The opinion
Case: 18-20522 Document: 00514983065 Page: 1 Date Filed: 06/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20522 June 4, 2019
Summary Calendar
Lyle W. Cayce
Clerk
EDDIE LEWIS CARTER,
Plaintiff-Appellant
v.
LIEUTENANT BROWN; WARDEN GORDY; B. BARNETT; ERICK GALEAS,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-3089
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Eddie Lewis Carter, Texas prisoner # 443810, filed a complaint under 42
U.S.C. § 1983 for alleged constitutional violations arising out of a disciplinary
hearing. Carter contends that Correctional Officer Erick Galeas disliked him
because he was Muslim. Carter alleges that Officer Galeas filed a false
disciplinary charge against him for being “out of place” without authorization
and presented false evidence against him at the ensuing disciplinary hearing.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-20522
Carter further alleges that Lieutenant Brown conspired with Officer Galeas to
violate procedural rules at the hearing and that Lieutenant Brown wrongly
found him guilty of the disciplinary infraction. Carter also contends that
Grievance Officer Barnett inadequately investigated the incident and that
Warden Gordy did not reverse the invalid conviction.
The district court dismissed Carter’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) for failure to state a claim. We review a dismissal for failure to
state a claim de novo and apply the standard used to review a dismissal under
Federal Rule of Civil Procedure 12(b)(6). Samford v. Dretke, 562 F.3d 674, 678
(5th Cir. 2009).
Carter argues that he was falsely charged and convicted at a hearing
that violated established procedures, relied on false evidence, and resulted in
the imposition of cruel and unusual punishment. As punishment for his
disciplinary infraction, Lieutenant Brown curtailed Carter’s commissary and
recreation privileges, imposed bunk restrictions, and issued Carter a
reprimand. Because Carter’s punishment does not implicate a protected
liberty interest, he has not alleged a due process violation. See Sandin v.
Conner, 515 U.S. 472, 483-84 (1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th
Cir. 2000); Madison v. Parker, 104 F.3d 765, 767-80 (5th Cir. 1997). To the
extent that the punishment could affect his future ability to earn good-time
credits, he has no protected liberty interest in the speculative and collateral
consequences of the ruling. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
And his claim that the punishment was cruel and unusual is unavailing
because he does not allege that the punishment was disproportionate to the
alleged disciplinary offense or that he was deprived of the minimal measure of
life’s necessities. Wilson v. Lynaugh, 878 F.2d 846, 848-49 (5th Cir. 1989).
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Carter further contends that Officer Galeas and Lieutenant Brown
conspired to convict him of false charges. However, his conclusory allegations
do not state a cognizable conspiracy claim. See Rodriguez v. Neeley, 169 F.3d
220, 222 (5th Cir. 1999); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).
Carter also argues that the defendants sought to satisfy a quota system. But
he did not present this argument to the district court and cannot raise it for
the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999). In any event, Carter has not identified a policy or custom
or alleged how any such policy or custom allowed or encouraged a
constitutional violation. See Oliver v. Scott, 276 F.3d 736, 742-43 (5th Cir.
2002).
Carter also alleges that Warden Gordy did not properly review the
procedures used at the disciplinary hearing or the propriety of the conviction.
However, because Carter has no constitutional right to have his claims decided
in his favor or reviewed pursuant to a process that is responsive to his alleged
wrongs, he has not raised a claim under § 1983. See Geiger v. Jowers, 404 F.3d
371, 373-74 (5th Cir. 2005). Carter has not asserted any claim as to Grievance
Officer Barnett and, accordingly, has waived any appellate argument. See
Brinkmann v. Dall. Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
To the extent that Carter seeks to argue that he was falsely charged and
convicted because he is Muslim, he has failed to assert a violation of the Equal
Protection Clause. He has not identified any similarly situated prisoners who
were treated differently or identified facts reflecting that the defendants were
intentionally discriminatory. See Muhammad v. Lynaugh, 966 F.2d 901, 903
(5th Cir. 1992).
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The district court’s dismissal of Carter’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996), abrogated in part on other grounds by Coleman v.
Tollefson, 135 S. Ct. 1759, 1762-63 (2015). Carter is cautioned that if he
accumulates three strikes, he will not be able to proceed in forma pauperis in
any civil action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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