# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 31015 Summary Calendar

**Arthur Flemming Moler,**

Plaintiff

— Appellant **,**

versus
**Clara Baty; Beaubauf; Meghan Borne; Tecora Ballom; Steve Beasley; Et Al,** 

Defendants

— Appellees

**.**

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:19

- CV

- 809

Before **Stewart, Duncan,**  and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * Arthur Flemming Moler appeals from the dismissal with prejudice of his pro se complaint, filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971), as frivolous and for failure to state a

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 15, 2022 Lyle W. Cayce Clerk Case: 19-31015 Document: 00516472238 Page: 1 Date Filed: 09/15/2022No. 19

- 31015

2 claim on which relief may be granted. We review a 28 U.S.C. § 1915(e)(2)(B)(i) dismissal as frivolous for abuse of discretion. Taylor v. Johnson , 257 F.3d 470, 472 (5th Cir. 2001). Dismissals under § 1915(e)(2)(B)(ii) for failure to state a claim are reviewed de novo using the same standard applicable to dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6). Black v. Warren , 134 F.3d 732, 734 (5th Cir. 1998). We “accept [] all well

- pleaded facts as true and view[] those facts in the light most favorable to the plaintiffs.” Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir. 2009) (internal quotation marks and citation omitted). A pro se litigant’s pleadings are construed liberal ly, and his claims will be dismissed only if he could prove no set of facts that would entitle him to relief. See Haines v.
Kerner , 404 U.S. 519, 520

- 21 (1972). Moler’s release from imprisonment during the pendency of this appeal has rendered moot his cla ims for declaratory relief. See Herman v. Holiday , 238 F.3d 660, 665 (5th Cir. 2001). However, we retain jurisdiction to consider Moler’s claims for money damages. See Cruz v. Estelle , 497 F.2d 496, 499 (5th Cir. 1974). In his complaint, Moler claimed t hat the defendants violated his due process rights during the proceedings for a retaliatory disciplinary violation that was reported on July 16, 2018. The magistrate judge recommended that this due process claim be dismissed for failure to state a claim o n which relief may be granted and as frivolous because Moler had not alleged that the disciplinary violation resulted in the loss of any protected interests, such as good time credits. However, in his objections to the magistrate judge’s report, Moler sta ted that he had lost 27 days of good time credit due to the disciplinary violation. Moler also sought to amend his complaint to include the loss of 27 days of good time credit. A fter the district court adopted the magistrate judge’s report and dismissed his complaint, Moler filed several post

- judgment motions referencing his loss of good time credit. The district Case: 19-31015 Document: 00516472238 Page: 2 Date Filed: 09/15/2022No. 19

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3 court denied Moler’s motion to amend his complaint and his post

- judgment motions that were filed before Moler appealed

. To establish a due proc ess violation, a plaintiff must show that he was deprived of a liberty interest protected by the Constitution or other federal law. Sandin v. Conner , 515 U.S. 472, 483

- 84 (1995). In the context of prison disciplinary proceedings, a prisoner’s constitutio nally protected liberty 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 a nd significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484 (internal quotation marks and citation omitted). Federal prisoners have a liberty interest in their accumulated good time credit. Henson v. U

. S

. Bure au of Prisons , 213 F.3d 897, 898 (5th Cir. 2000). Before dismissing a pro se litigant’s complaint for failure to state a claim, a district court ordinarily must give the litigant an opportunity to amend his complaint to remedy any deficiencies. See Brewst er v. Dretke , 587 F.3d 764, 767

- 68 (5th Cir. 2009). Moreover, a district court may construe an issue raised for the first time in objections to the magistrate judge’s report as a motion to amend a complaint. United States v. Riascos , 76 F.3d 93, 94 (5th Cir. 1996). Because Moler’s objection s to the magistrate judge’s report and his motion to amend his complaint both raised his loss of good time credit, which undermines the basis for dismissing his due process claim , that claim shoul d not have been dismissed on that basis. The current record is not developed sufficiently to permit further review of that claim. Accordingly,

we **VACATE** the district court’s dismissal of Moler’s due process claim for the disciplinary violation that resul ted in the loss of good time credit and we
**REMAND** that claim to the district court for further consideration. We express no opinion on the merits of Moler’s claim. This disposition renders Case: 19-31015 Document: 00516472238 Page: 3 Date Filed: 09/15/2022No. 19

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4 moot Moler’s challenges to the district court’s denial of his pos t

- judgment motions. Moler’s remaining claims allege that: (1) his administrative grievances were not handled in a proper manner; (2) he was improperly placed into solitary confinement on various occasions and was improperly given a Management Variable clas sification; (3) some of the defendants used racially discriminatory language against him; and (4) many of the defendants’ actions against him were done in retaliation for the filing of his administrative grievances. We recently “decline[d] to extend Biven s to include First Amendment retaliation claims against prison officials.” Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons , 998 F.3d 682, 685

- 86 (5th Cir. 2021). The district court properly dismissed the other remaining claims after dete rmining that they did not implicate a constitutionally protected interest. See Butler v. S. Porter , 999 F.3d 287, 296 (5th Cir. 2021), cert. denied , 142 S. Ct. 766 (2022); Geiger v. Jowers , 404 F.3d 371, 373

- 74 (5th Cir. 2005); Calhoun v. Hargrove , 312 F. 3d 730, 734

- 35 (5th Cir. 2002). Accordingly, we
**AFFIRM** the district court’s judgment as to these claims. Case: 19-31015 Document: 00516472238 Page: 4 Date Filed: 09/15/2022