* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not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 5 TH C IR R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60010

DESMOND EARL PHILLIPS,

Plaintiff-Appellant,

versus

STEVE W. PUCKETT; JAMES V. ANDERSON, Superintendent,

Mississippi State Penitentiary; CHRISTOPHER EPPS; EARL JACKSON;

CLYDE PRESLEY; CASE MANAGER QUEEN; LARRY KEYS;

EDDIE BURNETT,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

(4:96-CV-59-S-B)

March 15, 1999

Before GARWOOD, and BARKSDALE, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge: *

On February 15, 1996, Plaint iff Desmond Earl Philli p s, a Mississippi state prisoner

incarcerated at Parchman, Unit 32, and proceeding pro se and in forma pauperis (IFP), filed a civil

complaint against the Commissioner of the Mississippi Department of Corrections (“MDOC”) and

nume rous prison officials for improperly influencing the classification committee, thereby denying him

review of his close-custody classification by an impartial classification committee, and for failing to

provide him annual review hearings. Defendants were never served with the complaint. The district2

court dismissed his claim as frivolous under 29 U.S.C. § 1915(e)(2)(B)(I). For the reasons set forth

below, we AFFIRM in part, VACATE in part, and REMAND in part.

F ACTUAL AND P ROCEDURAL B ACKGROUND

Phillips alleged that on May 10, 1993, he was found guilty by the Disciplinary Committee of

violating MDOC rule 27 and was reclassified from B-custody to C-custody and placed on close

confinement, where he remains. He alleged that from May 1993 to the date of filing he had only one

classification review hearing, held o n July 15, 1994. He alleged that the classification committee

recommended at the July 1994 hearing that Phillips remain on close confinement “due to orders from

superior Administrative official s” who improperly influenced the classification committee. As

evidence of this, Phillips attached a copy of a November 1994 letter demonstrating that the

“Admini st rat ion” had mandated that prisoners who were on C-custody close confinement due to

“money order fraud/involvement” would remain there. He also attached copies of responses to other

prisoners’ grievances and of state court cases, apparent ly t o demonstrate several incidents of

improper influence on classification committees by MDOC employees.

Phil l ips alleged that “being denied the opportuni ty to be reviewed by an Impartial

Classification Committee, for the possibility of being reclassified back to the general prison population

has imposed significant hardship on him, in relationship to ordinary incidents of Prison Life in General

Population and personal life

. . .” He alleged that on close confinement he was denied privileges

enjoyed by the general population, including contact visits, other visits, canteen calls, yard calls, daily

showers, radio and television privileges, and vocational and educational programs. Phillips attached

drawings and descriptions of the conditions of confinement on Unit 32. He sought an inj uncti on

ordering the defendants to give him an impartial classification hearing.

Before the defendants were served, the district court, s ua s ponte

, dismissed Phillips’ complaint

for failure to state a claim upon which relief could be granted. The district court stated that “[p]rison

regulations which do not affect the duration of an inmate’s confinement afford an inmate no protected1 According to the “Disciplinary Procedure s fo r Inmat es of the Mississippi State Penitentiary”

approved by the district court in Gates v. Collier

, 454 F.Supp 579, 593 (N.D. Miss. 1978), aff’d

, 606

F.2d 115 (5th Cir. 1979), an inmate found guilty of having committed a “serious violation” could be,

inter alia, reclassified and reassigned or assigned to an “adjustment center or segregation (isolation)

for a period not to exceed twenty (20) days[.]”

3 liberty interest. Any delay in releasing plaintiff into the general prison population, even if not

justifiable, does not rise to a constitutional issue cognizable under § 1983.”

On appeal, this court, citing Sandin v. Conner

, 515 U.S. 472 (1995), determined that

“Phillips’ allegation that he has been subject to disc iplinary confinement for three years without

review arguably presents an ‘atypical significant deprivation’ t hat implicates a liberty interest.” P hillips

v. Puckett

, No. 96-60372 (5th Cir. Dec. 6, 1996) (unpublished). This court construed the district

court’s dismissal for failure to state a claim a s a dismissal for frivolousness under the former 28

U.S.C. § 1915(d). Because the issue was not frivolous, this court vacated the district court’s dismissal

and remanded for reconsideration following further factual development.

On remand, the magistrate judge held a h earing on January 9, 1997, pursuant to S pears v.

McCotter

, 766 F.2d 179 (5th Cir. 1985) (establishing courtroom hearing as substitute for motion for

more definite statement in pro se cases), overruled on other grounds

, Neitzke v. Williams

, 490 U.S.

