1 Chief Judge of the Eastern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 93-1267.

Earnest Ray WALKER, Plaintiff-Appellant,

v.

NAVARRO COUNTY JAIL, ET AL., Defendants-Appellees.

Oct. 19, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before KING and BARKSDALE, Circuit Judges, and PARKER 1 , District Judge.

PER CURIAM:

Appellant, Earnest Ray Walker brought suit against Appellees, the Navarro County Jail and

Sheriff Hodge, pursuant to 42 U.S.C. § 1983, alleging that the Appellees acting under color of law,

violated his Constitutional rights. Appellant filed the suit p ro se and in forma pauperis. The district

court dismissed the case as frivolous, and Walker appealed.

At the time he filed this civil rights action, Walker was a pretrial detainee at Navarro County

Jail at Corsicana Texas. At mealtime on May 23, 1991, Walker asked Officer Scott to open his cell

door to allow him to retrieve some chips to eat. The officer refused and Walker allegedly replied,

"Fo rget it." The officer thought Walker had used an obscenity, and placed him in solit ary

confinement. The following day, Walker attended a disciplinary hearing which resulted in Walker

being assessed a punishment of five days in solitary confinement.

In his § 1983 complaint, he alleged that the defendants, Sheriff Hodge and the Navarro

County Jail, deprived him of his rights under the Due Process Clause by plac ing him in so litary

confinement prior to a hearing and by denying him an opportuni ty to call witnesses at his disciplinary

hearing. Walker also complains that he was confined for six days instead of five, his personal mail

was returned to the sender during his period in solitary, and his sister was turned away when she came

to visit him. He sought damages in the amount of $50,000.2 Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

3 Hew itt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The magistrate judge conducted a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th

Cir.1985) and recommended that the district court deny relief. The district court dismissed the action

as frivolous.

Due Process claim

Pursuant to 28 U.S.C. § 1915(d), a dist rict court may dismiss an i n forma pauperis

proceeding "if satisfied that the action is fri vo lo us or malicious." A finding of frivolousness is

appropriate whenever it appears that the claim has no arguable basis in law or fact. A ncar v. Sara

Plasma, Inc., 964 F.2d 465, 468 (5th Cir.1992).

Walker contends that his Due Process rights were violated because he was not given a full

disciplinary hearing and he was not allowed to call witnesses. He also contends that he was held in

solitary for six days, rather than the five days imposed at the hearing.

The Supreme Cour t has set out two standards in this area [of disciplinary procedures],

depending on the sanction imposed upon the prisoner and consequences flowing from it. A

prison er punished by solitary confinement and loss of good-time credits must receive: (1)

written notice of the charges against him at least twenty-four hours before the hearing, (2) a

written statement of the factfinders as t o t he evidence relied on and the reasons for the

disciplinary action taken, and (3) the opportuni ty to call witnesses and present documentary

evidence in his defense, unless these procedures would create a security risk in the particular

case. W olff, [ 2 ] 418 U.S. at 563-66, 94 S.Ct. at 2978-80. On the other hand, a mere few days

administrative segregation, having no effect on parole, only merits an informal nonadversary

evidentiary review as long as the prisoner receives notice and has an opportunity to present

a statement. Hewitt, [ 3 ] 459 U.S. at 476-77, 103 S.Ct. at 874.

Jackson v. Cain, 864 F.2d 1235, 1252 (5th Cir.1989) (internal quotations omitted).

The officer placed Walker in solitary confinement following the incident, and Walker received

an informal hearing the next day. Walker and Officer Scott were given opportunities to testify as to

their respective versions of the facts. Walker was returned to solitary confinement for five days as

discipline for his conduct, but ther e is no allegation that there was any effect on his parole. The

magistrate judge applied the Hewitt standard, rather than the Wolff standard, and determined that the

procedure was "fully adequate."

This Court has not drawn a clear boundary between the two standards. D zana v. Foti, 8294 Walker filed a motion to consolidate his civil actions. The magistrate judge recommended

that the motion be denied because consolidation "would only delay the disposition of this case,"

and the district court denied the motion. R. 1, 46, 53. Walker states but does not argue this issue F.2d 558, 561 (5th Cir.1987). In the prison context, punishment by loss of good-time credits and

solitary confinement is governed by the Wolff standard. Id. Alt hough it is not clear, the W olff

standard may also apply when pretrial detainees are placed in solitary confinement in a county jail.

In Pembroke v. Wood County, Tex., 981 F.2d 225, 229 (5th Cir.1993), a pretrial detainee in a county

ja il "was placed in isolation for five days for the purpose of punishment, without due process

protections." This Court stated, in dicta, that "[t]he use of punitive isolation without affording due

process is unacceptable and violates the 14th Amendment." P embroke, 981 F.2d at 229 (citing Wolff

)

Arguably, Walker should have received a formal hearing that conformed to the Wolff standard

instead of an informal Hewitt -type hearing. Thus, his claim has an arguable basis in law and fact; and

dismissal as frivolous was an abuse of discretion.

Remaining claims

Walker's remaining claims that he received six days in solitary instead of five, he was deprived

of a visit from his sister, and prison personnel returned his mail from a friend need not be addressed.

They are all consequ ences flowing from the decision to place him in solitary confinement. Their

resolution hinges on the preliminary question whether he received the process that was due. To the

extent that Walker's claim that he was deprived of his sister's visit raises the question whether he was

deprived of a liberty interest in the visitation list, he did not raise the issue in the district court. S ee

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991).

Walker asserts t hat he does not have adequate access to a law library, legal materials, or

counsel; therefore, he has been denied meaningful access to the courts. Liberally construed, his brief

also contends that his legal mail was opened and read outside of his presence and without his consent.

At the Spears hearing, the magistrate judge que st ioned Walker regarding his First

Amendment claims. He replied that the "library issue" did not pertain to this action and was raised

in a separate case. 4 Therefore, the issue has not been presented to the district court, and this Courton appeal; therefore, it is abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir.1987). will not address it for the first time on appeal. See Varnado, 920 F.2d at 321.

Walker's legal mail tampering claim implicates both his right of access to the courts and his

right to free speech. In order for Walker's claim to rise to the level of a constitutional violation of his

right to access to the courts, he must allege that his position as a litigant was prejudiced by the mail

tampering. See Henthorn v. Sw inson, 955 F.2d 351, 354 (5th Cir.), cert. denied, --- U.S. ----, 112

S.Ct. 2974, 119 L.Ed.2d 593 (1992). Because Walker has only asserted that his legal mail was

opened and read outside of his presence and without his consent, he has failed to state a cognizable

constitutional claim for denial of his right to access to the courts. S ee Brewer v. Wilkinson,

--- F.3d

---- (5th Cir.1993).

Walker has also failed to state a cognizable free speech claim. In light of the fact that a jail

has a legitimate security interest in o pening and inspecting incoming mail for contraband, s ee

Thornburgh v. Abbott, 490 U.S. 401, 413-414, 109 S.Ct. 1874, 1881-82, 104 L.Ed.2d 459 (1989);

see also Turner v. Safley, 482 U.S. 78, 91-92, 107 S.Ct. 2254, 2262-6 3, 96 L.Ed.2d 64 (1987),

Walker's allegation that his incoming legal mail was opened and read but not censored does not rise

t o t he level of a constitutional violation. S ee Brewer,

--- F.2d at

----. Thus, Walker's claims wit h

respect to his incoming legal mail are without merit.

Conclusion

The judgment of the district court is AFFIRMED IN PART, and VACA TED and

REMANDED IN PART for further proceedings consistent with this opinion.