Opinion
Civil Action No. 6:06CV211.
June 5, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Tommy Earl Harrell, an inmate confined at the Beto Unit of the Texas prison system, proceeding pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit pursuant to 42 U.S.C. § 1983. The cause of action was referred for findings of fact, conclusions of law and recommendations for the disposition of the case.
The complaint was filed on May 4, 2006. The Plaintiff complained about a prison disciplinary case where he was charged with participating in a riot. On October 10, 2005, he was found guilty. His punishment consisted of the loss of commissary and recreation privileges for 45 days, cell restrictions for 45 days and remain at Line Class 3. The disciplinary case was upheld on appeal in grievance procedures. The Plaintiff asserted that he did not participate in the riot.
The complaint must be dismissed for two reasons. First of all, an inmate must have a protected liberty interest in order to obtain relief in federal court. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997) (citations omitted). In Texas, an inmate must have lost good time and be eligible for mandatory supervision in order to have a protected liberty interest. Id. at 768-69. See also Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). Cell restrictions, loss of recreation and commissary privileges, and a reduction in classification do not involve a protected liberty interest. Madison v. Parker, 104 F.3d at 768; Malchi v. Thaler, 211 F.3d at 958. The punishment the Plaintiff received did not involve a protected liberty interest in order to trigger the protection of the Constitution.
The civil rights lawsuit would have to be dismissed even if the punishment the Plaintiff received implicated a protected liberty interest because he failed to show that the decision had been overturned. Edwards v. Balisok, 520 U.S. 641, 648 (19970; Bridges v. Lee, 124 Fed. Appx. 225, 226 (5th Cir. 2005). The facts as alleged fail to state a claim upon which relief may be granted and is frivolous in that it lacks any basis in law and fact. The complaint should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1).
Recommendation
It is therefore recommended that the complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915A(b)(1).
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n., 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.