319, 324 (1989). Phillips testified that he was reclassified to C-custody and placed on close

confinement in Unit 32, a maximum-security-type unit, in May 1993 after the disciplinary committee

found him guilty of violating Rule # 27 (related to money order fraud). Phillips testified that he was

still on close confinement in Unit 32. Phillips explained that inmates who commit rules violations are

placed in isolation for 20 days, after which they can either be placed on C-custody or returned to Bcustody (or whatever their custody classification). 1 Phillips asserted that his confinement on Ccustody did not differ from “disciplinary isolation”; however, C-custody differed fr om this 20-day

isolation time.

On July 15, 1994, the classification committee recommended that Phillips remain on clo se

confinement. Phillips testified that he has not had another review since then. He later stated that he

had an “annual” review in March 1996 after he filed the instant § 1983 complaint, but that the hearing4

was not impartial due to outside influence on the classification committee by the defendants in the

instant suit.

Phillips complained that the members of the disciplinary commi t t ee who recommended his

reclassification to C-custody made themselves members of the classification committee and approved

their own recommendation, thus he was illegally placed on close confinement. The magistrate judge

asked Phillips if he was aware that the court in Gates v. Collier noted that the MDOC had permission

to do exactly that. Phillips argued that G ates said that the classification committee would review the

recommendation of the disciplinary hearing, not that the member could change from one committee

to the other to review their own recommendation.

Phillips made an oral motion to add case manager Henry Johns as a defendant, a member of

the 1996 classification committee, for acting at the direction of the defendants to continue Phillips

on close confinement and to seek compensatory damages of $25 for each day he was held illegally

in isolation. The magistrate judge granted the motion to amend the complaint.

Counsel for the defendant s explained that Phillips was not given a classification review in

1995 because the statute which had mandated annual review had been amended to require “periodic”

reviews only. Counsel also noted that in October 1996, Phillips had been found guilty of another rules

violation.

Counsel for the defendants argued that Phillips was “not in a disciplinary status and he’s not

in a punishment status, he has been classified in the status and that’s why in this particular case Sandin

does take care of that because it’s not atypical. It is a classification [and] that no inmate enjoys the

right to any particular classification[.]”

The magistrate judge recommended that the complaint be dismissed as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B). As made clear at the S pears hearing, Phillips had not been in disciplinary

confinement or isolation, “but rather had been classified C-custody and placed on close confinement

just as hundreds of other inmates have whose presence in the general population has presented some

threat to security and/or a substantial threat to interference with compliance with federal and state2 Phillips testified at the Spears hearing that he did not request administrative relief, but instead

filed suit in the district court. Phillips believed that he was not required to go t hrough the

Administrative Remedy Program (ARP) because other inmates had filed requests for administrative

relief on the same issue. I n his report and recommendation, the magistrate judge suggested that the

complaint should be dismissed because Phillips had failed to exhaust remedies available through the

ARP. The district court did not adopt the recommendation that the complaint be dismissed for failure

to exhaust ARP remedies.

Under the former version of § 1997e, the district court could dismiss a complaint with prejudice

after a continuance if the court had found that the prisoner had not attempted to pursue administrative

5 laws or prison regulations.” The magistrate judge also noted that Phillips had his classification and

custody status reviewed twice since his reclassification in May 1993. Thus, the m agi strate j udge

recommended a finding that Phillips is not suffering any atypical, significant deprivation of a liberty

intere st as contemplated by S andin “merely because he is housed in Unit 32 as a result of his

participation in a postal money order scam.”

Phillips objected, noting that the magistrate judge’s rec o mmendation was based on a

distinction between disciplinary confinement and close confinement and arguing that, because he was

placed on close confinement for disciplinary reasons, his close confinement could be characterized

as “disciplinary/close confinement.” Phillips argued that this court’s remand was a finding that his

claim was not frivolous and, thus, the only matter that was to be resolved on remand was to develop

and determine who was responsible or liable to Phillips.

The district court addressed Phillips’s objections and, with further elaboration, adopted the

magistrate judge’s report and recommendation. The district court found that the second finding of

frivolousness on remand did not violate this court’s mandate. Additionally, the district court agreed

that, as developed at the Spears hearing, the facts demonstrated that Phillips was really challenging

his classification and found that such reclassification did not raise a cons titutional viol ati on. The

district court also found that Phillips had been afforded classification reviews by an impartial board,

that Phillips had no liberty interest in annual classification reviews, that Phillips was not entitled to

relief on his claim that the disciplinary committee sat as the classification review committee, and that

it was not improper for the administration to express concerns related to the possible reclassification

of inmates. 2remedies reasonably and in good-faith. See Rocky v. Vittorie , 813 F.2d 734, 736 (5th Cir. 1987);

42 U.S.C. § 1997e (1994). Under the former version of § 1997e, the exhaustion requirement was

not mandatory. S ee § 1997e(a)(1994). Under the former version, the court could require exhaustion

"if the court believe[d] that such a requirement would be appropriate and in the interests of justice."

