IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20003

WARREN PIERRE CANADY, 

 Petitioner–Appellant, 

v. 

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent–Appellee. 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:14-CV-1124

Before KING, JOLLY, and PRADO, Circuit Judges.*

PER CURIAM:**

Warren Canady appeals the district court’s grant of summary judgment 

in favor of the Director of the Correctional Institutions Division of the Texas 

Department of Criminal Justice (“TDCJ”) in a case seeking habeas corpus 

relief. Canady’s habeas petition challenged his prison disciplinary conviction 

for possession of contraband, i.e., materials relating to the Uniform 

 

* Carolyn Dineen King, Circuit Judge, concurs in the judgment only.

** 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.

United States Court of Appeals

Fifth Circuit

FILED

April 24, 2017

Lyle W. Cayce

Clerk

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Commercial Code (“UCC”). Canady contends that he was denied due process 

because he did not receive prior notice that he could be punished for possessing 

such material. Canady also asks this Court to grant a preliminary injunction 

against the Director so that he may access UCC material. For the following 

reasons, we REVERSE the district court’s grant of summary judgment and 

REMAND. We DENY Canady’s petition for a preliminary injunction. 

I. 

On February 19, 2014, law library staff at the Ellis One Plantation Unit, 

the prison where Canady was confined, received training regarding certain 

types of documents relating to the UCC that were considered contraband. Six 

days later, Frank Hoke, the coordinator of the Access to the Court Program, 

informed prison staff that UCC material would not be allowed into TDCJ 

facilities and told them that, if they found inmates with such material, they

should confiscate the material and charge the inmates with possession of 

contraband, a disciplinary offense.1

On March 12, 2014, Officer Helen Chenevert, the prison law librarian, 

searched Canady’s property and found material relating to the UCC. Two days 

later, Canady was notified that he had been charged with a disciplinary offense 

for “possess[ing] contraband, namely, UCC (Uniform Commercial Code) 

material, which is an item that is not allowed or assigned to an offender, and 

 

1 At the time, the TDCJ Disciplinary Rules and Procedures defined “contraband” as:

a. Any item not allowed when the offender arrived at the TDCJ, not given or 

assigned to an offender by the TDCJ, and not bought by an offender for 

their use from the commissary; . . . .

c. Any item which, in the judgment of TDCJ staff, unreasonably hinders the 

safe and effective operation of the unit; . . . .

e. Any item received or sent through the mail that is not approved in 

accordance with the TDCJ or facility correspondence rules; and

f. Anything an offender is not supposed to have, including, but not limited 

to: . . . Books, magazines, or newspapers that are not approved for an 

offender to have . . . .

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not bought by the offender for his use from the commissary.” On March 19, 

2014, prison officials conducted a disciplinary hearing in Canady’s case, which 

Canady elected not to attend. The hearing officer found Canady guilty of the 

charged offense and punished him by, among other things, revoking twentynine days of good-time credits. Canady appealed this decision through the 

prison system, but prison officials upheld the conviction. 

Canady subsequently filed a pro se habeas petition in the district court,2

contending that he was denied due process by being deprived of good-time 

credits without having received prior notice that possessing UCC material was 

prohibited. See Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir. 2007)

(“[W]hen a state inmate enjoys a constitutional expectancy to an early release 

from prison based on the accumulation of good-time credits, he has a protected 

liberty interest and is entitled to due process before he may be deprived of such 

credits.”). The Director countered with a motion for summary judgment. The 

district court granted the Director’s summary judgment motion and dismissed

Canady’s case, holding that the TDCJ’s disciplinary rules provided adequate 

notice that the materials in Canady’s possession constituted contraband. 

Canady timely appealed. On November 17, 2015, this Court granted a 

COA on Canady’s claim that he did not receive prior notice that he could be 

punished for possessing UCC material. In October 2016, Canady filed a 

petition for a preliminary injunction in this Court, asking that we require 

prison officials to allow him to access UCC material. We must decide: 

(1) whether Canady is entitled to a preliminary injunction; (2) whether Canady 

 

2 A habeas petition is the proper method for seeking to have good-time credits 

reinstated. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is 

challenging the very fact or duration of his physical imprisonment, and the relief he seeks is 

a determination that he is entitled to immediate release or a speedier release from that 

imprisonment, his sole federal remedy is a writ of habeas corpus.”).

