Cannon v. Lewis
Cannon v. Lewis
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-11401 Conference Calendar
JAMES EARL CANNON,
Plaintiff-Appellant,
versus
R. LEWIS, in his individual capacity; W. HOWARD, in her individual capacity,
Defendants-Appellees.
-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:00-CV-369-C -------------------- April 10, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
James Earl Cannon, Texas inmate # 607764, appeals the
dismissal without prejudice of his civil rights complaint filed
pursuant to
42 U.S.C. § 1983. Cannon argues that he is entitled
to the restoration of his good-time credits and to compensatory
and punitive damages because (1) his due process rights were
violated during his disciplinary proceedings and (2) the
defendants failed to follow prison rules and procedures.
Cannon’s assertion that he was deprived of good time-credit in
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-11401 -2-
violation of the prison’s disciplinary rules, if credited,
necessarily implies that his sentence for the disciplinary case
was invalid, thus affecting the duration of his confinement.
Because Cannon has not shown that the disciplinary case has been
overturned, he cannot maintain a
42 U.S.C. § 1983action against
the defendants for damages. See Heck v. Humphrey,
512 U.S. 477, 487(1994); Edwards v. Balisok,
520 U.S. 641, 648(1997).
Cannon’s allegation that the defendants did not follow
prison policy is not sufficient to afford him
42 U.S.C. § 1983relief. The failure of prison administrators to follow prison
rules and regulations does not, without more, give rise to a
constitutional violation. Myers v. Klevenhagen,
97 F.3d 91, 94(5th Cir. 1996).
Cannon’s argument that the failure of the defendants to
follow prison disciplinary procedures violated the Ruiz** consent
decree is improper under
42 U.S.C. § 1983. Remedial decrees do
not create or expand constitutional rights and cannot serve as a
basis for claims of damages under
42 U.S.C. § 1983. Green v.
McKaskle,
788 F.2d 1116, 1123(5th Cir. 1986).
The district court dismissed Cannon’s complaint without
prejudice; however, because the complaint is premature under
Heck, the dismissal should have been with prejudice. Boyd v.
Biggers,
31 F.3d 279, 283-84(5th Cir. 1994). Although there is
no cross-appeal, the dismissal of Cannon’s
42 U.S.C. § 1983** Ruiz v. Estelle,
503 F. Supp. 1265(S.D. Tex. 1980), aff’d in part and vacated in part,
679 F.2d 1115(5th Cir. 1982), amended in part and vacated in part,
688 F.2d 266(5th Cir. 1982). No. 00-11401 -3-
complaint is MODIFIED from “without prejudice” to “with prejudice
as frivolous” pursuant to
28 U.S.C. § 1915(e)(2)(B)(i). See
Marts v. Hines,
117 F.3d 1504, 1505-06(5th Cir. 1997)(en banc).
Cannon’s appeal is without arguable merit and, thus,
frivolous. Howard v. King,
707 F.2d 215, 219-20(5th Cir. 1983).
As the appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2.
Cannon has more than three strikes against him, and the
three-strikes bar of
28 U.S.C. § 1915(g) was imposed against him
in a previous appeal. See Cannon v. Pittman, No. 00-10576 (5th
Cir. Dec. 13, 2000) (unpublished). We remind Cannon that he
cannot proceed in forma pauperis in the district court or on
appeal except in cases in which he is under imminent danger of
serious physical injury. See
28 U.S.C. § 1915(g); Adepegba v.
Hammons,
103 F.3d 383, 387-88(5th Cir. 1996).
DISMISSED AS FRIVOLOUS.
Reference
- Status
- Unpublished