UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20079

Summary Calendar

CHRISTOPHER J. MURPHY,

Plaintiff-Appellant,

versus

J.A. COLLINS, Director, Texas

Department of Criminal Justice,

Institutional Division, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

(July 6, 1994)

Before POLITZ, Chief Judge, JOLLY and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Christopher J. Murphy, proceeding pro se and in forma

pauperis, appeals the dismissal of his 42 U.S.C. § 1983 complaint

as frivolous under 28 U.S.C. § 1915(d). We affirm.

Background

An inmate of the Texas Department of Criminal Justice, Murphy

filed a section 1983 complaint against various prison officials,

alleging violations of his constitutional rights in incidents
2

occurring on April 8, 1993 and during disciplinary proceedings

which followed. Murphy claims that on the morning of April 8,

Officer Beers intentionally poured hot coffee on his hand, causing

him to drop his coffee cup and to splatter coffee on Beers. When

Murphy asked to speak to Beers' supervisor, Beers allegedly

replied, "If you bitch on me, I'll lie on you first." Murphy

contends that Beers then fabricated a story to Sergeant Llewellyn,

who ordered Officers Beers and Wheeler to strip search Murphy,

handcuff him in the showers, and search his cell. During the

search, which Murphy claims was pretextual, the officers seized

Murphy's dictionary and his cup and bowl. Officer Wheeler also

claimed to have found in the cell a sharpened cotter key capable of

causing bodily injury.

Two disciplinary proceedings followed. The first, brought by

Officer Beers, charged Murphy with assault. Murphy received notice

of the charge and presented two inmate witnesses at his hearing.

A third inmate witness, A. Campbell, was not allowed to testify.

Unit Disciplinary Officer Horton found Murphy guilty and sentenced

him to six additional months in the lowest custody classification.

The second disciplinary proceeding was brought by Officer

Wheeler and charged Murphy with possession of a dangerous weapon.

At the conclusion of the hearing, held on the same day as the

assault hearing, Murphy was found guilty, divested of 110 days of

good time, and placed on commissary and cell restriction for 15

days. Murphy sought administrative review of the two disciplinary

actions through the TDCJ grievance procedures. His appeals were
 

1Murphy's claim that Officer Beers purposely spilled the

coffee to inflict pain was not raised in his brief on appeal and is

therefore deemed abandoned. Beasley v. McCotter, 798 F.2d 116 (5th

Cir. 1986), cert. denied, 479 U.S. 1039 (1987).

 

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

 

3Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

3

denied by Deputy Director Collins.

In his section 1983 action Murphy challenges the exclusion of

witness Campbell from the assault hearing and the sufficiency of

the evidence in the weapons hearing; he also charges that the

prison officials disregarded the prison policy requiring a review

of all prisoner property confiscations.1 The district court

dismissed Murphy's complaint as frivolous under 29 U.S.C. § 1915(d)

and imposed a $50 sanction for a frivolous complaint. The court

also ordered the clerk to refuse to accept for filing any

section 1983 civil rights suit submitted by Murphy unless a

district or magistrate judge authorized it first. Murphy timely

appealed.

Analysis

Murphy contends that his civil rights complaint was improperly

dismissed as frivolous because his claims had "some chance of

success." While it is true that complaints which present even a

slight chance of success should not be dismissed under

section 1915(d),2 the statute accords trial judges the authority to

dimiss complaints which "lack an arguable basis in law or fact."3

Reviewing the district court's section 1915(d) dismissal for abuse
 

4Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992).

 

5Such punishment triggers the higher standard of due process

enunciated in Wolff v. McDonnell, 418 U.S. 539 (1974).

 

6See Ponte v. Real, 471 U.S. 491 (1985) (refining the

heightened standard of Wolff by requiring prison officials to

account for their decision to exclude requested witnesses either on

the administrative record or by later presenting testimony in

court).

 

7459 U.S. 460 (1983). The district court therefore erred in

applying the Wolff standard to Murphy's claim.

 

8Id. at 476.

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of discretion,4 we conclude that Murphy's complaint was properly

dismissed.

Murphy's first point of error concerns the exclusion of inmate

witness Campbell from the assault proceeding. Had Murphy been

penalized by solitary confinement or loss of good time credit as a

result of this charge,5 due process would require an explanation

for the exclusion.6 Because Murphy was sentenced to additional

time in his present custody level, however, he was only entitled to

the process due under the teachings of Hewitt v. Helms.

7 According

to this standard, Murphy deserved "some notice of the charge

against him and an opportunity to present his views to . . . prison

official[s]."8 This Murphy received; he has no ground for

complaint.

Murphy next complains that the search of his cell was

pretextual, retaliatory, and intended to harass. He alleges that

the weapons charge was fabricated to punish him for complaining to

Beers' supervisor and that his dictionary was taken to thwart his

redress in the courts. Murphy raised neither the retaliation claim
 

9Walker v. Navarro County Jail, 4 F.3d 410 (5th Cir. 1993);

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

 

10See supra note 9 and accompanying text (claims raised for the

first time on appeal are procedurally barred).

 

11See supra note 1 (claims not renewed on appeal are deemed

abandoned).

 

12Murphy's dictionary was later destroyed as contraband.

 

13Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989) (quoting

Brown v. Texas A&M University, 804 F.2d 327, 335 (5th Cir. 1986).

 

14468 U.S. 517 (1984).

 

15Id.; see also Collins v. King, 743 F.2d 248 (5th Cir. 1984).

5

nor the redress claim in his complaint to the district court and is

therefore foreclosed from raising them for the first time on

appeal.9 To the extent that he alleged pretext and fabrication in

the court below, he did so in the context of an insufficiency

argument. Nowhere did he seek relief on that basis,10 and that

which he did seek -- reversal on grounds of insufficiency -- was

not raised again on appeal.11 Murphy's complaints, therefore, were

dismissed properly.

Murphy next claims that his property was confiscated without

regard to the prison policy requiring notice and an opportunity to

be heard.12 A state's failure to follow its own procedural

regulations does not constitute a violation of due process,

however, if "constitutional minima [have] nevertheless . . . been

met."13 In Hudson v. Palmer,

14 the Supreme Court held that

deprivations of property caused by the misconduct of state

officials do not infringe constitutional due process provided

adequate state post-deprivation remedies exist.15 In Texas, as in
 

16See, e.g., Marshall v. Norwood, 741 F.2d 761 (5th Cir. 1984).

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many other states, the tort of conversion fulfills this

requirement. Accordingly, Murphy's claim based on the confiscation

of his property is not actionable under section 1983.16

Murphy's final challenge is to the sanctions imposed by the

district court. We are not persuaded. Murphy has filed 15 civil

rights complaints to date, most of which have been dismissed for

failure to prosecute or as frivolous. Murphy is abusing the

judicial process by such filings and is delaying the consideration

of meritorious claims. The monetary sanction is AFFIRMED. The

sanction against the filing of future civil rights suits without

the prior consent of a district or magistrate judge of the Southern

District of Texas is also AFFIRMED.