Case: 21-30082 Document: 00516853103 Page: 1 Date Filed: 08/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 21-30082 August 10, 2023
____________ Lyle W. Cayce
Clerk
Ricardo Carmouche,
Plaintiff—Appellant,
versus
Timothy Hooper, Warden, Elayn Hunt Correctional Center; Todd
Barrere, Assistant Warden, Elayn Hunt Correctional Center; Reginald
Brock, Assistant Warden, Elayn Hunt Correctional Center; Eric
Hinyard, Assistant Warden, Elayn Hunt Correctional Center; S.
Robinson, Lieutenant Colonel, Elayn Hunt Correctional Center,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:20-CV-478
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
Dana M. Douglas, Circuit Judge:
Ricardo Carmouche, a Louisiana prisoner, appeals the district court’s
dismissal of his § 1983 complaint with prejudice as frivolous and for failure
to state a claim under 28 U.S.C. § 1915. Finding the dismissal to be in error,
we VACATE and REMAND for proceedings consistent with this opinion.
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No. 21-30082
I.
Carmouche filed a letter indicating his intent to file a § 1983 suit and
enclosing an initial filing fee. The letter was docketed as a complaint. After
receiving a deficiency of pleading notice, Carmouche filed his complaint,
which the district court docketed as an “amended complaint,” clarifying that
he was filing suit against five prison officials and alleging violations of his
Eighth and Fourteenth Amendment rights. Specifically, Carmouche alleged
that he was held in administrative segregation for 300 days over his 30-day
disciplinary sentence without additional due process, such as new
disciplinary hearings or periodic review of his custody status. He also alleged
that his disciplinary conviction was based upon fabricated information. He
sought monetary damages and injunctive relief.
Carmouche filed two motions to amend his complaint. In his first
motion, Carmouche requested leave to amend, inter alia, to clarify that he
was filing suit against the defendants in their official and individual capacities,
to reiterate and reframe his equal protection claims, to expressly invoke the
Fourteenth Amendment for his due process claims, and to rephrase facts and
claims alleged in the original complaint. In his second motion to amend,
Carmouche sought leave to explain “the Constitutional violations that have
taken place since the preparation and filing of this civil action,” such as
defendants violating his First Amendment rights by censoring his mail.
The magistrate judge reviewed Carmouche’s suit under 28 U.S.C.
§§ 1915(e) and 1915A and issued a Report and Recommendation
recommending that Carmouche’s federal claims be dismissed with prejudice
as legally frivolous and for failure to state a claim. The magistrate judge
reasoned that Carmouche failed to state a procedural due process claim
because his administrative segregation of approximately 16 months was too
short in duration to implicate a liberty interest. Additionally, the magistrate
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judge held that Carmouche failed to state an equal protection claim because
he did not sufficiently allege that persons similarly situated were treated
differently without a rational basis. Finally, Carmouche’s Eighth
Amendment claim failed because the conditions alleged were “a far cry from
depriving [him] of the minimal civilized measure of life’s necessities.”
The magistrate judge also recommended that Carmouche’s motions
for leave to file amended complaints be denied as futile. As to Carmouche’s
first motion to amend, the magistrate judge indicated that the equal
protection claim failed as a matter of law and that no additional facts alleged
gave rise to claims of a constitutional dimension. Regarding the second
motion to amend, the magistrate judge stated that Carmouche’s First
Amendment mail interference claim was subject to dismissal as unexhausted
pursuant to 42 U.S.C. § 1997.
The district court reviewed and adopted the magistrate judge’s
report, dismissing Carmouche’s § 1983 suit with prejudice as frivolous and
for failure to state a claim. Carmouche timely filed a notice of appeal.
II.
We review dismissals as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i)
for abuse of discretion. Boyd v. Biggers,
31 F.3d 279, 282 (5th Cir. 1994). We
review de novo dismissals for failure to state a claim on which relief may be
granted pursuant to § 1915(e)(2)(B)(ii). Stokes v. Gann,
498 F.3d 483, 484
(5th Cir. 2007). A district court may dismiss as frivolous the complaint of a
prisoner proceeding in forma pauperis if it lacks “an arguable basis in law or
fact.” Denton v. Hernandez,
504 U.S. 25, 31-32 (1992); McDonald v. Johnson,
139 F.3d 1056, 1060 (5th Cir. 1998). A complaint fails to state a claim under
§ 1915(e)(2)(B)(ii) when it lacks sufficient factual matter, accepted as true,
to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556
U.S. 662, 678 (2009).