Id

. As part of the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, § 803, 110

Stat. 1321 (Apr. 26, 1996), Congress amended § 1997e, which now provides

that "no action shall be brought wit h respect to prison conditions under § 1983 of this title or any

other federal law, by a prisoner confined in any jail, prison, or other correctional facilit y until such

administrative remedies as are available are exhausted." § 1997e(a) (West Supp. 1997). Because

Phillips filed hi s co mplaint before April 26, 1996, it appears that the PLRA's amendment to §

1997e(a) does not apply to his complaint. S ee Bishop v. Lewis

, 155 F.3d 1094, 1095 (9 th Cir. 1998)

(holding amended version of § 1997e(a) is not retroactive).

6 Wit hin 10 days of the judgment, Ph illips filed a motion to alter or amend the judgment

pursuant to Fed. R. Civ. P. 59(e), in which he cha llenged every finding by the district court. The

district court denied the motion. Phillips t imely no ticed his appeal from the judgment denying his

motion.

D ISCUSSION

I

A district court may dismiss an IFP complaint as frivolous if it lacks an arguable basis in either

law or fact. S ee 28 U.S.C. § 1915(e)(2)(B)(I); Denton v. Hernandez , 504 U.S. 25, 31-34 (1992).

This court reviews dismissals for frivolousness for an abuse of discretion. D enton

, 504 U.S. at 33-34.

Phillips’s timely notice of appeal from the denial of his Rule 59(e) motion brings up the underlying

judgment for review. M artinez v. Johnson

, 104 F.3d 769, 771 (5 th Cir.), cert. denied

, 118 S. Ct. 195

(1997).

A complaint is factually frivolous, if the facts alleged are “clearly baseless.” S ee Talib v.

Gilley , 138 F.3d 211, 213 (5 t h Cir. 1998). A complaint is legally frivolous if it is based on an

"i ndisputably meritless legal theory." M cCormick v. Stalder

, 105 F.3d 1059, 1061 (5 th Cir. 1997)

(citing Neitzke v. Williams

, 490 U.S. 319, 327 (198 9) (interpreti ng form er 28 U.S.C. § 1915(d),

which has since been recodified as § 1915(e)(2)(B)(I))). In identifying this latter standard of review,

it is important to remember that the standard for dismissal under § 1915(e)(2)(B)(I) is not identical7

to the standard for dismissal under Federal Rule of Civil Procedure 12(b)(6). See Neitzke v.

Williams

, 490 U.S. 319, 326 (1989). A district court must dismiss a claim under Rule 12(b)(6)

“without regard to whether it is based on an outlandish lega l t heo ry o r on a close but ultimately

unavailing one.” I d. at 327. In contrast, “[w]hen a complaint raises an arguable question of law which

the district court ultimately finds is correctly resolved against the plaint iff, dismissal on Rule 12(b)(6)

grounds is appropriate, but dismissal on the basis of frivolousness is not.” Id. at 328.

II

To succeed in his claim, Phillips must identify a “constitutionally cognizable liberty interest

sufficient to trigger the protecti on of the Due Process Clause.” S ee Luken v. Scott

, 71 F.3d 192, 193

(5th Cir. 1995). A p riso ner’s liberty interest is “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.” S andin

, 515 U.S. at 482 (citations

omitted).

Liberally construing Phillips’ pleadings, as we must, See Orellana v. Kyle

, 65 F.3d 29, 31 (5th

Cir. 1991), he points to several potential liberty interests. Generally, he contends that he was placed

on close confinement as punishment for a disciplinary violation and, although he has had periodic

classification reviews, those review s were not impartial as the result was dictated, rather than

“suggested,” by the Administration. He asserts that the conditions of close confinement as compared

to the conditions in the general population are “atypical and significant.”

A

At first glance it appears that Phillips is challenging merely his classification status and the fact

of his confinement in close confinement. Under Mississippi law, the classification of prisoners is to

be made by a classification committee. M I SS

. C ODE A NN

. § 47-5-103 (West Supp. 1998). Changes8

in classification may be made only by the classification committee and may not be changed by “any

individual or individuals.” Id. In 1993, when Phillips’ classification was changed as a result of the

rules violation, the statute provided that “[t]he classification of each offender shall be reviewed by

a classification committee at least once a year.” M I SS

. C ODE A NN

. § 47-5-103 (We st 1993). The

statute was subsequently amended to provide that each offender’s classification “may be reviewed

by t he classification committee at least once a year.” M I SS

. C ODE A NN

. § 47-5-103 (West. S upp.

