James Evans v. Rick Thaler, et al

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UNPUBLISHED OPINION FILED. [10-10023 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 10/15/2010; denying motion to appoint counsel filed by Appellant Mr. James N Evans [6469879-2] [10-10023]

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James Evans v. Rick Thaler, et al Doc. 0 Case: 10-10023 Document: 00511244000 Page: 1 Date Filed: 09/24/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10023 S u m m a r y Calendar September 24, 2010 Lyle W. Cayce Clerk J A M E S NATHANIEL EVANS, also known as James N. Evans, P la in t if f -A p p e lla n t v. R I C K THALER; BRITTANY D. DREES; GLEN A. NAURET; THERESA L. H E N D R IC K S , D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 2:09-CV-267 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* J a m e s Nathaniel Evans appeals the district court's dismissal with p r e ju d ic e of his 42 U.S.C. 1983 complaint as frivolous and for failure to state a claim pursuant to 28 U.S.C. 1915A and 1915(e)(2). He argues that he is e n tit le d to damages because he was subjected to disciplinary proceedings that w e r e conducted in violation of his due process rights and that the finding of guilt w a s not supported by any evidence. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-10023 Document: 00511244000 Page: 2 No. 10-10023 Date Filed: 09/24/2010 A prisoner's protected liberty interests are "generally limited to freedom fr o m restraint which, while not exceeding the sentence in such an unexpected m a n n e r as to give rise to protection by the Due Process Clause of its own force, n o n e t h e le s s imposes atypical and significant hardship on the inmate in relation t o the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1 9 9 5 ) (citations omitted). The penalties imposed on Evans, the loss of c o m m is s a r y privileges and cell restriction, are not atypical punishments and do n o t extend the duration of his confinement. Thus, the disciplinary action did not im p lic a t e due process concerns. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2 0 0 0 ). B e c a u s e there was no protected liberty interest involved in this case, the a m o u n t of evidence presented was not an issue of arguable merit. See S u p e r in te n d e n t , Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455 (1985). In a n y event, the claim was frivolous because the charging officer's report alone w a s sufficient under the "some evidence" standard to support the disciplinary d e c is io n . See Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001). Evans has n o t alleged a claim having constitutional merit. Thus, the district court did not e r r in dismissing the complaint as frivolous and in determining that Evans had fa ile d to state a claim upon which relief could be granted. See Geiger v. Jowers, 4 0 4 F.3d 371, 373 (5th Cir. 2005). E v a n s further contends that the district court abused its discretion in fa ilin g to afford him the opportunity to amend his complaint to state a claim. T h e district court did not abuse its discretion in treating Evans's motion to a m e n d as a Federal Rule of Civil Procedure 59(e) motion and in denying the m o t io n because Evans has not shown that the proposed amendment would not b e frivolous and futile. Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2 0 0 3 ); Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000). 2 Case: 10-10023 Document: 00511244000 Page: 3 No. 10-10023 Date Filed: 09/24/2010 E v a n s 's motion for appointment of counsel is DENIED. See Santana v. C h a n d le r , 961 F.2d 514, 515-16 (5th Cir. 1992); Ulmer v. Chancellor, 691 F.2d 2 0 9 , 213 (5th Cir. 1982). The judgment of the district court is AFFIRMED. 3

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