Opinion
Civil Action No. 4:00-CV-0232-Y
December 26, 2000
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND 0RDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendations of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254
B. PARTIES
Petitioner Jay Delber Brown, TDCJ-ID #590867, is a state prisoner who was confined in the Powledge Unit of the Texas Department of Criminal Justice, Institutional Division in Palestine, Texas at the time of filing of this petition.
Respondent Gary L. Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Brown was convicted of the offense of theft over $750.00 entered on February 17, 1991, in Cause No. 10801 the 43rd Judicial District Court of Parker County, Texas, for which he was sentenced to a term of incarceration of twelve years (Petition at ¶ 1). While confined pursuant to the conviction at the Powledge Unit, on August 18, 1999, Brown was found guilty by a prison disciplinary hearing officer of use or possession of contraband, namely tobacco products in prison disciplinary case number 199900378165. (Exhibit B to Respondent's Motion for Summary Judgment). Upon finding Brown guilty, the disciplinary hearing officer assessed punishment in the form of a demotion in good-time-earning class, suspension of contact visitation privileges, a verbal reprimand, one to fifteen days of solitary confinement, and a loss of fifty-five days of privileges. Id. Brown appealed the decision of the disciplinary hearing officer through the grievance process of the Texas Department of Criminal Justice, Institutional Division, raising the claim that the evidence presented at the hearing was insufficient to sustain the finding of guilt. (Exhibits attached to Brown's Petition). Brown then filed this federal petition for writ of habeas corpus with supporting documents pursuant to 28 U.S.C. § 2254. In response, the respondent filed a motion for summary judgment with attached documentary exhibits, with brief in support. Brown has filed a pleading in response with supporting documentary exhibits.
D. DISCUSSION
1. BROWN'S ALLEGATIONS
Brown challenges on due process grounds the prison disciplinary proceeding that resulted inter alia in the reduction in his good-time-earning status. (Exhibits attached to Brown's responsive pleading) (Docket Entry # 9). Brown states that as a result of the disciplinary proceeding he lost sixty seven days of good time credit, causing the delay of his release onto mandatory supervision and the lengthening of his incarceration. (Docket Entry #9). Specifically, Brown alleges that (1) his appeal from his step 1 grievance (i.e., his step 2 grievance) was improperly denied because it merely referred to the step 1 grievance; and (2) there was insufficient evidence to sustain the guilty finding. (Petition at 7). Brown asks this Court to "dismiss" any and all disciplinary charges arising from the subject incident, to restore him to his earlier earning status, to reinstate his earlier assigned mandatory supervision release date, and to return him to the job he held before the incident.
Attached to his petition, Brown has included a separate page titled, "Statement of Fact," in which he describes the particular facts of the incident as follows. Brown states that on August 12, 1999, he was assigned as a carpenter to work at a location called "#2 Barn." According to Brown, he and four other inmates were together at #2 Barn for various periods of time throughout the early morning. At one point during the day while he was working alongside one fellow inmate, two supervisors arrived and began to search the barn The search produced a plastic bag, and the officers questioned Brown and his fellow inmate about the discovery. Brown states that both he and his coworker advised the supervisor that they knew nothing of the bag or its contents. The supervisors then placed Brown and his co-worker under arrest, charging them with possession of a contraband. The other two inmates who had been at the barn earlier in the day were arrested shortly thereafter, and they were also charged with possession of a contraband. Brown was further questioned by the supervisors and then by the lieutenant warden. Brown states that although he knew nothing of the contraband, he received a disciplinary report and after a disciplinary hearing, he was found guilty along with the other three inmates.
The record reveals that Brown was charged with possessing on August 12, 1999, at 8:50 A.M. at Barn #2 feeder slab a tobacco product, namely 31 packs of tobacco, 24 cigarettes, and a cigarette lighter. (Disciplinary Report and Hearing Record attached to Petition). Brown was notified of the charges against him on August 13, 1999 at 9:30 A.M. Id. Brown indicated that he elected to proceed to a hearing and be present at the hearing. Id. A disciplinary hearing was conducted on August 18, 1999, during which Brown pleaded not guilty to the charge. Id. Brown was found guilty of the violation charged based upon the following: (1) the officers' report and the officers' testimony at the hearing; (2) witness testimony; and (3) Brown had provided no evidence to support his not guilty plea. Id. Brown pursued his administrative appeals, claiming that the tobacco was not his, the tobacco had not been found on him or seen with him, and several others had access to the area where the tobacco was found. (Step 1 and Step 2 Offender Grievance Forms attached to Petition). Brown's Step 1 grievance was denied with the authorized decision maker finding no procedural errors and stating in pertinent part that "[Brown] was identified as a participant, and it appears that there was sufficient evidence to support a guilty verdict." (Step 1 Offender Grievance Form dated August 12, 1999, attached to Petition). Brown took an appeal from his Step 1 Grievance, and his Step 2 Grievance was denied by the Regional Director, because (1) the Step 1 answer had addressed Brown's complaint; and (2) Brown had not given a good reason for further review of his claims. (Step 2 Offender Grievance Form attached to Petition).