1998) (eff. from and after July 1, 1995). The amended st at ut e also provides that a “classification

board” may make a change in classification if the classification committee’s action is not supported

by sufficient factual information. Id.

This court has h eld t hat the classification of inmates is the responsibility of the Mississippi

Department of Correct io ns, and an inmate has no liberty interest in his custody classification.

Tubwell v. Griffith

, 742 F.2d 250, 253 (5th Cir. 1984) ( citing M ISS

. C ODE A NN

. §§ 47-5-99 through

47-5-103 (1981)). Further, the Due Process Clause of the Fourteenth Amendment does not, by itself,

endow a prisoner with a protected liberty interest in the location of his confinement. M eachum v.

Fano

, 427 U.S. 215, 225 (1976). Thus, to the extent Phillips challenges his classification status and

the fact of his confinement in close confinement, his complaint lacked an arguable basis in law. We

therefore AFFIRM this part of the district court decision.

B

Additionally, Phillips appears to be arguing that the state created a liberty interest in annual

reviews. However, that claim also fails under S andin

. The nature of the complained of action, failure

to hold a review o f Phillips' classification within every 12-month period, is not in the realm of the

"atypical and significant hardship" which would give rise to a protected liberty interest requiring any

particular procedures. S ee Sandin

, 515 U.S. at 482. It is undisputed that Phillips has had at least two3 The district court noted that Phillips’ classification was reviewed in 1996 after he filed suit and

after he received another rules violation. This is based on a statement by counsel for the defendants

at the Spears hearing. However, no evidence of a 1996 rules violation, disciplinary hearing, or

classification committee report is contained in the record. We therefore do not factor this violation

into our analysis.

4 See footnote 3.

9 classification review hearings during his confinement on Unit 32. 3 We therefore AFFIRM this part

of the district court’s opinion.

C

However, Phillips alleged more; he alleged that he has been on close confinement for now five

and a half years with two review hearings, both of which he alleged was tainted by improper influence

upon the classification committee. 4 He argues that his continuous incarceration on close confinement

without meaningful periodic review is atypical and exposes him to significant hardship in relation to

ordinary incidents of prison life. The essence of Phillips’ argument is that the reviews were not

meaningful or impartial because the result was dictated by the Administration, and was not made by

an impartial classification committee.

The district court made a factual finding that Phillips had been afforded periodic classification

reviews by impartial committees and that “it was not improper for security and administration to voice

its concerns about the possible reclassification of a particular inmate.” However, Phillips alleged that

the Administration mandated, rather than suggested, that the classification of prisoners disciplined

for their participation in the money-order scam not be changed. Phillips submitted evidence which

supported this allegation, inter alia : (1) a letter from defendant Earl Jackson indicating the

Administration “informed” defendant Christopher Epps that all prisoners classified on close

confinement due to money order fraud or involvement remain there; (2) a second step response form

signed by Edward M. Hargett indicating “it is felt by the Administration that all offenders held on the

money order status should remain on this status.” The district court’s factual finding that Phillips had

been afforded impartial reviews is not supported by the evidence presented at the Spears hearing and5 While unpublished opinions issued after January 1, 1996 have no precedential value, see 5 T H

C IR

. R. 47.5.4, we cannot help but notice that this court recently addressed whether an eight-month

term on close confinement, allegedly without meaningful periodic reviews, violated due process.

McDonald v. Lee

, No. 96-60073, slip op. at *5 (5th Cir. Jun. 24, 1996) (unpublished). The court

found no protectible liberty interest, noting that the inmate was placed in administrative segregation

“based on his past disciplinary record, rather than as a form of punishment.” I d

. “Limit ing an

inmat e’s freedom inside a prison to protect the prisoners from each other does not amount to

discipline or punishment which would give rise to Constitutional due process concerns.” I d

. (citation

omitted). M cDonald is distinguishable on this basis from the insta nt case; Phillips was originally

placed on close confinement as punishment for violating a prison rule.

10 ignores Phillips’ well-pleaded factual allegations which are supported by evidence. Thus, the district

court clearly erred in its factual determination that Phillips’ claim that he was denied impartial review

of his classification was frivolous.

The district court also erred when it found that Phillips’ complaint lacked an arguable basis

in law. Phillips claims that he has a liberty interest in impartial periodic review of his almost five-year

classifi cat io n o n close confinement as punishment for a rules violation. We have never before

confronted this precise question, and do not consider his claim to be premised upon an "indisputably

meritless legal theory." See McCormick v. Stalder , 105 F.3d at 1061.

