The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-30349
Summary Calendar
_____________________
KEVIN PETERSON,
Plaintiff - Appellant,
versus
MYRTLE HARDWELL; BRENDA SMILEY; CHERYL WILEY; MICHAEL TRENT,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(00-CV-1360)
November 5, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Louisiana inmate Kevin Peterson, proceeding pro se and in
forma pauperis, claims, under 42 U.S.C. § 1983, that Appellees
violated his First, Eighth, and Fourteenth Amendment rights in
charging and convicting him under Louisiana Department of
Corrections Rule 3 for threatening legal redress against prison
employees2.
1
Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
2
Rule 3 (La. Admin. Code tit. 22, pt. I, § 365(D)) provided in
pertinent part: “No inmate shall threaten an employee in any
Peterson appeals the district court’s: denial of his motion
for summary judgment; grant of appellees’ motion for summary
judgment; and dismissal with prejudice. We review a summary
judgment ruling de novo. Smith v. Brenoettsy, 158 F.3d 908, 911
(5th Cir. 1998); Lynch Props. v. Potomac Ins. Co., 140 F.3d 622,
625 (5th Cir. 1998).
Peterson contends Appellees violated his First Amendment
rights by punishing him for threatening prison employees with legal
redress. He relies on Clarke v. Stalder, 121 F.3d 222, 228-31 (5th
Cir. 1997), vacated and reh’g granted, 133 F.3d 940 (5th Cir.
1997), reinstated in part, 154 F.3d 186 (5th Cir. 1998) (en banc),
cert. denied, 525 U.S. 1151 (1999). Although the panel in Clarke
held unconstitutional, under the First Amendment, that portion of
Rule 3 making an inmate’s threat of legal redress a punishable act
of defiance, our court reheard the case en banc. While we
reinstated portions of the panel opinion, we did not reinstate its
First Amendment analysis and, in fact, “express[ed] no opinion as
to the constitutionality of the ‘no threats of legal redress’
portion of Rule 3.” Clarke, 154 F.3d at 191.
manner, including threatening with legal redress during a
confrontation situation....”
In the light of a proposed amendment to the rule — which
eventually eliminated the prohibition on threats of legal redress,
see 26:11 La. Reg. 2623 (2000) — Peterson’s convictions were
reversed on appeal. Consequently, his disciplinary reports were
expunged; he was placed back in the general population; and his
good time credits were reinstated.
2
Accordingly, at the time Peterson was charged and convicted:
(1) that portion of the panel opinion holding the Rule 3 provision
unconstitutional had been vacated; and (2) the Supreme Court had
already denied certiorari. Moreover, one of the three judges on
the panel had determined the Rule 3 provision was not facially
unconstitutional. Clark, 121 F.3d at 233 (Garza, Emilio M., J.,
dissenting). In this light, we cannot conclude it was “clearly
established” that inmates had a constitutional right to threaten
redress against prison employees.3 See Hare v. City of Corinth,
135 F.3d 320, 325 (5th Cir. 1998) (setting forth qualified immunity
test). Accordingly, the district court did not err in concluding
appellees were entitled to qualified immunity against the First
Amendment claim.
Additionally, Peterson contends appellees violated his
Fourteenth Amendment due process rights by omitting an element in
his charged offense. Specifically, he cites Wolff v. McDonnell,
418 U.S. 539 (1974), for the proposition that he had a state-
created, due process right to a fair and impartial hearing by the
Disciplinary Board. However, while Wolff recognized a state-
created liberty interest in a “shortened prison sentence” resulting
from good time credits, and while Wolff consequently articulated
3
“[A] right is clearly established if its ‘contours ... [are]
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Shipp v. McMahon, 234 F.3d
907, 915 (5th Cir. 2000), cert. denied, 121 S. Ct. 2193 (2001).
3
minimum process due in the revocation of those credits, id. at 556-
58, the Supreme Court held in Sandin v. Conner, 515 U.S. 472
(1995), that mere “discipline in segregated confinement [does] not
present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest”.4 Id. at 486.
Accordingly, this due process claim fails.
To the extent — if at all — Peterson’s brief can be construed
to assert a substantive due process Eighth Amendment violation (he
makes a few fleeting references to the Eighth Amendment in his
brief), he has alleged no condition of his brief segregation that
would suggest it was either cruel or unusual.
AFFIRMED
4
Peterson is not asserting due process violations in
connection with lost good time credits. As noted, they were
restored.
4