Opinion
No. 3:01-CV-2291-D
November 20, 2002
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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Parties: Petitioner Kevin Reid Althouse, a state inmate currently incarcerated in the Eastham Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID), filed this action as a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. He names Janie Cockrell, Director of TDCJ-ID, as respondent.
B. Procedural History: In 1999, petitioner was convicted of aggravated assault with a deadly weapon in Dallas County, Texas. (Pet. Writ of Habeas Corpus (Pet.) at 2.) On May 23, 2001, while incarcerated in the Eastham Unit, he allegedly "REFUSED TO BEGIN OR TURN OUT FOR HIS WORK ASSIGNMENT WITHOUT A LEGITIMATE EXCUSE." ( See TDCJ Disciplinary Report H'rg Record attached as exhibit to Pet., hereinafter referred to as Disciplinary Report.) That allegation resulted in a hearing on May 27, 2001, to permit petitioner to plead to the alleged infraction and determine his punishment, if any. ( Id.) Petitioner pled guilty to the infraction and received cell and commissary restrictions for ten days. ( Id.) He lost no good-time credits as a result of the disciplinary action. (Pet. ¶ 18.) He appealed the discipline through the TDCJ grievance procedure. ( Id. ¶ 19; see also, Step 1 and Step 2 Offender Grievance Forms attached to Pet.)
In November 2001 petitioner filed the instant action. (Pet. at 1, 9.) He challenges the disciplinary proceeding and the imposed punishment on three grounds: (1) cruel and unusual punishment; (2) due process violation; and (3) unconstitutional slavery and involuntary servitude. (Pet. at 2, 5, 7.) On November 30, 2001, the Court granted petitioner permission to proceed in forma pauperis. The Court has not yet directed respondent to file an answer.
II. NATURE OF ACTION
Petitioner filed this action as a petition for writ of habeas corpus on a standard § 2254 form. Because petitioner does not allege that the disciplinary hearing or resulting punishment affect the timing of his release from incarceration, the instant action is properly characterized as an action under 42 U.S.C. § 1983. See Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). In Carson, the Fifth Circuit Court of Appeals addressed the differences between habeas and § 1983 actions and set out the recognized bright-line rule for determining the proper basis for a given action:
Generally, § 1983 suits are the proper vehicle to attack unconstitutional conditions of confinement and prison procedures. A habeas petition, on the other hand, is the proper vehicle to seek release from custody.
The distinction is blurry, however, when, as here, a prisoner challenges an unconstitutional condition of confinement or prison procedure that affects the timing of his release from custody. We have adopted a simple, bright-line rule for resolving such questions. If "a favorable determination . . . would not automatically entitle [the prisoner] to accelerated release," the proper vehicle is a § 1983 suit.112 F.3d 818, 820-21 (citations omitted).
In this case, petitioner alleges nothing that affects the timing of his release. He lost no good time credits as a result of the imposed discipline. (Pet. at 5.) Further, he is not eligible for release on mandatory supervision, ( id.), so even a loss of good-time credits would have had no impact on his release date. See Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997). A favorable determination on any of petitioner's claims would not entitle him to earlier release. Thus, pursuant to the bright-line rule in Carson, the instant action is properly characterized as arising under § 1983.
The parties will be referred to as petitioner and respondent rather than plaintiff and defendant for consistency with prior orders entered in this case. The petitioner's filing will also be referred to as a petition rather than as a complaint.
III. FILING FEE
Because petitioner filed this action under 28 U.S.C. § 2254, he was not subject to the filing fee provision of § 1915(b)(1). 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 § 2254). Section 1915(b)(1) of Title 28 provides that "if a prisoner brings a civil action . . . in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee." Since petitioner's claims are properly characterized as arising under § 1983, he will be required to pay the full $150 filing fee upon acceptance of these findings and recommendation.IV. VENUE
Petitioner filed his claims in this district pursuant to 28 U.S.C. § 2241 (d), as interpreted by Wadsworth v. Johnson, 235 F.3d 959 (5th Cir. 2000). ( See Pet. at 2.) Pursuant to Section 2241(d) and Wadsworth, venue is proper in this district for claims arising under § 2254. However, the proper venue for § 1983 claims is governed by the general venue provisions of 28 U.S.C. § 1391. Section 1391(b) provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
In this case, the events giving rise to petitioner's § 1983 claims occurred in the Eastham Unit of TDJC-ID, which is in the Eastern District of Texas. Absent allegations that jurisdiction is solely founded on diversity of citizenship or that the sole respondent resides in this district, the Eastern District of Texas is the proper venue for this § 1983 action. See 28 U.S.C. § 1391 (b).
V. PROPRIETY OF TRANSFER
The Court must determine whether to transfer this action to a court of proper venue or dismiss the action. See 28 U.S.C. § 1406 (providing that, to cure a defect in venue, the courts shall dismiss, or if it be in the interest of justice, transfer cases filed in the wrong division or district). Because petitioner is a prisoner seeking redress from an officer or employee of a governmental entity, this action is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). It is also subject to screening under § 1915(e)(2) because petitioner proceeds in forma pauperis. Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of this action, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. See id.
