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this opinion should not be published and is not precedent except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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-60355

Summary Calendar

 

CHARLES A. GRAYER Plaintiff-Appellant,

versus

ANN L. LEE; JOAN ROSS; PATTY LEGG;

LARRY HARDY; LT. DAWSON Defendant-Appellee.

 

Appeal from the United States District Court

For the Northern District of Mississippi

USDC No. 96-CV-143-D-B

 

September 18, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Charles A. Grayer, prisoner # 41489, is serving a life

sentence in the Mississippi prison system under a judgment not

challenged here. Grayer commenced this action, pro se and in forma

pauperis, against certain officials in the Mississippi prison

system under 42 U.S.C. § 1983, seeking monetary, declaratory and

injunctive relief. He challenges the constitutionality of a
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disciplinary hearing and subsequent classification hearing that

resulted in his assignment to “close confinement” within the prison

system.

Grayer’s complaint states that he appeared before a

disciplinary committee, of which Defendant Legg was chairperson, in

July, 1995. The disciplinary committee recommended a change in

Grayer’s status in the prison system to “close confinement.” The

committee based its decision on an alleged rule violation by Grayer

(constructing a “dummy” from two pillows and a T-shirt and hiding

it under his bed). Subsequently, Grayer was placed in close

confinement status by a confinement committee, of which Defendant

Legg was a member. Grayer challenges this action of the

confinement committee here.

Grayer argues that the change in his status was improper

because he did not receive an adequate hearing from the

disciplinary committee or from the confinement committee. He

argues that the disciplinary committee’s decision was unfair

because some of the evidence that he requested was not presented.

He further contends that his change in status was contrary to a

Mississippi Department of Corrections regulation that requires an

“impartial classification committee” because one of the people who

served at his disciplinary hearing also served on the

classification committee.

The district court dismissed Grayer’s complaint on its own

motion for failure to state a claim for which relief could be
3

granted. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 12(b)(6); 42

U.S.C. § 1997e(c)(1). We review the dismissal for abuse of

discretion. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). In

reviewing the district court’s opinion, we note briefly that

Congress has recently changed the standard district courts use to

decide whether to dismiss such complaints.

Prior case law in this circuit held that an in forma pauperis

complaint should not be dismissed as frivolous under § 1915(d) on

the grounds that it fails to state a claim. Pugh v. Parish of St.

Tammany, 875 F.2d 436, 438-39 (5th Cir. 1989) (a complaint filed in

forma pauperis is not automatically frivolous within the meaning of

§ 1915(d) because it fails to state a claim, since this standard

fails to differentiate between outlandish legal theories and those

that are close but ultimately unavailing), citing Neitzke v.

Williams, 109 S.Ct. 1827, 1830-31 (1989). Dismissal of such

complaints was deemed proper only if the complaint had no basis in

law or fact. Id. However, recent amendments to 42 U.S.C. § 1997e

require a district court to dismiss prisoner § 1983 suits if the

court determines that the action does not state a claim for relief.

See Prison Litigation Reform Act of 1995, Pub. L. No. 104-134 [§

101(a)] [§ 803(d)], 110 Stat. 1321 (1996). This act became

effective on April 26, 1996, four days before the district court

dismissed Grayer’s complaint. However, we need not consider here

which law applies to Grayer’s complaint, because it must be
4

dismissed regardless of which law is applied. Even after applying

a liberal construction to his complaint, Haines v. Kerner, 404 U.S.

519 (1972), Grayer is not entitled to relief because his challenge

to the disciplinary and confinement committee proceedings lacks an

arguable legal basis. It is thus “frivolous” for the purposes of

§ 1915(d) and may be dismissed regardless of whether the new

provisions of § 1997e apply.

A prisoner’s liberty interest is “generally limited to freedom

from restraints 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 v. Conner, 115 S.Ct. 2293, 2295

(1995). The change in Grayer’s confinement status cannot be said

to impose a more atypical or significant hardship than that

involved in Sandin. In that case, an inmate was released from his

single-man cell only for one 50-minute period each day, during

which he remained isolated from other inmates and constrained by

leg irons and waist chains. Id. at 2305 (Breyer, J., dissenting).

The Supreme Court found no constitutional violation. Id. at 2295.

Nothing in the record suggests that Grayer’s “close confinement”

exceeds the restrictions approved in Sandin. Grayer’s allegations

of transfer to “close confinement” thus fail to allege a

constitutional violation. See Moody v. Baker, 857 F.2d 256, 257-58

(5th Cir.) (“An inmate has neither a protectable property nor
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liberty interest in his custody classification . . . .”), cert.

denied, 488 U.S. 985 (1988). Furthermore, unlike the Third Circuit

case cited in Grayer’s brief, no request for additional evidence

was made by either the disciplinary committee or Grayer during his

administrative hearing. See Woods v. Marks, 742 F.2d 770, 771 (3rd

Cir. 1984) (remanding on fact question of whether state officials

denied prisoner’s due process by refusing to permit him to call

witnesses at disciplinary hearing). Grayer’s claim that he was

denied due process has no basis in law.

Finally, Grayer does not challenge the district court’s

dismissal of his claim concerning the administrative remedy

procedure; accordingly, this court will not consider the issue.

Brinkman v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748

(5th Cir. 1987).

The dismissal of Grayer’s complaint is AFFIRMED.