if satisfied that the action is frivolous or malicious.” 28

U.S.C. § 1915(d)). A complaint is frivolous if “it lacks an

arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in

law if it is “based on an indisputably meritless legal theory,”

such as where defendants are clearly immune from suit or where

the complaint alleges infringement of a legal interest which

clearly does not exist. Id. at 327. We review a § 1915(d)

dismissal for abuse of discretion. Denton v. Hernandez, 504 U.S.

25, 33 (1992).

Spellmon argues that the false accusations of defendants

Carroll and Pierce, knowingly made, sufficiently tainted the

disciplinary proceedings associated therewith as to deprive him

of due process under the Fifth and Fourteenth Amendments. 

Spellmon does not challenge the district court’s finding that the

disciplinary proceedings otherwise met constitutional

requirements for due process. Because the Fifth Amendment

applies only to the actions of the federal government, Morin v.

Caire, 77 F.3d 116, 120 (5th Cir. 1996), we limit our analysis to

the due process protections of the Fourteenth Amendment.
9

Spellmon relies on United States v. Wallace, 673 F.Supp. 205

(S.D. Tex. 1987), and Morrison v. Lefevre, 592 F.Supp. 1052

(S.D.N.Y. 1984), for the proposition that a prison disciplinary

proceeding does not comport with due process where false

inculpatory evidence is knowingly introduced through state

action. Both Wallace and Morrison apply to the context of prison

disciplinary proceedings the principle articulated in Napue v.

Illinois, 360 U.S. 264 (1959), that a state may not knowingly use

false evidence to obtain a conviction. This circuit has

previously held that a prisoner’s claim that he was charged in a

disciplinary report with acts he did not commit did not state a

deprivation of due process where the disciplinary proceeding was

otherwise fair and adequate. Collins v. King, 743 F.2d 248, 253-

54 (5th Cir. 1984). The claims in this case do not present any

meaningful distinction between the filing of false charges and

the presentation of false testimony; the same officer who filed

the disciplinary report was also the individual who allegedly

testified falsely to the very facts that formed the basis of the

report. Accordingly, Spellmon’s claim that he was deprived of

procedural due process cannot be sustained under prevailing law.

Spellmon’s due process claim is deficient also in a more

fundamental respect; namely, the allegations of his complaint do

not implicate any constitutionally cognizable liberty interest

sufficient to trigger due process protection. In Sandin v.

Conner, 515 U.S. ___, 115 S.Ct. 2293 (1995), the Supreme Court
10

reexamined the analytical framework it created in Hewitt v.

Helms, 459 U.S. 460 (1983), wherein it held that a state may

create protected liberty interests through the use of mandatory

language in statutes and regulations. In Sandin, in which a

state prisoner challenged his punitive segregation on due process

grounds, the Court held that, although states may create liberty

interests protected by the due process clause, those interests

are

generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected

manner as to give rise to protection by the Due Process

Clause of its own force, nonetheless imposes atypical

and significant hardship on the inmate in relation to

the ordinary incidents of prison life. 

Sandin, 115 S.Ct. at 2300 (citations omitted). The Court held

that the prisoner’s disciplinary confinement, though punitive,

was not such a “dramatic departure” from the basic conditions of

his sentence as to constitute a protected liberty interest that

would entitle him to the procedural protections set forth in

Wolff v. McDonnell, 418 U.S. 539 (1974). Sandin, 115 S.Ct. at

2300. Sandin has considerably narrowed the scope of potential

due process liberty claims that can be brought by prisoners under

the Fourteenth Amendment. See Orellana v. Kyle, 65 F.3d 29, 32

(5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 736

(1996).

The discipline imposed on Spellmon for possession of

contraband and for masturbating in public consisted of
5 Spellmon’s loss of 535 days of good time, imposed for the

masturbating in public charge, was restored when this charge was

dismissed. The restoration of Spellmon’s good time precludes any

claim that he was deprived of a liberty interest in the duration of

his sentence.

11

restrictions on recreation, commissary and day room privileges,

and a change in custodial status which resulted in his being

confined for approximately six weeks in a section of the prison

then on lockdown.5 Under the standard set forth in Sandin, these

changes in Spellmon’s conditions of confinement do not implicate

a liberty interest sufficient to invoke due process protections. 

See Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied sub

nom. Luken v. Johnson, ___ U.S. ___, 116 S.Ct. 1690 (1996).