As will be demonstrated below, the claims raised in the instant petition fail to state a claim upon which relief may be granted. The interests of justice do not favor transferring such claims to a different court. Accordingly, the Court should dismiss this action rather than transfer it.
VI. SECTION 1983 RELIEF
Petitioner challenges the disciplinary proceeding and resulting punishment on three bases: (1) cruel and unusual punishment; (2) due process violation; and (3) unconstitutional slavery and involuntary servitude. (Pet. at 2, 5, 7.) Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id. To state a claim under § 1983, plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States; and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir. 1999).
A. Cruel and Unusual Punishment
Petitioner claims that the ten-day cell and commissary restrictions imposed as punishment for his failure to report for work constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. ( See Pet. at 7; Disciplinary Report.) The United States Supreme Court recently stated:
[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (some internal quotation marks omitted). We have said that "[a]mong `unnecessary and wanton' inflictions of pain are those that are `totally without penological justification." Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).Hope v. Peizer, ___ U.S. ___, ___, 122 S.Ct. 2508, 2514 (2002). Limited restrictions such as those imposed on petitioner do not rise to the level of "unnecessary and wanton" inflictions of pain. Cf. Edwards v. Johnson, 209 F.3d 772, 777-78 (5th Cir. 2000) (finding no constitutional violation in placing an INS detainee in administrative segregation for eleven days before his disciplinary hearing and in disciplinary segregation for fifteen days following the hearing); Martin, 156 F.3d at 580 (finding prisoner's allegations of cruel and unusual punishment based on administrative segregation, including commissary restrictions, were frivolous because conditions did not rise to level of cruel and unusual punishment). Such restrictions impose no significant or atypical hardship on the inmate in relation to the ordinary incidents of prison life. Madison, 104 F.3d at 768. Further, the imposition of ten-day cell and commissary restrictions for petitioner's failure to report for work is not without penological justification. "[T]he refusal to work presents a threat to the orderly administration of the prison system and unjustified refusal is rightly answered with sanctions or discipline." Mendoza v. Lynaugh, 989 F.2d 191, 194 n. 4 (5th Cir. 1993).
Petitioner has failed to state a claim under the Eighth Amendment that entitles him to relief. Consequently, this claim should be dismissed.
B. Due Process
Petitioner also claims that the disciplinary hearing and resulting punishment violate his right to due process because he is mentally incompetent and cannot be punished. (Pet. at 7.) Lawful incarceration results in the loss of many rights and privileges that most citizens enjoy. Sandin v. Conner, 515 U.S. 472, 485 (1995); Madison, 104 F.3d at 767. States may, nevertheless, create liberty interests that are protected by the due process clause. Sandin, 515 U.S. at 484-85; Madison, 104 F.3d at 767. These liberty interests are generally limited to matters which affect the amount of time served by a prisoner, such as lost good-time credits and eligibility for mandatory supervision. See Maichi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison, 104 F.3d at 767.
In this case, petitioner lost no good-time credits as punishment for his disciplinary infraction. ( See Pet. ¶ 18.) Further, he is serving a sentence for aggravated assault with a deadly weapon, see id. ¶ 4, which makes him ineligible for mandatory supervision. See TEX. GOV'T CODE ANN. § 508.149(a)(7) (Vernon 1998). Petitioner himself recognizes that he is ineligible for mandatory supervised release. ( See Pet. ¶ 16.) Because petitioner has lost no good-time credits and is ineligible for release to mandatory supervision he has stated no cognizable due process violation. See Maichi, 211 F.3d at 957-58.
The due process clause "does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner." See Sandin, 515 U.S. at 478. Disciplinary restrictions that alter the conditions of confinement, such as commissary and cell restrictions, do not implicate due process. See Maichi, 211 F.3d at 958 (holding that thirty-day loss of commissary privileges and cell restriction did not implicate due process concerns); Madison, 104 F.3d at 768 (same). Such restrictions are not penalties which represent the type of atypical, significant deprivation in which a state might create a liberty interest. Id.
Petitioner has established no liberty interest sufficient to justify relief. Accordingly, this claim should be dismissed.
C. Slavery and Involuntary Servitude
Petitioner lastly argues that his punishment violates his right to be free from slavery and involuntary servitude. ( See Pet. at 7.) The Thirteenth Amendment of the United States Constitution provides that "[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction." The Fifth Circuit Court of Appeals has specifically held that "[t]he Constitution does not forbid an inmate's being required to work." Ali v. Johnson, 259 F.3d 317, 318 n. 2 (5th Cir. 2001). Consistent with the language of the Thirteenth Amendment, it held that there is no viable issue of peonage, slavery, or involuntary servitude, when a person has been "duly tried, convicted and sentenced in accordance with the law." Id. at 318 (quoting Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963)); see also, Mendoza, 989 F.2d at 194 n. 4 (recognizing that "inmates can be required to work" and that a "work assignment alone does not rise to a constitutional violation"). This claim has no merit and should also be dismissed.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the District Court DISMISS with prejudice petitioner's application for habeas corpus relief, which has been construed as a complaint arising under 42 U.S.C. § 1983. He fails to state a claim upon which relief may be granted. Such dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915 (g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).