Brown had also submitted a second Step 1 Offender Grievance Form, which was dismissed. (Step 1 Offender Grievance Form dated August 24, 1999) attached to Petition). Brown was advised that if he intended to appeal the denial of his earlier Step 1 Grievance, the proper procedure was to proceed to Step 2, which he did.
2. LEGAL ANALYSIS
It is well established that a state prisoner may bring a claim for restoration of good-time credits by petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (§ 2254 habeas petition is the sole remedy for a state prisoner seeking speedier release from imprisonment based on application of good-conduct time credits); Story v. Collins, 920 F.2d 1247, 1250-51 (5th Cir. 1991) (stating that a good conduct time claim attacks the conditions of his restraint under his judgment of conviction and appropriately is brought under 28 U.S.C. § 2254). See also Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998), cert. denied, 525 U S. 1151 (1999) (habeas corpus petition, rather than § 1983 action, was proper vehicle for inmate to employ in pursuing his claim that he was entitled to return of good time credits taken from him upon his conviction for violating allegedly unconstitutional prison rule).
Thorough review of Brown's petition now reveals, however, that Brown did not actually lose good conduct credits as a result of the disciplinary proceedings, but rather suffered a reduction in class status which decreased Brown's opportunity to earn future good time credits that could lead to an earlier release on mandatory supervision and a shortened time confined. (Exhibits to Petition). Respondent, therefore, argues in his motion for summary judgment that this case is more properly a civil rights action brought under 42 U.S.C. § 1983, rather than a petition for writ of habeas corpus under 28 U.S.C. § 2254, and Brown's petition should therefore be construed by this Court as a civil rights complaint pursuant to 42 U.S.C. § 1983. See Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied, 517 U.S. 1196 (1996). Brown's challenges to his removal from the general prison population to solitary confinement, to the suspension of his contact visitation privileges and to the loss of forty-five days of privileges, are not cognizable in a habeas corpus proceeding in that Brown is challenging the conditions his confinement, rather than the fact or duration of his confinement. Such sanctions clearly do not implicate due process concerns. Preiser v. Rodriguez, 411 U.S. at 493. However, Brown is also alleging that the disciplinary action resulted in a change in his good-time-earning status that extended the date for his release on mandatory supervision. Such a claim appears to be properly brought pursuant to 28 U.S.C. § 2254. See Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000).
Regardless of whether this action should be brought under § 1983 or § 2254, the analysis of the constitutional issues is essentially the same and Brown is not entitled to relief. See Broussard v. Johnson, 918 F. Supp. 1040, 1043 (E.D.Tex. 1996).
The respondent has not addressed whether Brown has properly exhausted his administrative remedies, reserving the right to do so in the event this petition was not dismissed as failing to state cognizable claims under § 2254. It appears that Brown has properly exhausted his state administrative remedies. In the event that Brown's habeas-corpus claims have not been properly exhausted, it is apparent that Brown's claims are devoid of merit, and therefore the case at bar is an instance where exercise of the new prerogative enacted at § 2254(b)(2) is appropriate. Under this provision, a federal court in its discretion may review on the merits and deny a habeas corpus application containing unexhausted claims See Lambert v. Blackwell, 134 F.3d 506, 513-15 (3rd Cir. 1998) (when deciding whether to deny a petition on the merits, denial is appropriate pursuant to § 2254(b)(2) when it is perfectly clear that the petition fails to present even a colorable claim regardless of its conformity with, or the state's invocation of, the exhaustion requirement); Hoxsie v. Kerby, 108 F.3d 1239, 1242-43 (10th Cir. 1997), cert. denied, 522 U.S. 844 (1997) (when habeas claims are without merit, the interests of comity and federalism, as well as the conservation of overburdened judicial resources, may be better served if the federal court addresses the merits of the habeas petition regardless of the petitioner's failure to exhaust the claims in state court).
Since the State of Texas has created a right to good time credit and recognizes that its revocation, with its attendant delay of release on mandatory supervision, is an authorized sanction for misconduct, a prisoner's interest in such credits is embraced within the Fourteenth Amendment's liberty concerns so as to entitle him to those minimum procedures appropriate under the circumstances and required by the due process clause to ensure that the state-created right is not arbitrarily abrogated. Malchi v. Thaler, 211 F.3d at 959. See also Wolff, 418 U.S. at 557. In Malchi, the Fifth Circuit reviewed the Texas mandatory supervision scheme and good time credits, and concluded that pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), there is a constitutional expectation of early release created by Texas' mandatory supervision scheme in place prior to September 1, 1996, for earned good time credits. Id. at 957-58. Malchi also arose in the context of disciplinary proceedings conducted in the prison context and, like Brown, Malchi had not actually lost good time credit, but he suffered a reduction in his good-time-earning status. Id. at 955, 958. The Court held that before good time credits can be revoked, a prisoner charged with a disciplinary violation while confined is entitled to minimum due process procedures appropriate under the circumstances. Id. at 959. Thus, since the former Texas statutes that provide for mandatory release create a liberty interest, the higher standard of due process enunciated in Wolff must be followed before the inmate may be deprived of those credits. Id. See also Wolff, 418 U.S. at 557. Brown is serving a sentence for an offense committed while the former mandatory supervision scheme was in place.