Admittedly, “[a]dministrative segregation, without more, does not constitute a deprivation

of a constitutionally cognizable liberty interest.” L uken v. Scott

, 71 F.3d 192, 193 (5th Cir. 1995),

cert. denied

, 116 S. Ct. 1690 (1996); see also Pichardo v. Kinker , 73 F.3d 612, 613 (5th Cir.

1996)(absent extraordinary circumstances, continued confinement in administrative segregation does

not violate the Due Process Clause). Moreover, we have stated in dicta that “it is difficult to see that

any other deprivations in the prison context, short of those that clearly impinge on the duration of

confinement, will henceforth qualify for constitutional `liberty’ status” and that “[i]t is unlikely

. . .

that administra t ive segregation can give rise to any constitutional claim after Sandin .” O rellana v.

Kyle , 65 F.3d 29, 31-32 & n.2 (5th Cir. 1995).

However, we have not expressly determined whether long-term disciplinary a d ministrative

segregation without impartial periodic review could rise to the level of a constitutionally protected

liberty interest in light of Sandin

. 5 S andin involved only a 30-day period of disciplinary segregation6 Our disposition of this appeal should not be mistakenly construed as passing on the validity of

Phillips’ legal or factual claims. Rather, our decision is limited to the issue of frivolousness.

7 Relying on Stewa rt v. Thigpen , 730 F.2d 1002, 1005 (5th Cir. 1982), Phillips argues that

members of the disciplinary committee sho uld not sit as members of the classification committee

because the latter reviews the decision of the former. Id. This is not the holding of , or even dicta

in, Stewart

. In S tewart

, this court merely noted that, pursuant to Section 47-5-104 of the Mississippi

Code, the classification committee reviews decisions of the discipl inary co mmittee which have

subjected an inmate-offender to demotion or loss of earned time. 750 F.2d at 1005.

11 versus Phillips’ now almost five years on close confinement. S ee 515 U. S. at 475-76. In both

Pichardo and Luken

, this court noted that the inmates placed in administrative segregation had

periodic reviews of their classifications every 90 days. S ee Pichardo

, 73 F.3d at 613; Luken

, 71 F.3d

at 194. Additionally, unlike Phillips, t ho se inmates did not challenge the partiality of the review

committee.

This court has not fully addressed long-term confinement on close custody without impartial

periodic reviews. In light of S andin

, Phillips alleged an arguable claim that he has a protected liberty

interest in impartial periodic reviews of his almost five-year classification and/or custody status on

close confinement for a disciplinary violation. We therefore VACATE the district court’s decision

to dismiss this aspect of Plaintiff’s case. 6

D

Finally, Phillips argues that the district court erred in finding that this court had approved of

the practice of the disciplinary committee serving as the classification committee. Phillips argues that

in Gates v. Collier

, 454 F. Supp. 579 (N. D. Miss. 1978), the di stri ct court recogni zed that the

disciplinary committee should not be influenced by the classification officer. 7

The district court held that Phillips was entitled to no relief on his claim that the disciplinary

committee also sat as the classification committee because “[t]hat practice was adopted by this court

in Gates and affirmed by the appeals court.” The district court did not provide a citation to the G ates

decision to which it was referring. This failure is significant in this case because the line of G ates v.

Collier ca ses is lengthy, extending as far back as at least 1972. In the case cited by Phillips, the12

district court questioned the practi ce of allowing an officer who classified the inmate’s offense as

major, serious, or minor, to also serve as either the disciplinary hearing officer or as a member of the

disciplinary committee. 454 F.Supp. at 585. The district court did not, in that case, approve of or

address the practice of allowing members of the disciplinary committee, who suggested a change in

an inmate’s classification, to also serve on the subsequent classification committee. Therefore, we

REMAND to the district court for a clarification of its decision regarding this issue.

C ONCLUSION

For the reasons set forth above, we AFFIRM the district court’s decision to dismiss Phillips’

complaint to the extent it claimed a constitutionally cognizable liberty interest in his class ification

status and in annual

reviews of that status, VACATE the district court’s factual findings as to

impartial reviews and its decision to dismiss Phillips’ complaint to the extent it claimed a

constitutionally cognizable liberty interest in impartial periodic review of his long-term disciplinary

administrative segregation, and REMAND the district court’s decision to dismiss Phillips’ complaint

to the extent that it claimed a constitutionally cognizable liberty interest in not having members of the

disciplinary committee also sit on the classification committee. We direct that further proceedings

in this matter be conducted after all defendants have been served with a copy of the complaint.