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has abandoned his habeas claim; and (3) whether the district court erred in 

granting summary judgment. 

II. 

“As we begin our review, we are mindful that ‘we liberally construe briefs 

of pro se litigants and apply less stringent standards to parties proceeding pro 

se than parties represented by counsel.’” Haase v. Countrywide Home Loans, 

Inc., 748 F.3d 624, 629 (5th Cir. 2014) (quoting Grant v. Cuellar, 59 F.3d 523, 

524 (5th Cir. 1995)). 

A. 

We begin by addressing Canady’s petition for a preliminary injunction. 

Canady contends that prison officials violated his First Amendment rights by 

seizing the UCC material from his possession, so he asks this Court to require 

prison officials to allow him to access UCC material. But Canady never raised 

this claim before the district court. We therefore decline to consider his 

petition. Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 

F.3d 307, 316–17 (5th Cir. 2000) (“It is a bedrock principle of appellate review 

that claims raised for the first time on appeal will not be considered.”). 

B. 

Next, we consider whether Canady has abandoned his habeas claim on 

appeal. The Director contends that this Court lacks jurisdiction or, 

alternatively, Canady has abandoned his habeas claim because: Canady has 

not requested habeas relief in his appellate brief, which states that he “seeks 

the necessary tort relief through 42 U.S.C. § 1983 in the deprivation of his 

liberty and property” and requests monetary damages; and Canady did not 

raise a § 1983 claim in the district court. We disagree. 

The mere fact that a pro se appellant incorrectly labels his claim and 

misidentifies the available relief does not mean that he has abandoned his 

claim on appeal. As we explained in Rosin v. Thaler, “[t]he label attached to a 

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prisoner’s pro se pleading is not controlling; rather, courts must look to the 

content of the pleading.”3 417 F. App’x 432, 434 (5th Cir. 2011) (per curiam). 

Consequently, in Rosin, when a pro se prisoner sought damages and injunctive 

relief before a district court “in a submission styled as a 28 U.S.C. § 2254 

application” but, on appeal, argued that he had not sought relief under § 2254 

and tried “to bring claims for civil rights violations under 42 U.S.C. § 1983,” 

we construed his request “as both a request for a COA for any § 2254 claims 

and an appeal of the dismissal of any civil rights claims.” Id. at 433. 

Canady’s case is similar to Rosin. Canady filed this lawsuit in the 

district court as a petition for a writ of habeas corpus under § 2254, and the 

district court properly construed his claim as such. Canady’s notice of appeal 

and motion for a COA reiterated his intention to appeal “the loss of good time 

credit.” And although Canady’s merits brief states that he seeks monetary 

damages under § 1983, its argument focuses on whether Canady was 

disciplined (and therefore lost good-time credits) without receiving fair 

warning that the materials he possessed were contraband—an argument that 

supports the claim on which the COA was granted and appears to be aimed at 

challenging the district court’s denial of habeas relief. 

Accordingly, we retain jurisdiction over this case and hold that Canady 

has not abandoned his habeas claim on appeal. To the extent, however, that 

Canady seeks monetary damages under § 1983, we decline to consider those 

claims for relief because they were not raised before the district court. Stewart 

Glass, 200 F.3d at 316–17. 

 

3 In Herring v. Cotten, this Court held that an appellant had “not appeal[ed] the 

dismissal of what the district court construed as his habeas claims” because he only sought 

monetary damages on appeal and did not “allege that he [was] entitled to habeas relief from 

being held for five weeks without bond.” 51 F.3d 1042 (5th Cir. 1995) (unpublished table 

decision). But Herring is not necessarily analogous to the instant appeal because it is unclear 

whether the Herring appellant was proceeding pro se. 

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C. 

We now turn to the merits of Canady’s habeas claim. “We review a 

summary judgment de novo, ‘using the same standard as that employed by the 

district court under Rule 56.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 

2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000)). 

