Bannister v. Deville ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30469
Summary Calendar
_____________________
STEVEN BANNISTER,
Plaintiff-Appellant,
versus
RAYBURN DEVILLE, Lieutenant;
DOUGLAS W. ENNIS, Lieutenant;
BURL CAIN, Warden, Louisiana
Penitentiary; RICHARD L. STALDER,
Secretary, Department of Public
Safety & Corrections; KAREN ROSS,
Major,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Middle District of Louisiana
USDC No. 98-CV-68-C
_________________________________________________________________
March 20, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Steven Bannister, Louisiana state prisoner #100917, argues
that the district court erred in granting the defendants’ motion to
dismiss his § 1983 complaint.
Bannister argues that he was deprived of his First Amendment
right to exercise his religion as a result of the defendants’
taking disciplinary action against him because he refused to
*
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this opinion should not be published and is not precedent except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.
voluntarily submit to a haircut. He argues that there was no
prison policy requiring him to do so.
Because the district court considered evidence outside of
Bannister’s pleadings in addressing this claim, the district
court’s ruling must be considered as a grant of summary judgment.
See Balogun v. INS, 9 F.3d 347, 352 (5th Cir, 1993).
The records presented by the defendants established that the
prison had a policy against inmates wearing their hair long because
it presented a security risk and also showed that Bannister was
aware of such policy. A prison grooming policy that prohibits
inmates from wearing long hair has been found to be rationally
related to achieving the penological goal of security and, thus,
constitutional although the policy impinged on an inmate’s First
Amendment right to practice his religion. See Powell v. Estelle,
959 F.2d 22, 26 (5th Cir. 1992). The district court did not err in
granting summary judgment resulting in the dismissal of Bannister’s
First Amendment claim.
Bannister also argues that the defendant Deville made racial
comments and verbal threats against him after Bannister refused to
comply with the order to cut his hair. A complaint of verbal and
discriminatory threats by a prison guard does not state an arguable
constitutional claim. See McFadden v. Lucas, 713 F.2d 143, 146
(5th Cir. 1983). This claim has no arguable merit.
Bannister also argues that he was denied due process during
his disciplinary proceedings because he was not provided with a
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written statement of the disciplinary committee’s ruling in his
case.
Because the district court stated that it was granting the
defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss, this claim
is reviewed under the standards applicable to that rule. A motion
to dismiss is subject to de novo review and should be granted only
when it appears beyond a doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief.
Hall v. Thomas, 190 F.3d 693, 696 (5th Cir. 1999).
Bannister has not alleged that he lost any good-time credits
as a result of the disciplinary action but merely complains that he
was transferred to an extended lockdown facility where he was not
entitled to the privileges enjoyed by the general population.
Bannister’s placement in Camp J did not constitute a
deprivation of a constitutionally cognizable liberty interest that
entitled him to procedural due process during the disciplinary
proceedings. See Sandin v. Conner, 515 U.S. 472, 484-87 (1995).
Thus, the district court did not err in dismissing this claim for
failure to state a claim upon which relief can be granted.
Bannister argues for the first time on appeal that he was
subjected to cruel and unusual punishment in violation of the
Eighth Amendment because he was transferred to an extended lockdown
facility and deprived of the privileges accorded to the general
prison population.
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Because Bannister’s Eighth Amendment claim does not involve a
purely legal issue, it is not subject to review on appeal. See
Varnado v. Lynaugh, 920 F.2d 320-21 (5th Cir. 1991).
Bannister’s motion for the appointment of counsel is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
A F F I R M E D.
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