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III.
A.
We begin with Carmouche’s first point of error — the district court’s
dismissal of his procedural due process claims. Carmouche argues that he
has alleged sufficient facts to state a constitutional claim. He argues that he
spent over 300 days past his 30-day disciplinary sentence in administrative
segregation under atypical prison conditions. He claims the district court
failed to make the appropriate inquiry pursuant to Sandin v. Conner, 515 U.S.
472 (1995), considering whether the length and conditions of confinement
give rise to a liberty interest.
To invoke the procedural protections of the Fourteenth
Amendment’s Due Process Clause, a § 1983 complainant must first show a
protected liberty interest is at stake. Wilkerson v. Goodwin, 774 F.3d 845, 851
(5th Cir. 2014). The types of interests that qualify are limited. Ky. Dep’t of
Corrs. v. Thompson,
490 U.S. 454, 460 (1989). In the context of disciplinary
convictions and any resulting confinement in administrative segregation,
such interests are generally limited to restrictions that lengthen the
prisoner’s sentence and restraints imposing “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.”
Wilkerson,
774 F.3d at 852 (internal quotation and citation omitted); see
Bailey v. Fisher,
647 F. App’x 472, 476 (5th Cir. 2016). Once a liberty interest
is established, courts consider “whether the procedures attendant upon that
deprivation were constitutionally sufficient.” Thompson,
490 U.S. at 460.
Generally, “administrative segregation, without more, does not constitute a
deprivation of a constitutionally cognizable liberty interest.” Luken v. Scott,
71 F.3d 192, 193 (5th Cir. 1995). We consider the severity of the restrictive
conditions and their duration when deciding whether a prisoner has a liberty
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interest in his custodial classification. Sandin, 515 U.S. at 486; Wilkerson,
774
F.3d at 855; Bailey,
647 F. App’x at 476-77.
The district court relied heavily on Wilkerson v. Goodwin in dismissing
Carmouche’s procedural due process claim. According to the magistrate
judge, this court in Wilkerson “suggested that ‘two and a half years of
segregation is a threshold of sorts for atypicality.’” However, Wilkerson
concerned a solitary confinement of nearly 39 years. See Wilkerson, 774 F.3d
at 848. The two-and-a-half-year threshold was cited only in dicta as an outof-circuit example of a time period that a federal court had concluded was
insufficient to trigger a constitutionally protected liberty interest.1
Id. at 855
(citing Jones v. Baker,
155 F.3d 810, 812-13 (6th Cir. 1998)). In now holding
that no such threshold exists, we align with the Supreme Court and our own
precedent. District courts should apply a nuanced analysis looking at the
length and conditions of confinement on a case-by-case basis to determine
whether they give rise to a liberty interest — not the application of a 30-
month threshold. See, e.g., Sandin,
515 U.S. at 484-85 (considering whether
segregated conditions present a “dramatic departure” from “the ordinary
incidents of prison life”); Wilkerson,
774 F.3d at 855-56 (explaining that an
“‘extraordinary duration’ diluted the materiality of. . . less severe
confinement conditions”).
In failing to apply the appropriate, multi-faceted legal test considering
the conditions and length of confinement, the district court erred.
Accordingly, in dismissing the appeal as frivolous, the district court abused
_____________________
1
To the extent that Bailey v. Fisher, an unpublished decision, suggests that this
court has established a two-and-a-half-year threshold for atypicality, we hold that no such
threshold exists. Bailey states: “The Fifth Circuit recently suggested that two and a half
years of segregation is a threshold of sorts for atypicality.” 647 F. App’x at 476. However,
the panel there remanded for further factual finding to properly conduct a Sandin analysis,
as we do here. See
id. at 477.
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its discretion. Further, because the district court did not apply the correct
test, we reserve review of whether Carmouche fails to state a claim for the
district court to resolve in the first instance.
