Nelson v. Stalder, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30323
Summary Calendar
RICKY NELSON,
Plaintiff-Appellee,
versus
RICHARD STALDER, Department of Corrections, ET AL.,
Defendants
KELLY WARD, Warden of David Wade Correctional Center;
JEAN BAKER, records analyst at David Wade Correctional Center;
HENRY GOINS,
Defendants-Appellants
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CV-1893-I
--------------------
January 25, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The defendants appeal the district court’s denial of their
qualified-immunity-based motion for summary judgment. They argue
that the district court erroneously determined that the plaintiff
had alleged the violation of a clearly established constitutional
right and that their attendant conduct was objectively
unreasonable. We agree, and we reverse and remand for entry of
summary judgment in their favor.

-- 1 of 5 --

No. 01-30323
-2-
Summary-judgment decisions are reviewed de novo, applying
the same test as the district court. E.g., Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992). "Summary
judgment is properly granted 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
judgment as a matter of law.'" Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Rule 56(c)). The denial of a
motion for summary judgment based on qualified immunity is
immediately appealable only when based on an issue of law.
Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999). The
district court did not deny summary judgment based on the
existence of genuine issues of material fact, but rather decided,
as a matter of law, that the facts did not support the
qualified-immunity defense. We therefore have jurisdiction over
this appeal.
The evaluation of a qualified-immunity claim is a two-step
process. "The first step is to determine whether the plaintiff
has alleged a violation of a clearly established constitutional
right." Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997);
see also Hare v. City of Corinth, MS, 135 F.3d 320, 325 (5th Cir.
1998). A right is “clearly established” if the unlawfulness of
the conduct in question is apparent based on pre-existing law
from this circuit or from the Supreme Court. Shipp v. McMahon,
234 F.3d 907, 915 (5th Cir. 2000), cert. denied, 121 S. Ct. 2193
(2001).

-- 2 of 5 --

No. 01-30323
-3-
"The second step requires the court to determine whether
[the defendant's] conduct was objectively reasonable under
existing clearly established law. " Colston, 130 F.3d at 99; see
also Hare, 135 F.3d at 326. "Clearly established" means that the
"contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640
(1987). A defendant is entitled to qualified immunity "unless,
at the time and under the circumstances of the challenged
conduct, all reasonable officials would have realized that [the
defendant's conduct] was proscribed by the federal law on which
the suit is founded." Pierce v. Smith, 117 F.3d 866, 871 (5th
Cir. 1997).
To bring a procedural due process claim under 42 U.S.C.
§ 1983, a plaintiff must first identify a protected liberty
interest and then prove that governmental action resulted in a
deprivation of that interest. San Jacinto Sav. & Loan v. Kacal,
928 F.2d 697, 700 (5th Cir. 1991). Nelson had a state-created
liberty interest in receiving credit for time served because the
state court determined that state law required that he be given
such credit. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995)
(States may create liberty interests which are protected by the
Due Process Clause). That interest was indeed deprived by the
erroneous decision of the defendants. Nelson was therefore
entitled to the protections of procedural due process, which he
received in the form of the administrative review procedures.
See Thompson v. Cockrell, __ F.3d __ (5th Cir. Aug. 23, 2001, No.

-- 3 of 5 --

No. 01-30323
-4-
00-40820), 2001 WL 958905 at *1 (only those state-created liberty
interests that inevitably affect the duration of a sentence
qualify for constitutional protection).
However, that right was not clearly established until the
state court declared it. At the time the defendants made their
erroneous interpretation of the law, Nelson had no clearly
established liberty interest in the defendants’ interpreting
state law correctly. Nelson received his right to procedural due
process when the state court corrected the defendants’ error and
ordered that Nelson be credited with the time served.
The district court based its determination that Nelson had
alleged the violation of a clearly established procedural due
process right on a decision from the Third Circuit, Sample v.
Diecks, 885 F.2d 1099 (3d Cir. 1989). Sample is inapposite,
however, because it is neither Fifth Circuit nor Supreme Court
jurisprudence. See Shipp, 234 F.2d at 915. It is furthermore
distinguishable insofar as it involved a prison regulation which
authorized consultation with legal professionals on questionable
computation issues. Nelson has identified no such regulation,
nor has he identified relevant federal jurisprudence which
establishes that the administrative remedy procedure in place
afforded him insufficient procedural due process or that
postdeprivation remedies were inadequate.
Nelson has failed to establish the violation of a clearly
established constitutional right, and, therefore, the defendants
are entitled to the qualified-immunity defense.

-- 4 of 5 --

No. 01-30323
-5-
We therefore REVERSE and REMAND for entry of summary
judgment in favor of the appellants.

-- 5 of 5 --