Opinion
No. 3:01-CV-1630-M
December 5, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Parties: Petitioner, a state inmate currently incarcerated in the Neal Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID), filed this action as a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Douglas Dretke, Director of TDCJ-CID, is the respondent.
B. Procedural History: In 1998, petitioner was convicted of driving while intoxicated in Dallas County, Texas, and sentenced to ten years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) While incarcerated in the Wallace Unit of the TDCJ-CID, on May 1, 2001, petitioner was accused of intentionally damaging state-issued work boots by Officer Walker. ( See Offense Report, attached as page 2 of Ex. B to Answer.) The allegation resulted in a hearing on May 9, 2001, to permit petitioner to plead to the alleged infraction and determine his punishment, if any. ( See TDCJ Disciplinary Report . Hr'g Record attached as page 1 of Ex. B to Answer, hereinafter referred to as Disciplinary Report.) Petitioner was found guilty of the infraction and received cell and property restrictions for thirty days; ten extra duty hours; suspension of contact visits for a month; and reduction in line classification status. ( Id.) He was also assessed $17.63 in damages for the damaged property. ( Id.) Petitioner claims to have lost forty-one days of good-time credits as a result of the change in his line classification status. ( See Pet. ¶ 18.) The Disciplinary Report shows no loss of good-time credits. ( See Disciplinary Report at 1.)
Petitioner appealed the discipline through the prison grievance procedure. (Pet. ¶ 19; see also, Step 1 and Step 2 Offender Grievance Forms attached to Answer.)
In August 2001, petitioner filed the instant action. (Pet. at 1, 9.) He challenges the disciplinary proceeding (Case No. 20010242153) and the imposed punishment on three grounds: (1) he was denied effective assistance of counsel during the grievance procedures; (2) his rights to due process were violated because he was charged for damage to boots which were not produced as evidence and which were not given to him despite his payment for them; and (3) Officer Young could verify that the boots were damaged when he received them. (Pet. at 2, 5, 7.) On August 24, 2001, the Court granted petitioner permission to proceed in forma pauperis and directed respondent to file an answer. On September 28, 2001, respondent filed an answer. ( See Answer at 1.)
C. Exhaustion: Respondent concedes that petitioner has sufficiently exhausted his state remedies by proceeding through the two-step grievance procedure afforded by the prison facility. Because petitioner challenges a disciplinary proceeding, he is not required to file a state application for writ of habeas corpus. See Ex parte Palomo, 759 S.W.2d 671, 674 (Tex.Crim.App. 1988) (recognizing that the Texas Court of Criminal Appeals does not entertain "matters such as loss of good time credit, disciplinary proceedings and inmate classification by way of a writ of habeas corpus").
II. DUE PROCESS
Petitioner claims that the disciplinary hearing and resulting punishment violate his right to due process. (Pet. at 7.) Specifically, he complains about being charged $17.63 for boots which were not produced as evidence and for which he did not receive an ownership interest despite his payment for them. ( Id.) He also complains that Officer Young could verify that the boots were damaged when he received them. ( Id.)
A. Requiring Payment for Damaged Property
Although petitioner specifically claims that requiring him to pay for the damaged boots violates his due process rights, such claim entitles petitioner to no habeas relief. Section 2254(a) provides that the "district court shall entertain an application for writ of habeas corpus . . . only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Requiring petitioner to pay for damaged property presents no claim that he is in custody in violation of the Constitution or laws or treaties of the United States. Thus, this claim is not cognizable under § 2254. Furthermore, because a favorable determination of the claim would not affect the timing of his release from prison, the proper vehicle for such claim is an action under 42 U.S.C. § 1983. See Car son v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997).
B. Verification by Officer Young
Petitioner also complains that Officer Young could verify his position that the boots were already damaged when issued to petitioner. (Pet. at 7.) The precise nature of petitioner's claim is unclear. Petitioner does not specifically allege that he was prevented from, calling Officer Young as a witness. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (an "inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals"). Petitioner's counsel interviewed Officer Young on May 7, 2001, prior to the hearing. ( See Service Investigation Work Sheet, attached as page 7 of Ex. B to Answer.) Officer Young gave a written statement that the boots were issued to petitioner on April 1, 2001, and that he saw the hole in the sole of the boot while searching petitioner on several days. ( See Inter-Office Communications, attached as page 8 of Ex. B to Answer.) Officer Young also stated that he questioned petitioner about the hole, and that petitioner told him that the boot had been issued to him that way. Id. Since Officer Young only verified that petitioner had previously claimed that the boots were already damaged when issued to him, counsel could have determined not to call him as a live witness. Further, there is no allegation or evidence that Officer Young's written statement was not presented or considered at the hearing.