B.
This brings us to the second point of error — the denial of
Carmouche’s motions to amend his complaint. “A district court’s denial of
a motion to amend the pleadings is reviewed for abuse of discretion.”
Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017).
At the outset, we note that the district court erred in docketing
Carmouche’s initial filing as a complaint. The letter docketed as a complaint
states the following in full:
Enclosed is an advance court’s filing fee in the full amount of
$120.00. This fee is for civil litigation under 42 U.S.C. § 1983
that I’ll be submitting to the court in the near future. Please
post this fee to my account, and send me some type of receipt
of this posting so it can be attached to the civil litigation I’ll be
submitting as proof that the court’s filing fee has been prepaid.
Though pro se complaints are to be construed liberally, Johnson v. Atkins, 999
F.2d 99, 100 (5th Cir. 1993), even given the most liberal construction, this
letter cannot be read as a complaint. It includes no “short and plain
statement of [Carmouche’s] complaint,” a requirement of pro se complaints
in our circuit. See Schultea v. Wood,
47 F.3d 1427, 1433 (5th Cir. 1995) (en
banc). Moreover, even liberally construed, it does not include a statement of
jurisdiction, statement of the claim, or demand for relief. See Fed. R. Civ.
P. 8(a); Erickson v. Pardus,
551 U.S. 89, 93-94 (2007) (finding a pro se litigant
satisfies Rule 8(a) where he provides a “short and plain statement of the
claim showing that the pleader is entitled to relief”); see also Johnson v. East
Baton Rouge Fed’n of Teachers,
706 F. App’x 169, 171 (5th Cir. 2017) (noting
that pro se complaints “are still required to comply with Rule 8(a)(2)”).
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Finally, we find it significant that Carmouche indicates repeatedly that
his intent was never for this letter to operate as a complaint.2 Liberal
construction is afforded to pro se litigants to serve as a shield, in line with the
“congressional goal of assuring equality of consideration for all litigants”
behind the federal in forma pauperis statute. Denton, 504 U.S. at 32 (cleaned
up). When it is utilized as a sword, as in this case, it impermissibly denies
access to federal courts.
Significantly, because the filing construed as Carmouche’s amended
complaint should have been labeled his initial complaint, he did not need
leave of court to amend it once thereafter. See Fed. R. Civ. P. 15(a)(1).
Here, Carmouche should have been given leave to amend and the district
court abused its discretion.
Under Federal Rule of Civil Procedure 15(a), a party may amend his
pleading once as a matter of course and thereafter with leave of court, which
should be freely given in the interest of justice. Fed. R. Civ. P. 15(a); see
Anokwuru v. City of Houston, 990 F.3d 956, 966 (5th Cir. 2021). Additionally,
before sua sponte dismissing a pro se litigant’s case with prejudice, a district
court ordinarily must provide an opportunity to amend the complaint to
remedy the deficiencies. Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir.
1998); Eason v. Thaler,
14 F.3d 8, 9 (5th Cir. 1994). The primary means that
have evolved for remedying inadequacies in a prisoner’s pleadings are a
Spears hearing or a questionnaire that permits the prisoner to bring into focus
the factual and legal bases of his claims. Eason,
14 F.3d at 9. These and other
_____________________
2
In fact, attached to Carmouche’s “amended complaint,” he includes a letter to
the “clerk/pro se staff attorney” requesting that they “un-file my pleadings in [the instant
action] because I did not file them!” He notes that had he not received a deficiency notice,
he “wouldn’t have known that anything was filed” in his case. He asks that the clerk use
“some or all of the 120 dollars to [un-file the pleading] and not penalize me so when I’m
ready to submit my full complaint I can do so without any problems.”
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means have been utilized by district courts to elicit facts when reviewing
similar claims raised by prisoners. See, e.g., Pichardo v. Kinker, 73 F.3d 612,
613 (5th Cir. 1996) (utilizing Spears hearing); Bailey,
647 F. App’x at 473-74
(utilizing Spears hearing); Luken,
71 F.3d at 193 (utilizing order for a more
definite statement of facts).
