United States Court of Appeals

for 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 Circuit 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2022

Lyle W. Cayce

Clerk

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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 liberally, 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 claims 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 that 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 on 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 stated 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. After 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 

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

motions that were filed before Moler appealed.

To establish a due process 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 constitutionally 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 and 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. Bureau 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 Brewster 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 objections 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 

should 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 resulted 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 

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moot Moler’s challenges to the district court’s denial of his post-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 classification; (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 Bivens 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 determining 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.

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