(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-3408
(Summary Calendar)
LEONARD DOWELL,
Plaintiff-Appellant,
versus
JOHN P. WHITLEY, Warden,
Louisiana State Penitentiary,
ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Middle District of Louisiana
(CA 89 545 A M1)
June 29, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Leonard Dowell is before this court a
second time on matters arising from incidents occurring while he

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1 See Dowell v. Lensing, No. 92-3951, Habeas Corpus
AppealSQdisposition pending.
2
was a prisoner of the State of Louisiana. This appeal follows
remand of Dowell's first appeal of his civil rights action under
42 U.S.C. § 1983. He now challenges various rulings by the
district court on remand, including (1) concerns about the summary
judgment in favor of the Defendants on the issue of their alleged
conspiracy to convict Dowell unjustly of a disciplinary violation
and deprive him of his preferred prison job; (2) the court's
failure to discuss the alleged willful destruction of the tape
recording of the disciplinary proceedings; (3) the court's denial
of appointment of counsel, its handling of Dowell's habeas claim;
(4) the failure of the disciplinary board to provide written
reasons for imposition of his discipline; and (5) the Secretary's
alleged untimely issuance of Dowell's appeal decision. For the
reasons set forth below, we affirm some of the rulings of the
district court but vacate and remand others for further consistent
proceedings.
I
FACTS AND PROCEEDINGS
At all relevant times, Dowell was a state prisoner serving a
term of imprisonment at the Hunt Correctional Center in St.
Gabriel, Louisiana. He was released from prison in about October
1992, having completed serving his sentence.1 Dowell filed this
action in July 1989, styled an application for TRO and injunctive
relief, naming as defendants Warden Whitley and then Secretary of

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3
the Department of Public Safety and Corrections, Bruce Lynn. The
magistrate judge ordered Dowell's pleading filed as a § 1983
action. In December 1989, Dowell filed an amended complaint adding
as defendants the following prison officers and officials: Warden
Lensing, Warden Boker (properly, Boeker), Sgts. Cooper and Farrell,
Lt. Cruse, Captain Girard (properly, Girod), and Geautrouex
(properly, Gautreaux).
The amended complaint alleged that (1) Dowell's conviction and
commitment to prison are invalid (a habeas claim); (2) because of
his age Dowell is physically unable to do the field work required
of him; (3) Dowell was denied due process at his disciplinary
hearing because he was convicted of defiance; and (4) in
retaliation for Dowell's use of the Department of Corrections'
Administrative Remedy Procedure ("ARP") against "A" team,
defendants Girod, Cooper, Farrell, Cruse, Boeker, and Gautreaux
conspired to charge Dowell with, and convict him of, defiance.
Dowell alleged that Warden Boeker and Sgt. Cooper did this in order
to discredit him and his contributions to the phone crew. Dowell
requested declaratory and injunctive relief, and compensatory and
punitive damages.
The magistrate judge held a Spears hearing on the original
complaint, following which he filed his report recommending
dismissal with prejudice as frivolous. The magistrate judge did
not advert to Dowell's claim of retaliation because it was not
alleged in Dowell's original complaint. The magistrate judge did
not thereafter prepare a report to discuss the additional

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4
allegations and the retaliation claim contained in the amended
complaint. His only disposition of the new claims was to write on
the first page of the amended complaint that they were "frivolous
for the same reasons as set out in the prior Magistrate's Report."
The district court dismissed Dowell's action on the basis of the
magistrate judge's report, adopting it as the court's opinion, and
Dowell timely appealed.
On appeal, we sustained the district court's holding that
Dowell had not been denied due process at his disciplinary hearing
as there was evidence of his guilt, i.e., the report of Sgt.
Cooper, the guard whom Dowell allegedly defied. We declined to
rule, however, on Dowell's claims, raised newly upon appeal, that
(1) the board failed to specify the facts it relied on, and
(2) Dowell did not receive a timely decision from Secretary Lynn on
Dowell's appeal of the board's decision.
In that first appeal we also affirmed the district court's
ruling that the field work Dowell was required to do did not
constitute cruel and unusual punishment. We further concluded that
the district court did not err by treating Dowell's claim of
illegal imprisonment as a petition for habeas relief, and
considering it as such separately.
We did find in Dowell's favor, however, that he had made more
than conclusional allegations in support of his claim of
retaliation for using a prison administrative remedy. Accordingly,
we held that the district court erred by dismissing this claim as
frivolous without first conducting a Spears hearing on it. We

