Opinion
3:03-CV-1638-M
November 18, 2003
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 District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. Presently before court is Petitioner's motion for a temporary restraining order (TRO), filed on November 7, 2003. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
On July 21, 2003, Petitioner Kelvin Jones filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging disciplinary case number 20020305752, which found him guilty on July 31, 2002, of assaulting Officer D. McCoy by grabbing him by the shirt and lunging toward him. (Respondent's answer at Exh. B). Following two extensions of time, Respondent filed an answer on October 21, 2003.
In his motion for a TRO, Petitioner alleges that he was transferred to the Dolph Briscoe Unit on August 14, 2003, shortly before the initial deadline for the filing of an answer in this case. According to Petitioner his transfer was intended to harass him and unnecessarily delay the disposition of this case. During the next twenty days, Petitioner allegedly received bogus disciplinary cases, was stabbed three times, and was denied medical care following an assault on October 3, 2003. Although Petitioner filed a "life endangerment complaint" with the Warden of the Dolph Briscoe Unit, no investigation was ever conducted. Moreover, Petitioner was transferred shortly after the filing of the "life endangerment complaint" to the McConnell Unit, where he was immediately placed in pre-hearing detention due to threats by a prison gang that had learned of Petitioner's presence the same day of his transfer. Petitioner requests access to a library and transfer to a unit outside the "region" where either the McConnel and Dolph Briscoe Units are located.
A party seeking a temporary restraining order or preliminary injunction must prove each of the following elements: (1) that there is a substantial likelihood that the movant will prevail on the merits; (2) that there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) that the threatened injury outweighs the threatened harm to the defendant; and (4) that the granting of the preliminary injunction will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987).
Petitioner's motion for a TRO appears to be incomplete. It ends with an incomplete sentence on the back side of page five. (See Motion for TRO in the original file). Moreover, it includes neither a signature nor a certificate of service. Despite these deficiencies, the motion for TRO should be denied because Petitioner cannot establish any of the above elements. Moreover, the motion relates to events which have occurred since the filing of this federal habeas action, and which are unrelated to the substance of the federal habeas claims at issue in the petition.
The scanned version of the motion only includes the front of the five pages, which Petitioner submitted for filing.
Insofar as Petitioner challenges his transfers, the bogus charges, and the stabbing incidents as retaliatory in nature, his claims are not cognizable in this federal habeas action. See Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (setting elements to state a valid claim for retaliation under 42 U.S.C. § 1983). The same applies to his claim of denial of medical care following the October assault, seeEstelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976) (setting out elements to state a claim for the denial of medical care under 42 U.S.C. § 1983); Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997) (same), and to his claim of denial of access to the law library since his transfer to the McConnell Unit, see Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 2182 (1996) (setting out elements of denial of access to the courts); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). With respect to his request that he be transferred to another region within TDCJ-CID, his claim is not cognizable in either a habeas or a civil rights action. An inmate does not have a constitutional protected interest in confinement in a particular correctional facility. See Olim v. Wakinekona, 461 U.S. 238, 244-45, 103 S.Ct. 1741, 1745 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538 (1976) Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996); Adams v. Gunnell, 729 F.2d 362, 368 (5th Cir. 1984).
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter an order denying Petitioner's motion for a temporary restraining order.
The Clerk will mail a copy of this recommendation to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.