Carmouche should have been granted leave as a matter of course
because his complaint was improperly docketed, but we further find that
under this record, leave to amend should have been granted to garner further
factual allegations from Carmouche before denying his complaint with
prejudice.3 We cannot decide, at this stage, with no input from defendants
who have yet to be served, whether Carmouche will be successful in his
claims.4 We observe, however, that in Carmouche’s pleadings, he indicates
that he is being held indefinitely without justification. Yet, it is impossible to
conduct a proper Sandin analysis with the record before us.
It is unclear from the record whether his administrative segregation
impacts his release date. See Wilkinson, 545 U.S. at 224 (fact that placement
in Ohio’s Supermax facility “disqualifies an otherwise eligible inmate for
parole consideration” is one of two components distinguishing it from “most
solitary confinement facilities”); Bailey, 647 F. App’x at 475-76 (noting that
“[c]ourts are particularly concerned when solitary confinement triggers such
repercussions”). Further, the record lacks relevant facts about the
conditions of Carmouche’s confinement, and some of the allegations
_____________________
3
Although leave to amend is not required if the plaintiff has already pleaded his
“best case,” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998), there is no indication
that Carmouche has done so, as he includes additional allegations in each of his subsequent
motions to amend.
4
Carmouche has not raised his Fourteenth Amendment Equal Protection or
Eighth Amendment claims in his brief to this court, so we do not address them. However,
in granting leave to amend, these claims are revived for reconsideration in the first instance.
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included raise concerns but were given short shrift in the Report and
Recommendations, including the ten minutes per month of telephone use at
the David Wade Correctional Center, where Carmouche was transferred for
a 90-day extended lockdown after the completion of his 30-day sentence. See
Bailey, 647 F. App’x at 475 (noting that plaintiff confronted “restrictive
conditions,” such as the prohibition or rare usage of the telephone).
It is also unclear from the record if and when Carmouche’s custodial
status is reviewed. See Luken v. Scott, 71 F.3d at 194 (finding no liberty
interest where, inter alia, prisoner’s custodial status was reviewed every
ninety days); Pichardo v. Kinker,
73 F.3d 612, 613 (5th Cir. 1996) (same). This
bears on his liberty interest because it is entirely unclear why Carmouche is
being held in administrative segregation despite a Classification Review
Board form from December 12, 2019, attached as an exhibit to his “amended
complaint,” several months after the completion of his 30-day disciplinary
sentence, indicating he is eligible for reassignment from maximum to
medium security.
Accepting the allegations in the complaint as true, as we must,
Carmouche alleges that his confinement is at the whim of the assistant
wardens, one of which stated, “I’m not ready to let you go from back here
yet,” in response to inquiries about why he was not being released despite
the Classification Review Board indicating he was eligible to do so. While we
have held that “[p]rison officials should be accorded the widest possible
deference” in classifying prisoners’ custodial status to “maintain security
and preserve internal order,” Hernandez v. Velasquez, 522 F.3d 556, 562 (5th
Cir. 2008) (quoting McCord v. Maggio,
910 F.2d 1248, 1251 (5th Cir. 1990)),
this case presents a unique factual scenario in which some prison officials have
determined Carmouche should be released from administrative segregation,
but others refuse to do so. The Supreme Court has held that the “initial
assessment of the in forma pauperis plaintiff’s factual allegations must be
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weighed in favor of the plaintiff.” Denton, 504 U.S. at 32 (quoting Coppedge
v. United States,
369 U.S. 438, 447 (1962)). Further, the screening of
complaints under § 1915 “cannot serve as a factfinding process for the
resolution of disputed facts.” Id. Here, it may be the case that a response
from defendants is necessary to reach the proper conclusion.
Finally, the indefiniteness of a period of segregation is relevant in
reviewing the constitutionality of a length of confinement. See Wilkerson, 774
F.3d at 855 (considering the “effectively indefinite nature” of confinement).
Here, it is unclear from the record whether Carmouche remains in
administrative segregation today. See Bailey,
647 F. App’x at 476 (“[T]he
record is wanting about the actual duration of his confinement under the
alleged conditions and whether it is ongoing.”).
IV.
Accordingly, we VACATE the judgment dismissing Carmouche’s
complaint with prejudice and REMAND the case for further proceedings
consistent with this opinion.
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