Opinion
3:03-CV-2096-D
October 21, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in Beaumont, Texas. Respondent is the Director of TDCJ-CID. No process has been issued in this case.
Statement of Case: On August 19, 1992, Petitioner was convicted of delivery of a controlled substance, in Criminal District Court No. 5, Dallas County, Texas, Cause No. F-92-63805-JL. Punishment was assessed at twenty-five years imprisonment. (Petition at ¶ 1-5).
In this action, Petitioner does not challenge his conviction. Instead, he attacks disciplinary sanction No. 20020092738 which he received at the Michael Unit of TDCJ-CID on December 12, 2001. (Petition ¶ 17-18). He received the following punishment as a result of the disciplinary action taken: (1) fifteen days of solitary confinement, (2) forty-five days of commissary and cell restriction; and (3) continuation of line-class-three status. (Id. ¶ 18). Petitioner states he has exhausted his administrative remedies. (Id. ¶ 19).
Petitioner initially filed this habeas action on August 7, 2003, in the United States District Court for the Eastern District of Texas, Beaumont Division, where he is currently confined. On August 20, 2003, the Eastern District of Texas transferred the action to this court.
In this federal habeas action, Petitioner seeks to expunge the above disciplinary case because it violated his due process rights. Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Courts, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
In addition to challenging the disciplinary action, Petitioner alleges three separate civil rights violations — i.e., (1) that prison officials assaulted Petitioner using excessive force in violation of the Eighth Amendment, while investigating the offense report; (2) that prison officials retaliated against Petitioner for using the grievance procedure in violation of his First Amendment rights; and (3) that the conditions of solitary confinement created a health risk to Petitioner in violation of the Eighth Amendment. (Memorandum in support of habeas corpus petition at 9-12). These claims are cognizable only in a civil rights action filed pursuant to 42 U.S.C. § 1983. Venue for such action would lie in the United States District Court for the Eastern District of Texas where the events occurred.
"Federal habeas relief cannot be had `absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States.'" Malchi v. Thaler. 211 F.3d 953, 957 (5th Cir. 2000) (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)). The instant petition does not present any cognizable basis for habeas corpus relief.
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court held that a habeas corpus petition is the sole remedy for a state prisoner challenging the forfeiture of accrued good-time credits as a result of a disciplinary charge. Id. at 500; see also In re Cain, 137 F.3d 234, 236 (5th Cir. 1998) (relying onPreiser v. Rodriguez to hold that a prisoner may seek redress for the loss of good-time credits following a prison disciplinary proceeding only through a habeas petition). Specifically, the Court stated "[w]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500; see also Heck v. Humphrey, 512 U.S. 477, 481 (1994) ("habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release").
The Fifth Circuit follows the same approach. See e.g. Kimbrell v. Cockrell, 311 F.3d 361, 362 (5th Cir. 2002) (collecting cases holding that when a prisoner is eligible for mandatory supervised release, and when prison disciplinary proceedings result in a change in good-time-earning status that extends the prisoner's release date, the petition challenging such proceedings falls within § 2254);Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures); Orellana v. Kyle. 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (same).
Petitioner did not lose previously earned good-time credits because of the disciplinary action at issue in this case. Nor is he seeking immediate or speedier release. He concedes he was ordered to remain at the same custody level — i.e., line class three — as a result of the disciplinary action. Insofar as the above order affected the earning of good-time credits and, hence, Petitioner's alleged entitlement to speedier release, his contention is meritless. The Fifth Circuit has held that the effect of a change in a prisoner's good-time earning status on the timing of his release on mandatory supervision is too speculative to afford him a constitutionally cognizable "right" to a particular time-earning status. See Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000). Therefore, Petitioner's due process claims challenging the disciplinary proceeding are not cognizable in this habeas corpus action. Id. at 957-58 (a challenge to a disciplinary proceeding presents a cognizable constitutional violation only when a prisoner, eligible, for mandatory supervision release, has lost good-time credits). The District Court should summarily dismiss the habeas corpus petition with prejudice. RECOMMENDATION:
The same holds true with regard to any expectation of release on parole. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (holding that because it is entirely speculative whether a prisoner will be released on parole, there is no constitutional expectancy to parole in Texas); see also Malchi, 211 F.3d at 957.
Even if Petitioner had properly brought this habeas corpus action, he would not be entitled to habeas relief. None of the sanctions which he received for the disciplinary conviction at issue in this case deprived him of a protected liberty interest, and as such he was not entitled to due process protection in the course of the disciplinary proceedings. It is established that fifteen days of solitary confinement does not deprive a prisoner of a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 486 (1995) ("segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest."); Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996) (quoting Luken v. Scott, 71 F.3d 192, 193 (1995)) ("`administrative segregation, without more, simply does not constitute a deprivation of a constitutionally cognizable liberty interest.'"). Nor did the forty-five days of commissary and recreation restrictions raise a due process issue.Madison, 104 F.3d at 768 (commissary and cell restrictions do not impose a significant or atypical hardship on the inmate in relation to the ordinary incidents of prison life).
For the foregoing reasons, it is recommended that the District Court dismiss with prejudice the petition for habeas corpus relief.See Rule 4, Rules Governing Section 2254 Cases.
A copy of this recommendation will be mailed to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.