* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-40117

(Summary Calendar)

_______________

JOSEPH H. WILLIAMS,

Plaintiff-Appellant,

versus

ALFONSO CASTILLO, ET AL.,

Defendants-Appellants.

_______________________________________________

Appeal from the United States District Court

For the Eastern District of Texas

(6:94 CV 569)

_______________________________________________

(August 23, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM: *

Joseph Williams, an inmate of the Texas Department of Criminal

Justice's Institutional Division ("TD CJ-ID"), filed a pro se, in

forma pauperis appeal of the district court's dismissal of his

civil rights suit against prison officials and the Attorney General

of Texas, Dan Morales. We affirm.

I-2-

Joseph Williams contends that prison officials denied him due

process of the law because he was subject to two disciplinary

hearings classified as "major" in violation of TD CJ-ID's

Disciplinary Rules and Procedures for Inmates. Rule I.B.1 states

that in a "major" disciplinary hearing, an inmate faces the

possibility of losing good-time credit or of moving to a lower

time-earning class, risks that an inmate does not run in a "minor"

disciplinary hearing. Rule I.B.3 states that: "The final decision

as to whether a disciplinary hearing will be classified as major or

minor will be made by the officer in charge ( Building Major or

Captain)."

Prison officer Keith Wagnon classified Williams' first

disc iplinary hearing as "major," and prison officer Alfonso

Castillo classified the second as "major." Neither Wagnon nor

Castillo was a bu ilding major or captain at the time. Williams

filed suit against Wagnon and Castillo under 28 U.S.C. § 1983

(1988), and also named as defendants E.W. Smith, the prison

official who presided over both of Williams' disciplinary hearings,

and Dan Morales, the Attorney General for the State of Texas.

Williams alle ged that Wagnon and Castillo's actions amounted to

cruel and unusual punishment that deprived him of due process under

the law, and requested both punitive and compensatory damages. The

district court di smissed Williams' § 1983 claims under 28 U.S.C.

§ 1915(d) (1988), holding (1) that the language of Ru le I.B.3 is

not the type of mandatory language that creates a liberty interest,

and (2) that even if the language did create a liberty interest,1 In his brief on appeal, Willi ams argues that the prison officials

conspired to retaliate against him for having exercised his right to seek redress

from the prison grievance system and the courts. We need not address this claim

because Williams did not raise it in his original complaint, amended complaint,

or Spears hearing, and because it is not a purely legal question. See Varnado

v. Lynaugh , 920 F.2d 320, 321 (5th Cir. 1991) (holding that we will not review

issues raised for the first time on appeal unless the issues concern purely legal

questions and manifest injustice would result from our failure to consider them).

-3- Williams had received due process in his hearings. Williams

appeals, challenging the district court's holding on both grounds. 1

A distr ict court may dismiss an in forma pauperis complaint

"if the action is frivolous or malicious." 28 U.S.C. § 1915(d)

(1988). A suit is frivolous under § 1915(d) if it lacks an

arguable basis in law or fact. Denton v. Hernandez , 504 U.S. 25,

___, 112 S. Ct. 1 728, 1733, 118 L. Ed. 2d 340 (1992). We review

§ 1915(d) dismissals for abuse of discretion. A ncar v. Sara

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

Williams claims that because the language of the prison

regulations at issue is mandatory, the regulations create a liberty

interest in having a buildin g major or captain classify

disciplinary hearings as major or minor. He cites as support the

Supreme Court's decision in Hewitt v. Helms , 459 U.S. 460, 103 S.

Ct. 864, 74 L. Ed. 2d 675 (1983). In its determination of whether

a prison guideline created such an interest, the Court in Hewitt

,

"[i]nstead of looking to whether the State created an interest of

`real substance ,'" such as a loss of good-time credit, "asked

whether the State had gone beyond issuing mere procedural

guidelines and had used `language of an unmistakably mandatory

character.'" Sandin v. Conner , No. 93-1911, 1995 WL 260217 at *4

(U.S. June 19, 1995) (quoting Hewitt

, 459 U.S . at 471-72, 103 S.-4-

Ct. at 871).

However, in a recent case, Sandin v. Conner

, the Supreme Court

criticized its holding in Hewitt , stating that "[b]y shifting the

focus of the liberty interest inquiry to one based on the language

of a particular regulation, and not the nature of the deprivation,

the Court encouraged prisoners to comb regulations in search of

mandatory language on which to base entitlements to v arious

state-conferred privileges." I d. at *5. The Court noted that

"[c]ourts have, in response, and not altogether illogically, drawn

negative inferences from mandatory language in the text of prison

regulations." Id. The Court continued:

Such a conclusion may be entirely sensible in the

ordinary task of construing a statute defining rights and

remedies available to the general public. It is a good

deal less sensible in the case of a prison regulation

primarily designed to guide correctional officials in the

administration of a prison. Not only are such

regulations not designed to confer rights on inmates, but

the result of the negative implication jurisprudence is

not to require the prison off icials to follow the

negative im plication drawn from the regulation, but is

instead to attach procedural protections that may be of

quite a different nature.

Id.

For these and other reasons, see id. at *6, the Court

concluded that "the search for a negative implication from

mandatory language in prisoner regula tions has strayed from the

real concerns undergirding the liberty protected by the Due Process

Clause." I d. While recognizing that states "may under certain

circumstances create liberty interests which are protected by the

Due Process Clause," the Court held that:

[Th]ese interests will be generally limited to free dom2 We construe liberally the briefs of pro se appellants. P rice v.

Digi tal Equip. Corp. , 846 F.2d 1026, 1028 (5th Cir. 1988). However, because

Williams does not mention what punishment he received, if any, as a result of the

second disciplinary hearing, we cannot construe his complaint as containing a due

process claim based on the deprivation he incurred as a result of Castillo's

classifying Williams' second offense as major. See Yohey v. Collins , 985 F.2d

222, 225 (5th Cir. 1993) ("Although we liberally construe the briefs of pro se

appellants, we also require that arguments must be briefed to be preserved."

(quoting Price , 846 F.2d at 1028 (5th Cir. 1988)).

-5- 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. (citations omitted). Thus, under S andin

, Williams' claim that

the prison regulations at issue create liberty interests has no

arguable legal basis because it relies on the allegedly mandatory

nature of the regulations' language rather than the nature of the

deprivation h e incurred as a result of the prison officials'

alleged violation of the regulations.

Even if we were to liberally interpret Williams' complaint as

containing th e argument that Williams was denied due process

because the ultimate result of Wagnon's classifying Williams' first

off ense as major was that Williams' ability to earn good-time

credit was impaired, 2 Williams' claim for relief would still have

no arguable legal basis. Even if the impairment of an inmate's

ability to earn good-time credit is analogous enough to the loss of

good-time cre dit that it imposes an atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life, Williams received the same degree of due process in

his hearing that he would have been entitled to have received had3 An inmate punished with the 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 to the evidence relied

on and the reasons for the disciplinary action taken, and (3) the opportunity to

call witnesses and present documentary evidence in his defense, unless these

procedures would create a security risk in the part icular case." W alker v.

Navarro County Jail

, 4 F.3d 410, 412 (5th Cir. 1993) (citing Wolff v. McDonnell

, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 2978-80, 41 L. Ed. 2d 935 (1974)). The

district court expressly stated that Williams received "all of his due process

rights" under Wolff

, and Williams neither challenges this conclusion nor argues that he did not receive due process under Wolff

.

-6- he lost good-time credit as a direct result of the hearing. 3

III

For the foregoing reasons, we AFFIR M the district court's

§ 1915(d) dismissal of Williams' complaint.