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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 7, 2004
FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III
Clerk
No. 03-31071
Summary Calendar

TERRY D. TILMON,
Plaintiff-Appellant,
versus
STEVE PRATOR; JOHN SELLS; MCCREARY, Sergeant;
RANDAL TERRELL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:
Terry D. Tilmon appeals the district court's dismissal of
his 42 U.S.C. § 1983 action for failure to state a claim upon
which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii).
Tilmon filed this 42 U.S.C. § 1983 action against Steve Prator,
the Sheriff of Caddo Parish; John Sells, Commander at Caddo
Correctional Center; Sgt. McCreary, supervisor; and Randal
Terrell, deputy sheriff. Tilmon alleged that on April 9, 2001,
his cell was randomly searched, various items alleged to
be contraband were seized, and he was punished by being confined

No. 03-31071
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in punitive "cell 32" for eight hours and suffering the loss of
telephone privileges, loss of visitation privileges, and loss of
recreation. He alleged that prior to being punished, he was not
afforded an administrative hearing, the opportunity to make a
statement, the right to present documentary evidence, the right
to call or confront witnesses, a copy of the infraction report,
or the assistance of a staff member. Tilmon alleged that on
April 10, 2001, he was approached by Sgt. McCreary, who asked him
to sign a disciplinary report for the infraction for which he had
been punished. On April 11, an investigation was conducted by
Sgt. Mitchell and Deputy Filler, which revealed that the items
seized were not contraband. Tilmon asserted that if he had been
given a hearing prior to being punished, he would have had the
opportunity to demonstrate that the items were not contraband.
He alleged that his punishment was arbitrary and capricious and
that he was denied due process.
The district court determined that he was not entitled
to due process under Sandin v. Conner, 515 U.S. 472 (1995).
Tilmon had argued that Sandin did not apply, citing Fuentes v.
Wagner, 206 F.3d 335 (3d Cir. 2000), in which that court held
that a convicted inmate awaiting sentencing has the status of a
pretrial detainee. The district court rejected Tilmon's argument
that because he was convicted but not sentenced, Sandin did not
apply.

No. 03-31071
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Tilmon argues that the district court erred when it ruled
that convicted but not yet sentenced individuals are not entitled
to due process protections as pretrial detainees. He states that
he relies upon the reasoning in the Third Circuit's opinion in
Fuentes.
Fuentes involved a Fourteenth Amendment Due Process claim by
a prisoner who was convicted but awaiting sentencing. He alleged
that he was denied a hearing before being placed in a restraint
chair for eight hours. The Third Circuit determined that Sandin
v. Conner did not apply because Sandin concerned the punishment
of a sentenced prisoner. The court stated that Fuentes' status
under the Constitution was that of a pretrial detainee, citing
its previous opinion in Cobb v. Aytch, 643 F.2d 946, 962 (3d Cir.
1981). Fuentes, 206 F.3d at 341. In Cobb, the court held that
the right to remain at liberty continued until the pronouncement
of sentencing. The court based its reasoning on the fact that
Pennsylvania law allowed unsentenced defendants a right to bail
and that unsentenced prisoners retained their Sixth Amendment
rights to speedy trial and effective assistance of counsel.
643 F.2d at 962. Evitts v. Lucey, 469 U.S. 387, 393-95 (1985).
The court in Fuentes also rejected the notion that Fuentes'
status was the same as a sentenced defendant "because it is
simply wrong," citing Bell v. Wolfish, 441 U.S. 520, 538 (1979).
206 F.3d at 341 n.7. We do not read Bell v. Wolfish as
suggesting that a convicted but unsentenced prisoner should be

No. 03-31071
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treated as a pretrial detainee. To the contrary, the Court in
Bell stated that "under the Due Process Clause, a detainee may
not be punished prior to an adjudication of guilt in accordance
with due process of law." 441 U.S. at 535. The Court stated the
"general principle that punishment can only follow a
determination of guilt after trial or plea." 441 U.S. at 537
n.17.
In our view, the adjudication of guilt, i.e., the
conviction, and not the pronouncement of sentence, is the
dispositive fact with regard to punishment in accordance with due
process. The Eighth, Ninth, and Tenth Circuits have recognized
this principle. The Tenth Circuit, citing Bell, stated:
We see no reason to treat incarcerated
persons whose guilt has been adjudicated
formally but who await sentencing like
pretrial detainees, who are detained
primarily to ensure their presence at trial
and who cannot be punished; and we perceive
every reason to treat those awaiting
sentencing the same as inmates already
sentenced. The critical juncture is
conviction, either after trial or ... by
plea, at which point the state acquires the
power to punish and the Eighth Amendment is
implicated.
Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990).
The Eighth Circuit in Whitnack v. Douglas County, 16 F.3d 954,
957 (8th Cir. 1994) determined that the prison condition claim
of a prisoner who was convicted and awaiting sentencing was
governed by the Eighth Amendment, in contrast to the claim of his
cellmate, a pretrial detainee, whose claim was governed by the

No. 03-31071
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Fourteenth Amendment's Due Process Clause. In Resnick v. Hayes,
213 F.3d 443, 448 (9th Cir. 2000), that court held that for
purposes of analyzing whether the plaintiff had a liberty
interest in being free from confinement in the prison's special
housing unit for 30 days pending his disciplinary hearing, the
convicted but unsentenced prisoner should be treated as a
sentenced inmate and not a pretrial detainee.
Tilmon argues that the Third Circuit's reasoning in
Fuentes is apposite to Louisiana's jurisprudence and judicial
practices regarding when the State actually inherits the power to
punish and when a prisoner's liberty ceases. He cites several
Louisiana statutes concerning the function of the Department
of Corrections, postconviction remedies, and motions for post
verdict judgment of acquittal.
Tilmon did not make these particular arguments in the
district court either in his objections or on remand of this
case, and thus, the district court did not have the opportunity
to consider these arguments. Because he raises these arguments
for the first time on appeal, we review for plain error.
See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29
(5th Cir. 1996)(en banc); Highlands Ins. Co. v. National Union
Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994) (applying
plain-error analysis of United States v. Olano, 507 U.S. 725,
730-37 (1993) in civil cases). The district court did not
plainly err in reaching its conclusion based on consideration of

No. 03-31071
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the three other Circuit court decisions which disagreed with
Fuentes.
We hold that a prisoner who has been convicted but has not
yet been sentenced has the same status as a sentenced prisoner
for purposes of analyzing whether the prisoner has a liberty
interest in having certain procedural protections apply
before being punished in connection with prison disciplinary
proceedings. Because Tilmon was a convicted prisoner, he had no
liberty interest implicated by his confinement in a punitive cell
for eight hours pursuant to Sandin v. Conner. The district court
did not err in dismissing Tilmon's action for failure to state a
claim. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
AFFIRMED.