Pierce v. Scott ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20929
Summary Calendar
ANTHONY L. PIERCE,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Director, Texas Department
of Criminal Justice; BRUCE THALER;
AKBAR SHABAZZ,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CV-3512
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July 25, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
On appeal after remand from this court, Anthony L. Pierce,
Texas prisoner # 587, appeals the grant of summary judgment
dismissing his 42 U.S.C. § 1983 action alleging that the prison
policy requiring him to shave violated the Eighth Amendment
because it caused him medical problems related to his
pseudofolliculitis barbae (PFB). This court reviews the grant of
*
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that this opinion should not be published and is not precedent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.
No. 01-20929
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summary judgment de novo. See Tolson v. Avondale Indus., Inc.,
141 F.3d 604, 608 (5th Cir. 1998).
To prevail on an Eighth Amendment claim of deliberate
indifference, a plaintiff “must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.” See Estelle v. Gamble, 429 U.S. 97, 106
(1976). The record does not support Pierce’s claim that he was
disciplined for refusing to shave when he had a valid shaving
pass. His argument that he should have been issued a permanent
shaving pass represents only his disagreement with the refusal to
issue him a permanent shaving pass, and he has not shown any
exceptional circumstances making this disagreement actionable.
See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Nor
does the record support his contention that his PFB is a serious
medical condition.
While this case was on remand, Pierce asserted a new due
process claim challenging his disciplinary convictions for
violating the prison’s shaving policy. Assuming this claim was
properly presented to the district court, it clearly fails as a
matter of law because Pierce has not alleged the infringement of
a protected liberty interest. Pierce complains only of cell
restrictions and lost commissary privileges, neither of which
implicate due process concerns. Madison v. Parker, 104 F.3d 765,
767-68 (5th Cir. 1998); see Sandin v. Conner, 515 U.S. 472, 485
(1995).
No. 01-20929
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Accordingly, the judgment of the district court is AFFIRMED.
Pierce’s motion to file an out-of-time reply brief is DENIED.