Opinion
3:01-CV-545-D.
April 6, 2001
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, the subject 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 filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Smith Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) in Lamesa, Texas. Respondent is Gary Johnson, Director of the TDCJ-ID. No process has been issued in this case.
Statement of Case: The petition challenges a disciplinary sanction that Petitioner received at the Smith Unit for disobeying an order. (Petition ¶¶ 4 and 17). He received the following punishment as a result of the disciplinary action taken: he lost fifteen days of recreation, commissary and phone privileges. (Petition ¶ 18). Prior to filing this action, Petitioner exhausted his administrative remedies. (Petition ¶ 19).
Petitioner alleges he was denied due process during the disciplinary proceedings. Specifically, he asserts that the evidence presented was insufficient to find him guilty of the disciplinary violation.
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." The instant petition does not present any cognizable basis for habeas corpus relief.
In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (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, 93 S.Ct. at 1841. Petitioner did not lose previously earned good-time credits because of the disciplinary action in this case. Therefore, his due process claim is not cognizable in a habeas corpus action. Accordingly, the District Court should summarily dismiss the petition. RECOMMENDATION:
Even if Petitioner's claims were properly brought in an habeas corpus action, it is now well established that commissary and recreation restrictions do not implicate a protected liberty interest. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). The Fifth Circuit has held that commissary and recreation restrictions do not impose a significant or atypical hardship on the inmate in relation to the ordinary incidents of prison life.Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). The same reasoning is applicable to phone-privilege restrictions, which like commissary and recreation 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, the magistrate judge recommends that the petition for habeas corpus relief be summarily dismissed pursuant to 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 to Douglass 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.