Although finding that minimum due process protestions are required when there is an actual loss of earned good time credits, with regard to time-earning status, the Court in Malchi went on to hold as follows:
While Malchi's time-earning status is less attenuated from his mandatory release than release on parole, we nonetheless conclude that the timing of Malchi's release is too speculative to afford him a constitutionally cognizable claim to the `right' to a particular time-earning status, which right the Texas legislature has specifically denied creating. See Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (holding that the loss of a prison job did not implicate the prisoner's liberty interest even though the prisoner lost the ability to automatically accrue good-time credits). We therefore conclude that the district court erred in granting Malchi habeas corpus relief.Malchi, 211 F.3d at 959. Thus, Brown does not have a constitutionally protected liberty interest in his time-earning status. He, therefore, cannot claim that the reduction of his good-time-earning status from S2 to S4 was without due proces. See Bulger v. United States Bureau of Prisons, 65 F.3d at 50, See also Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (concluding that Constitution does not create a property interest in prison employment); Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980) (holding that prisoner's expectation of keeping prison job does not amount to a property interest subject to due process protection). He is, therefore, not entitled to due process protection.
Moreover, contrary to Brown's assertion, he received all the procedural due process to which he was entitled (i.e., notice of the disciplinary charges and an Opportunity to present his views to the prison officials). In the instant case, it is readily apparent that Brown was served with notice of the disciplinary charge and that he was permitted to express his version of the facts at the disciplinary hearing. (Exhibits attached to Petition; Exhibit B to Respondent's Motion for Summary Judgment). Moreover, in cases where there is an actual loss of good time credits as a result of the disciplinary proceeding, federal courts will not review the sufficiency of the evidence at a disciplinary hearing; a finding of guilt requires only the support of some facts or any evidence at all to support the action taken by prison officials. Superintendent v. Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985) (holding "that revocation of good time does not comport with `the minimum requirements of procedural due process,' unless the findings of the prison disciplinary board are supported by some evidence in the record"); Stewart v. Thigpen, 730 F.2d 1002, 1005-06 (5th Cir. 1984); Smith v. Rabalais, 659 F.2d 539, 542 (5th Cir. 1981), cert. denied, 455 U.S. 992 (1982). In the instant case, Brown did not lose earned good-time credits. Thus, he is not entitled to the benefit of the "some evidence" test.
Since the punishment imposed in Brown's disciplinary case did not result in the loss of earned good-time credits, he is only entitled to minimum due process. See Hewitt v. Helms, 459 U.S. 460, 476 (1983), overruled in part by, Sandin v. Conner, 515 U.S. 472 (1995); see also Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994).
But, even if the "some evidence" test were applicable, it is clear that the test does not permit a court to make an independent assessment of the credibility of the witnesses or to weigh the evidence. Hill, 472 U.S. at 456-57. In sum, the disciplinary determination must not be arbitrary or capricious, but a reviewing court may not substitute its judgment for that of prison authorities. Stewart, 730 F.2d at 1005, Rabalais, 659 F.2d at 545 The record demonstrates that the fact-finder's conclusion was neither arbitrary nor capricious and there were at least some facts and evidence to support the finding of guilt. As indicated, the discipline hearing officer's decision was based upon the reporting officers' report and testimony. Thus, the discipline hearing officer found Brown's explanation of the event incredible (i.e, that he was merely present at the scene of the incident and had no knowledge, possession and/or control over the contraband), while finding the reporting officer's version of the events credible. The disciplinary hearing officer is entitled to make such determinations regarding the credibility and reliability of the evidence presented. See Smith v. Rabalais, 659 F.2d at 545-46. Thus, the discipline hearing officer's finding that Brown was guilty based on the reporting officers' report and testimony did not constitute an arbitrary and capricious exercise of her discretionary disciplinary function sufficient to give rise to a claim by Brown of a constitutional violation. Id. at 546. Further, there is sufficient evidence to support the finding of guilt. Superintendent v. Hill, 472 U.S. 445, 455 (1985). In conclusion, Brown has no liberty interest in his good time-earning status and the disciplinary action comported with due process and did not offend the constitution. Accordingly, Brown s not entitled to habeas corpus relief.
RECOMMENDATION
Respondent's Motion for Summary Judgment, should be granted to the extent that this petition for writ of habeas corpus be denied.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United Stated Magistrate Judge's proposed findings, conclusions and recommendation until January 16, 2001. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until January 16, 2001, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) ays of the filing date of the objections. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.