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5
therefore remanded again "so that a Spears hearing may be held on
Dowell's claim of retaliation."
On second remand, Dowell was given leave to amend his
complaint by adding claims that (1) he was denied due process by a
conspiracy of the members of the disciplinary board and others not
to specify the reasons for the punishment imposed by the board
(which the board in fact failed to do); (2) the board conspired not
to specify the factual basis for the finding of guilty of defiance;
and (3) Dowell did not receive an appeal return (notification of
the ruling) within 120 days, as allegedly required by the prison
rules. The defendants filed answers to the complaint as thus
amended.
The defendants then filed motions for summary judgment,
supported by memoranda, an affidavit of Secretary Bruce Lynn, and
other documents. Defendants also attached a copy of Louisiana's
Disciplinary Rules and Procedures for Adult Prisoners. Dowell
filed two unsworn oppositions, and one under penalty of perjury.
In the opposition made under penalty of perjury, Dowell
repeated his allegations of conspiracy. He asserted that the
defendants retaliated against him because he had filed for an
administrative remedy against "A" team. He also asserted that the
defendants willfully destroyed the tape of his disciplinary board
hearing in order to avoid federal court review of the unfair
proceedings. Appellees claim that the tape was destroyed because
Dowell failed to request that it be preserved.
The magistrate judge did not hold a Spears hearing as

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6
suggested by this court. The magistrate judge did, however, file
two reports recommending that the defendants' summary judgment
motions be granted. He concluded that there was no "evidence that
the defendants conspired in any manner to either have the plaintiff
issued a fabricated disciplinary report or to have the plaintiff
transferred from one job assignment to another." Dowell filed
sworn objections to the report. The district court, holding that
all of Dowell's claims lacked merit, granted the defendants'
motions for summary judgment and dismissed the action.
II
ANALYSIS
A. Summary Judgment
Rule 56(c), Fed. R. Civ. P., provides that the district court
shall render summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." To avoid summary judgment, the
opposing party "by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine
issue for trial." Fed. R. Civ. P. 56(e); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986).
Our standard of review of a summary judgment ruling is the
same as the district court's, and it must be based on the evidence
which was presented in the district court. Simon v. United States,

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7
711 F.2d 740, 743 (5th Cir. 1983). Dowell's objections to the
magistrate judge's first report, being made under penalty of
perjury, constituted an affidavit. So did his similarly made
opposition to the summary judgment motion.
B. Conspiracy to Destroy the Tape
In his objections to the report, Dowell averred that on
November 9, 1988, Sgt. Cooper, Captain Girod, and two other prison
officials willfully violated disciplinary procedure by allowing him
to be placed in lockdown on a baseless charge of "threat to
security." He asserted that on December 11, 1988, he sought
administrative remedies against the four, but that as a result of
their "clout" his request was not considered.
Later in December 1988, says Dowell, he was questioned by
Cooper, Girod, Warden Boeker, and another official about his ARP
request. Boeker assertedly asked Dowell, in "an ill-will manner,"
if he liked his job in the phone crew and told him that "all
trouble makers have a job in the hot sun in the fields." Dowell
averred that out of vindictiveness and as a reprisal, Cooper,
Girod, and a Major Hebert issued and approved the May 10, 1989,
disciplinary report charging him with defiance. Dowell also
asserted collusion on the part of the board members and Secretary
Lynn relative to his board hearing and his appeal. Dowell asserted
that, on its face, the disciplinary report failed validly to state
a charge of defiance. In his objections to defendants' motion,
Dowell asserted further that to avoid court review the defendants
willfully destroyed the tape of the disciplinary board proceedings.

