Phillips v. Puckett ( 1996 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 96-60372
___________________________
DESMOND EARL PHILLIPS,
Plaintiff-Appellant,
VERSUS
STEVE PUCKETT, ET AL.,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Mississippi
Greenville Division
(4:96-CV-59-S-B)
____________________________________________________
December 6, 1996
Before WISDOM, DAVIS, and DUHE’, Circuit Judges.
Per Curiam:1
Desmond Phillips appeals the district court’s sua sponte
dismissal under § 1915(d) of his § 1983 complaint filed pro se and
in forma pauperis alleging that following a prison disciplinary
hearing he was placed on close confinement where he has remained
for approximately three years without annual classification
reviews. We VACATE and REMAND for further proceedings consistent
1
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under limited circumstances set forth in Local Rule 47.5.4.
with this opinion.
I.
We review the district court’s Section 1915(d) dismissal of
Phillips' complaint for abuse of discretion. Graves v. Hampton, 1
F.3d 315, 317 (5th Cir. 1993). Section 1915(d) “authorizes federal
courts to dismiss a claim filed in forma pauperis ‘if satisfied
that the action is frivolous or malicious.’” Neitzke v. Williams,
490 U.S. 319, 109 S. Ct. 1827 (1989)(citing 28 U.S.C. § 1915).
Relying on Sandin v. Conner, 515 U.S. ___ , 132 L. Ed. 2d 418,
115 S. Ct. 2293 (1995), the district court dismissed Phillips’
complaint as frivolous. In Sandin, the Supreme Court held that
thirty days disciplinary confinement did “not present the type of
atypical, significant deprivation in which a state might
conceivably create a liberty interest." Sandin, 115 S. Ct. at 2300.
In contrast, Phillips’ allegation that he has been subject to
disciplinary confinement for three years without review arguably
presents an “atypical significant deprivation” that implicates a
liberty interest. Because the argument is not frivolous, we vacate
the district court’s dismissal of the suit and remand for
reconsideration following further factual development.
VACATED AND REMANDED.