Spellmon cites Wallace for the proposition that a prisoner

has a “liberty interest” in not having false statements, reports,

and evidence presented at a disciplinary hearing. Spellmon’s

apparent reliance on Wallace to establish the predicate liberty

interest is flawed in at least two respects. First, the knowing

presentation of false evidence at an official proceeding does not

itself constitute a deprivation of liberty, but rather implicates

procedural due process. See Collins, 743 F.2d at 250 (prisoner’s

claim that he suffered deprivation of liberty because of untrue

and excessive disciplinary charges is complaint about want of

procedural due process). The position that such use of false

evidence is simultaneously a substantive deprivation of liberty

and a deprivation of due process is untenable. Second, Wallace
6 Spellmon nominally asserts that his confinement in lockdown,

absent any behavior on his part warranting such close custody, also

violates his rights under the Eighth Amendment. The body of

Spellmon’s argument, however, properly focuses on due process

concerns, as his contention is properly analyzed under the

Fourteenth Amendment. Even if this claim were cognizable under

the Eighth Amendment, Spellmon’s confinement in lockdown was not so

lacking in penological interest or otherwise in contravention of

contemporary standards of decency as to rise to the level of a

constitutional violation. See Rhodes v. Chapman, 452 U.S. 337,

346-47 (1981).

12

was a criminal case in which defendants were charged pursuant to

18 U.S.C. § 241 with conspiracy to deprive a prisoner of his

constitutional rights, not a prisoner action under 42 U.S.C. §

1983. As the court pointed out in Wallace, section 241 does not

require proof of an actual deprivation of rights that would

afford a private cause of action under section 1983. Wallace,

673 F.Supp. at 206.

Spellmon also contends that his Fourteenth Amendment rights

were violated when he was deprived of notice and a hearing before

being placed in lockdown; when he was not removed from lockdown

after the disciplinary case was dismissed; when he was subjected

to a lockdown instituted in response to the actions of other

inmates;6 and when he was disciplined with solitary confinement

for “threatening a staff member” despite the fact that this

charge was not contained in any disciplinary report. Each of

these claims is premised upon a liberty interest in freedom from

disciplinary segregation which is not constitutionally cognizable

in the wake of Sandin.
13

Finally, Spellmon argues that he has alleged a valid claim

for retaliation under the First and Fourteenth Amendments. 

Spellmon contends that all the acts of defendants alleged in his

complaint were motivated by retaliation, primarily in response to

his litigation activities. Spellmon points to his allegation

that, eight days prior to filing a false disciplinary report

against Spellmon, Willmore stated to an inmate who asked if

Spellmon was in trouble, “He filed a grievance on me.” Spellmon

also contends that support for his retaliation claim lies in his

allegations that Thomas wanted him confined in close custody

because he was a “pain in the ass,” that Carroll arbitrarily

terminated his law library access, and that Carroll initiated a

false report upon being disappointed that he didn’t find

marijuana or cash in Spellmon’s cell.

The law is clearly established in this circuit that “a

prison official may not retaliate against or harass an inmate for

exercising the right of access to the courts, or for complaining

to a supervisor about a guard’s misconduct.” Woods v. Smith, 60

F.3d 1161 (5th Cir. 1995), cert. denied sub nom. Palermo v.

Woods, ___ U.S. ___, 116 S.Ct. 800 (1996). Prisoner claims of

retaliation, however, must be “carefully scrutinize[d].” Id. at

1166. “‘Claims of retaliation must . . . be regarded with

skepticism, lest federal courts embroil themselves in every

disciplinary act that occurs in state penal institutions.’” Id.

(quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), cert.
14

denied, ___ U.S. ___, 115 S.Ct. 1371 (1995)). An inmate bringing

a retaliation claim “must allege the violation of a specific

constitutional right and be prepared to establish that but for

the retaliatory motive the complained of incident . . . would not

have occurred. This places a significant burden on the inmate.” 

Id. (citations omitted).

The district court did not expressly consider any

allegations other than Carroll’s dissatisfaction with the cell

search when it concluded that Spellmon’s allegations of

retaliation were inadequate. Having considered all allegations

which Spellmon argues on appeal constitute a sufficient legal

basis for his retaliation claim, we conclude that the district

court’s dismissal was appropriate.

We note initially that Spellmon’s general allegation that he

had a reputation throughout the Texas Department of Criminal

Justice as a “writ-writer” is, without more, insufficient to

establish that the adverse disciplinary actions would not have

been taken but for the retaliatory motive. As to Willmore,

Spellmon’s only other relevant factual allegation concerns

Willmore’s comment to another prisoner about Spellmon filing a

grievance against him. The mere fact that this isolated remark

was made eight days prior to Willmore’s filing of the allegedly

false disciplinary report does not give rise to a reasonable

inference that the disciplinary report was motivated by

retaliation for the grievance. Neither does Carroll’s alleged
15

threat to file a report against Spellmon if Spellmon filed a

grievance against him, made three days after Carroll filed the

possession of contraband disciplinary report, support Spellmon’s

claim that any action actually taken by Carroll was retaliatory. 

Spellmon’s contention that Carroll filed the disciplinary report

because he was disgruntled about not finding any marijuana or

cash in Spellmon’s cell is not only pure speculation, but also

fails to assert that the alleged retaliation was in response to

the exercise of a constitutional right. Spellmon’s argument

concerning Thomas’s desire to place him in close custody is also

inadequate to support a retaliation claim because Thomas’s

alleged comments are not alleged to have resulted in any adverse

action.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.