Opinion
No. 4:02-CV-687-A
November 20, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636 (b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Jason Lewis Daniel, TDCJ-ID #889632, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Rosharon, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
By the instant habeas petition, Daniel challenges a August 27, 2001 disciplinary proceeding conducted at the Smith Unit, and the resultant loss of 30 days good time and 45 days recreation and commissary privileges and a reduction in class status from L-1 to L-3. (Disciplinary Packet (DP) at 11.) Daniel was charged in Disciplinary Case No. 20010345772 for using or possessing a tobacco product, a level 2, code 16.1 violation. ( Id. at 1-3, 7-10.) Apparently, on August 14, 2001, a corrections officer smelled tobacco smoke on Daniel's person and questioned him regarding the odor. According to the officer, Daniel told him that he smoked two rolled up cigarettes in a restroom. ( Id. at 3.) A search of the area revealed a bag of tobacco and rolling papers in Daniel's shoes. ( Id.) After receiving notice of the charge, Daniel attended a disciplinary hearing on August 27, 2001, during which he pled not guilty, but was found guilty of the charged offense. ( Id. at 11.) Daniel filed Step I and Step 2 grievances contesting the guilty finding. (Disciplinary Grievance Record (DGR).) On July 24, 2002, Daniel filed this federal petition for writ of habeas corpus in the United States District Court for the Southern District of Texas, Lubbock Division, which was subsequently transferred to the Fort Worth Division by order dated August 10, 2002.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. GROUNDS
In three grounds, Daniel raises the following issues:
1. There was no evidence to support a finding of guilt.
2. His due process rights were violated because the disciplinary tape was not reviewed in the grievance process. (Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell believes Daniel has sufficiently exhausted his state administrative remedies and does not move for dismissal on exhaustion grounds. (Resp't Answer at 3.)F. DISCUSSION
In his first and second grounds, Daniel contends there was no evidence to support a finding of guilt because the tobacco was found in a common area, the prison kitchen, in which he worked along with 150 other inmates, and the prison official could not show that he ever exercised care, control, custody, or management over the tobacco. He further argues that there were many shoes in the "shoe box" where the officer stated the tobacco was found, and the shoes were not "confiscated, photographed, presented or identified" at the hearing as belonging to him. (Pet. at 7.)
As a preliminary matter, a state prisoner seeking federal habeas review pursuant to § 2254 must assert a violation of a federal constitutional right to be entitled to such relief. See Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). To the extent the disciplinary proceeding resulted in the loss of recreation and commissary privileges and the reduction in line class status, which do not impact the fact or duration of confinement, these claims do not raise a federal constitutional question. See Sandlin v. Conner, 515 U.S. 472, 487 (1995); Preiser v. Rodriguez, 411 U.S. 475, 493 (1973); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 517 U.S. 1196 (1996).
However, Daniel's loss of good time credits calls for a more careful analysis. Although there is no inherent right to good time credit, when a state creates a right to such credits and the revocation of such credits is an authorized sanction for misconduct, it creates a liberty interest in those credits triggering due process protection. Sandlin, 515 U.S. at 483-84; Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Madison, 104 F.3d at 768. In these circumstances, due process requires a factual basis for a disciplinary decision and certain procedural protections before a prison inmate can be deprived of his liberty interest in good time credits. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985); Wolff, 418 U.S. at 563-66. Findings of a disciplinary board that result in the loss of good time credits must be supported by some evidence to satisfy due process. Hill, 472 U.S. at 455-56. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Id. at 455. The relevant inquiry is whether there is any evidence in the record that could support the conclusion reached by the disciplinary officer. Id. at 455-56.
At Daniel's hearing, the disciplinary officer considered the offense report detailing the incident, including a photographic exhibit of the tobacco, the written and telephonic statements of the charging officer, a witness statement by another inmate Weston Clayton, and Daniel's statement denying the allegations. (DP at 1-9.) The written statement of the charging officer, which was consistent with his telephonic statement taken during the hearing, provided verbatim:
I, Officer Olivo B. COIV was in the ODR in B.P. at which time notice that offender Daniel, Jason Lewis TDCJ-889632 had a small odor on Daniel's person. I Officer Olivo escorted Daniel to the back of the ODR and question said offender why he had an odor of smoke tobacco. Said offender Daniel stated "I smoke two rolled up cigarettes" in the offender restroom located in back of food service. At this time I Officer Olivo started an search of the area which I Officer Olivo COIV located one bag of Bugler tobacco with rolling papers inside of Daniel's shoes, he was then escorted to the line building. (DP at 3, 11.) (Grammatical errors in original).
Clearly, the disciplinary officer's decision was based on the offense report and the charging officer's written and telephonic statements. Thus, the hearing officer apparently found Daniel's denial of the charges and explanation of the events incredible, while finding the officer's version of the events credible. The disciplinary officer is entitled to make such determinations regarding the credibility and reliability of the evidence presented. See Smith v. Rabalais, 659 F.2d 539, 545-46 (5th Cir. 1981), cert. denied, 455 U.S. 992 (1982). Because there was some evidence to support the guilty finding, it does not appear that the disciplinary officer's decision was arbitrary or capricious. See Wolff, 418 U.S. at 564-66. Thus, there was sufficient evidence in the record to support the disciplinary officer's guilty finding.
In his third ground, Daniel contends his due process rights were violated because the grievance administrator did not review the "tape of evidence" from the disciplinary hearing in the appeals process. (Pet. at 7 Attach. A.) Deprivation of good time credit stemming from a disciplinary violation entitles an inmate to minimum procedural due process before, during, and after the disciplinary proceeding, however, the court finds no support for the proposition that an inmate is entitled to further due process in the context of an internal prison grievance process. Daniel was in no way prohibited from pursuing his Step I and Step 2 grievances, and, as a matter of prison rules and procedures for disciplinary offenders, it was within the discretion of the grievance administrator as to whether it was necessary to review the disciplinary hearing tape prior to disposition of Daniel's grievances. (Resp't Answer at Ex. C.)
In this context, due process requires: (1) advance written notice of the claimed disciplinary violation; (2) a written statement by the fact finder as to the evidence relied upon and the reasons for the disciplinary action taken; and (3) an opportunity to call witnesses and present documentary evidence in defense. Wolff, 418 U.S. at 563-66. It appears from the disciplinary records that Daniel was notified of the disciplinary charges on August 21, 2001. (DP at 1.) It also appears that Daniel requested and received counsel substitute for the hearing. ( Id. at 7.) Daniel entered a plea of not guilty to the charged offense and was given an opportunity to refute the charges. ( Id.) Finally, Daniel received a copy of the hearing officer's final report detailing the evidence he relied upon in finding Daniel guilty. ( Id. at I.) Thus, Daniel received all the due process afforded him.
In conclusion, this court finds that Daniel has failed to show that he has been denied a constitutionally protected interest. Accordingly, Daniel is not entitled to habeas corpus relief.
II. RECOMMENDATION
Daniel's petition for writ of habeas corpus should be denied.
III. 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 extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 11, 2002. 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 unobjectedto proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 11, 2002, 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) days 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.