Opinion
No. 3:02-CV-413-M
March 4, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the District Court. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND A. Parties; Petitioner, Ricky Dion Williams, a state inmate currently in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID), brings this action as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Director of TDCJ-CID, Douglas Dretke, is Respondent. The Court has not required Respondent to answer.
B. Procedural History
Petitioner was convicted in the 363rd Judicial District Court at Dallas, Texas on August 20, 1999, and sentenced to a five-year term of imprisonment for unlawful possession of a controlled substance. (Pet. at 2.) Petitioner does not challenge his conviction. Rather, he challenges a disciplinary decision. On December 4, 2001, after a hearing, Petitioner was found guilty of the disciplinary violation of "making a false statement to an agency representative." (Disciplinary case No. 20020087742.) He received the following discipline: (1) a loss of contact visits through May 5, 2002; (2) a thirty — day recreation restriction; (3) a thirty-day commissary restriction; (4) a thirty-day cell restriction; and (5) forty-two hours of extra duty. He did not lose any good time credit as a result of the disciplinary conviction. He appealed the discipline through the TDCJ-CID grievance procedure. On February 23, 2002, he initiated this proceeding. Petitioner challenges the disciplinary proceeding on the grounds that his due process rights were violated because (1) he was threatened; (2) there was no handwriting expert testimony presented; and (3) he was denied a fair hearing.
II. DISCUSSION
Petitioner filed this action as a petition for writ of habeas corpus on a standard § 2254 form. Petitioner does not state a claim under 28 U.S.C. § 2254 because he does not allege that the disciplinary hearing or resulting punishment affect the timing of his release from incarceration. See Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). In Carson, the Fifth Circuit Court of Appeals set out the recognized bright-line rule for determining the proper basis for a given action. Id. A writ of habeas corpus is the appropriate federal remedy for a state prisoner to challenge the fact or duration of his confinement, in other words, to seek release from custody. Id. However, claims involving the conditions of confinement and prison procedures are properly brought under 42 U.S.C. § 1983. Carson, 112 F.3d at 820-21. If a favorable determination of the proceeding would not automatically entitle the prisoner to accelerated release, the proper vehicle is a § 1983 suit. Id.
Petitioner did not lose any good time credits as a result of his conviction on the disciplinary charge. He does not allege that the discipline deprived him of an earlier release to mandatory supervision. In Texas, only sanctions that result in the loss of good time credits for inmates who are eligible for release on mandatory supervision or that otherwise directly and adversely affect release on mandatory supervision create a liberty interest. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Petitioner did not lose any good time credits; therefore, he does not raise a constitutional claim that is cognizable on federal habeas corpus review. The petition should be dismissed with prejudice.
Even if the Court were to charge Petitioner the $150 filing fee and construe this action as one brought pursuant to 42 U.S.C. § 1983, it would be fufile. Petitioner claims that as a result of his conviction on a disciplinary charge, he received the following punishment: (1) a loss of contact visits through May 5, 2002; (2) a thirty-day recreation restriction; (3) a thirty-day commissary restriction; (4) a thirty-day cell restriction; and (5) forty-two hours of extra duty. He fails to allege a cognizable claim for violation of his constitutional rights. When a prisoner is lawfully incarcerated, he loses many of the rights and privileges that most citizens enjoy. Madison, 104 F.3d at 767. The Fifth Circuit has held that cell restrictions and loss of commissary privileges are "merely changes in the conditions of confinement and do not implicate due process concerns." See Madison, 104 F.3d at 768; see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) ("administrative segregation, without more, does not constitute a deprivation of a constitutionally cognizable liberty interest."); Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) ("Inmates have no protectable property or liberty interest in custodial classifications."). Petitioner's claims regarding his loss of privileges fail to state a civil rights violation.
Petitioner was granted leave to proceed in forma pauperis in this habeas corpus proceeding. Accordingly, he was not subject to the filing fee provision of § 1915(b)(1) which requires that a prisoner bringing a civil action in forma pauperis pay in full amount of a filing fee in installments taken from his prison account. See Carson, 112 F.3d at 820 (holding that provisions of the Prison Litigation Reform Act of § 1915 do not apply to actions filed under 28 U.S.C. § 2254). If the Court were to construe the petition as a complaint in a civil rights action pursuant to 42 U.S.C. § 1983, the filing fee provisions would apply and Petitioner would be required to pay the $150 filing fee.
III. RECOMMENDATION
The petition for writ of habeas corpus should be dismissed with prejudice.