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8
On somewhat similar facts, we have vacated a summary judgment
for defendants and remanded for further proceedings. Robichaux v.
Boeker, No. 90-3507, slip op. at 2-3 (5th Cir., Nov. 6, 1990)
(unpublished), copy attached. Accordingly, we now vacate the
district court's grant of summary judgment to these defendants on
this point and remand the case for further proceedings.
We also vacate the district court's judgment insofar as it
denied relief on Dowell's related claim that the key defendants
willfully destroyed the tape recording of the disciplinary board
proceedings. The magistrate judge and district court failed to
discuss this point in their opinions.
C. Failure to Appoint Counsel
Dowell contends that he is entitled to relief for the district
court's failure to appoint counsel to represent him. He filed a
motion for appointment of counsel in March 1991, which motion the
magistrate judge denied. But Dowell did not appeal this ruling to
the district court. Therefore we lack jurisdiction to consider it.
See Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379 (5th Cir.
1989).
D. Unlawful Imprisonment
Dowell has asserted that he was entitled to relief for
unlawful imprisonment. He also asserts that the district court
should not have separated his habeas claims from his other
allegations. As we held, on Dowell's prior appeal, that this was
proper, it is now the law of the case and thus not open to
argument. See Lyons v. Fisher, 888 F.2d 1071, 1074 (5th Cir.

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9
1989), cert. denied, 495 U.S. 948 (1990). Furthermore, we can take
judicial notice of the record in No. 92-3951, wherein it appears
that Dowell completed service of his sentence in or about October
1992. See Dowell v. Lensing, No. 92-3951; p.1; see also MacMillan
Bloedel Ltd. v. Flintkote Co., 760 F.2d 580, 587 (5th Cir. 1985).
Completing his sentence rendered moot his claims for injunctive
relief. See Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir.
1990).
E. Written Reasons
Dowell contends that he is entitled to relief on grounds that
the disciplinary board failed to give written reasons for the
imposition of his sentence. The stated reason for the finding of
guilty was "The officer version is determined to be more credible
than the inmate." The officer's version is set forth in the same
report. This is adequate to comply with the requirement in Wolff
v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935
(1974), that there be a statement of "`reasons' for the
disciplinary action."
F. Timely Issuance of a Decision
Dowell contends that he is entitled to relief on grounds that
Secretary Lynn did not issue his decision on Dowell's appeal from
the disciplinary board's ruling within 120 days, as required by the
1986 disciplinary rule book for prisoners. The Secretary rendered
his decision on July 12, 1989, 61 days after the disciplinary
hearing, but Dowell apparently did not receive it until October 17,
1989.

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10
The rule book provides that "[t]he Secretary will issue all
appeal decisions within 120 days of the date of the last hearing
for each case." The mandatory "shall" is not used; neither does
the rule book state that any consequence would result from the
Secretary's failure to comply. See id.
The record shows that the Secretary issued his decision
timely, if "issued" means "rendered." Neither the record nor
Dowell suggests who is responsible for delivery of the decision to
the inmate or, in this instance, who was responsible for the delay
in delivering the Secretary's decision to Dowell.
The magistrate judge concluded: "The absence of both
substantive predicates to govern official decisionmaking and
explicitly mandatory language requiring a particular outcome
compels the conclusion that the disciplinary rules do not create a
protected liberty interest based on an untimely appeal decision."
This ruling, which the district court adopted, is correct. See
Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 459-
63, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).
III
CONCLUSION
We find no reversible error on the part of the district court
in this case on any claim by Dowell except on the one contesting
the court's grant of summary judgment in favor of the defendants on
Dowell's claim of invalidity of the disciplinary charge of defiance
and the related claim of willful destruction of the tape recording.
We therefore affirm the judgment of the district court in all other

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respects, but vacate that portion of the summary judgment and
remand for reconsideration of the issues therein implicated.
AFFIRMED in part, and VACATED and REMANDED in part.

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