Opinion
NO. 3-04-CV-0419-M
April 8, 2004
ORDER
This pro se prisoner case has been remanded to the magistrate judge for further consideration in light of petitioner's objections to the report and recommendation issued on March 22, 2004. In particular, petitioner objects to the recommendation that his civil rights complaint be construed as an application for writ of habeas corpus and that the writ be summarily denied for failure to allege the deprivation of a constitutionally-protected liberty interest.
The Fifth Circuit has adopted a "bright-line rule" for determining whether a challenge to a prison disciplinary conviction should be brought as a civil rights action under 42 U.S.C. § 1983 or an application for writ of habeas corpus under 28 U.S.C. § 2254. If a favorable determination of the claim would not automatically entitle the prisoner to accelerated release, the proper vehicle is a section 1983 suit. Payne v. Dretke, 80 Fed.Appx. 314, 2003 WL 22367564 at *1 (5th Cir. Oct. 17, 2003); Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). However, if the prisoner seek a determination that he is entitled to immediate release or a speedier release from custody, the action is properly constructed as a section 2254 habeas proceeding. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973). Here, petitioner maintains that his disciplinary conviction prevented him from being released to mandatory supervision on October 14, 2003. (Pet. Obj. at 3). Instead, his release date has been postponed until June 30, 2005. ( Id.). Taking petitioner's allegation at face value, the court adheres to its view that this action must be construed as a habeas proceeding. Accordingly, the district clerk is directed to docket this case as an application for writ of habeas corpus, with Michael W. Johnson as petitioner and Douglas Dretke, Director of the TDCJ-CID, as respondent. See RULES GOVERNING SECTION 2254 CASES, Rule 2(a) (state officer having custody of the applicant shall be named as respondent).
The gravamen of petitioner's claim is that he was denied release to mandatory supervision as a result of a prison disciplinary conviction. ( See Pet. Obj. at 2). However, petitioner previously acknowledged that the only punishment assessed was 10 days recreation restriction. ( Spears Quest. #1). The court still questions whether this punishment gives rise to a constitutionally-protected liberty interest, even if petitioner ultimately was denied early release. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) (prisoner does not have protected liberty interest in obtaining early release unless he has lost accrued good time credits and is eligible for mandatory supervision). Nevertheless, in order to decide this case on a full record, the court will require respondent to answer the habeas petition and submit a copy of petitioner's parole file and documents relating to his disciplinary conviction.
Respondent is directed to file an answer in this case by June 7, 2004 . The answer shall comply with Rule 5 of the Rules Governing Section 2254 Cases. A true copy of the answer and any supporting materials shall be served on petitioner at his address. A complete copy of petitioner's parole file and all records relating to his disciplinary conviction shall be filed with the answer. Any motions for extension of time based on the unavailability of these records shall include an affidavit stating when the records were requested from appropriate state officials, the response to that request, and the additional time necessary to obtain those records. No further pleadings or evidence will be permitted without leave of court.
A copy of petitioner's complaint and this order shall be sent to respondent and the Attorney General of the State of Texas, unless an agreement has been reached with the Attorney General for providing alterative means of service.
SO ORDERED.