Summary judgment should be granted “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is ‘genuine’ if the evidence 

is sufficient for a reasonable jury to return a verdict for the nonmoving party,” 

and a “fact issue is ‘material’ if its resolution could affect the outcome of the 

action.” Ramirez v. Martinez, 716 F.3d 369, 374 (5th Cir. 2013). “Because this 

case arises in a summary judgment posture, we view the facts in the light most 

favorable to [Canady], the nonmoving party.” City & County of San Francisco 

v. Sheehan, 135 S. Ct. 1765, 1769 (2015). “The evidence of the nonmovant is 

to be believed, and all justifiable inferences are to be drawn in his favor.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

The Due Process Clause requires “that laws give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, so that he 

may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

Thus, we have “expressly held that it is a violation of due process to punish 

inmates for acts which they could not have known were prohibited.” Reeves v. 

Pettcox, 19 F.3d 1060, 1061 (5th Cir. 1994) (per curiam). “An inmate is entitled 

to prior notice, or ‘fair warning,’ of proscribed conduct before a severe sanction,” 

such as deprivation of good-time credits, may be imposed. Id. (quoting Adams 

v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984)). 

The record seems clear that no specific notice of the prohibition on UCC 

material was provided to inmates, including Canady, before Canady was 

charged with possession of contraband. Canady contends, further, that he 

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could not have known the UCC material was contraband given that: there is 

no evidence that any inmate before him had been punished for possessing UCC 

material; and the material was approved through the prison mail system and 

available in the prison law library. The Director counters that the definition 

of contraband in the TDCJ’s disciplinary rules provided Canady with adequate 

notice because the rules only allow inmates to possess approved materials and

prison staff never explicitly authorized inmates to possess UCC material. The 

Director also notes that the material in Canady’s possession was not simply 

UCC forms or excerpts but included, among other things, “articles instructing 

individuals on how to circumvent the use of currency or otherwise not pay for 

anything, and how to get the federal government to ‘pay back’ the ‘national 

debt’ owed to oneself.” Because prison staff determined that this type of 

material concerned “either plans for activities in violation of institutional 

rules, or plans for future criminal activity,” the Director argues that the UCC 

material clearly fell within the disciplinary rules’ prohibition on items that 

“unreasonably hinder[] the safe and effective operation of the unit.” 

Canady presented evidence that the UCC material in his possession had 

been previously approved or made available by prison staff. Canady has 

consistently stated that he obtained the UCC material “via general 

correspondence approved through the prison mail system” and “from law books 

and legal material, in the law library and made accessible for legal research 

and/or general use.” And he has provided supporting affidavits from three 

other inmates stating that Officer Chenevert, the “law library supervisor, 

provided . . . uniform access to legal books, case law and/or reference material 

pertaining to the Uniform Commercial Code.” The Director does not dispute 

this evidence in either its motion for summary judgment or its brief before this 

Court. The only contrary evidence in the record is Officer Chenevert’s 

testimony that UCC information was not accessible through the law library. 

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If they had previously approved or made available UCC material, prison 

officials needed to notify inmates that the material was no longer permitted

before taking disciplinary action against them and give inmates an opportunity

to dispose of the contraband. See Reeves, 19 F.3d at 1061–62. Nothing in the 

record suggests that prison officials did so. Officer Chenevert testified that 

Canady was notified that the materials were contraband “at the time of 

discovery.” And as we have noted, the Director has not pointed to any evidence 

that the policy prohibiting possession of UCC material was otherwise 

communicated to inmates. 

The Director contends that Canady was on notice that his UCC material 

was contraband because the material carried its own warning of wrongdoing. 

But nothing in the record indicates that any inmate before Canady was 

punished for possessing UCC material or that it was clearly insubordination

to possess such material. See Adams, 729 F.2d at 369. There is therefore a 

factual dispute, at least, as to whether the material was of such a nature that 

it “carr[ied] with it its own warning of wrongdoing” such that inmates would 

have known that “serious disciplinary sanctions would be imposed for their

conduct,” especially if the material had previously been approved or made 

available by prison personnel. See id. (quoting Shawgo v. Spradlin, 701 F.2d 

470, 478 (5th Cir. 1983)). Thus, we hold that the district court erred in 

granting the Director summary judgment. 

III. 

For the foregoing reasons, Canady’s petition for a preliminary injunction 

is DENIED. Additionally, we REVERSE the district court’s grant of summary 

judgment and REMAND for a factual determination of whether, under these 

circumstances, Canady was denied his constitutional due process right to fair 

warning that possessing UCC material violated prison rules. Finally, Canady’s 

motion for a fair hearing is DENIED as moot. 

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