Because petitioner does not specifically allege that he was prevented from calling Officer Young or presenting his statement, the Court liberally construes petitioner's claim as a general attack on the outcome of the hearing. However, "[f]ederal 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.'" Gibbs v. King, 779 F.2d 1040, 1044 (5th Cir. 1986); accord, McDuffie v. Estelle, 935 F.2d 682, 690 (5th Cir. 1991). Regardless of how petitioner's claim is characterized, the Court must consider whether petitioner's due process rights have been violated. See Wolff, 418 U.S. at 566 (holding that prohibiting a prisoner from presenting witnesses on his or her behalf at prison disciplinary hearings may violate the prisoner's due process rights); Adams v. Gunnell, 729 F.2d 362, 370 (5th Cir. 1984) (noting that, in the context of sufficiency of the evidence at a disciplinary hearing "due process is satisfied as long as the committee's decision is supported by `some facts' or `any evidence at all'").
Although lawful incarceration results in the loss of many rights and privileges that most citizens enjoy, states may create liberty interests that are protected by the due process clause. See Sandin v. Conner, 515 U.S. 472, 484-85 (1995); Madison, 104 F.3d at 767. These liberty interests are generally limited to matters which affect the amount of time served by a prisoner, such as lost good-time credits and eligibility for mandatory supervision. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison, 104 F.3d at 767. The Fifth Circuit has also recently recognized that there can be due process implications from an inmate's "confinement in extended lockdown" due to disciplinary action, but not due to his or her initial classification. See Wilkerson v. Stalder, 329 F.3d 431, 434-36 (5th Cir. 2003). Wilkerson reiterated the test set forth in Sandin:
[Although the] States may under certain circumstances create liberty interests which are protected by the Due Process Clause . . . these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.329 F.3d at 434 (quoting Sandin, 515 U.S. 483-84).
In this case, contrary to petitioner's claim, he lost no good-time credits as punishment for his disciplinary infraction. ( See Pet. ¶ 18; Disciplinary Report at 1.) He was not placed in extended lockdown. ( See Pet. ¶ 18; Disciplinary Report at 1.) Instead, he was disciplined with thirty-day cell and property restrictions; ten extra duty hours; a thirty-day suspension of contact visits; and a reduction in line classification status. ( See Pet. ¶ 18; Disciplinary Report at 1.)
Because petitioner has lost no good-time credits and was not disciplined with confinement in extended lockdown, he has stated no due process violation cognizable under 28 U.S.C. § 2254. See Malchi, III F.3d at 957-58; Wilkerson, 329 F.3d at 434-36. The due process clause "does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner." See Sandin, 515 U.S. at 478. Disciplinary restrictions that alter the conditions of confinement do not implicate due process protection unless they represent the type of atypical, significant deprivation in which a state might create a liberty interest. See id. at 486 (holding that thirty days of solitary or segregated confinement does not invoke due process protections); Malchi, 211 F.3d at 958 (holding that thirty-day loss of commissary privileges and cell restriction did not implicate due process concerns); Madison, 104 F.3d at 768 (same). Furthermore, "[i]nmates have no protectable property or liberty interest in custodial classifications." Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). Thus, petitioner's claim that his change in line classification status resulted in a loss of credits, ( see Pet. ¶ 18.), is not cognizable. Assigning extra duty hours and temporarily suspending contact visits likewise do not implicate due process. In short, the discipline that petitioner received relevant to this case does not represent a significant, atypical deprivation. Therefore, such restrictions and other discipline are not penalties in which a state might create a liberty interest. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768.
Petitioner has established no liberty interest sufficient to justify relief. Accordingly, this claim should be dismissed.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that he was denied the effective assistance of counsel at his disciplinary hearing. (Pet. at 7.) He states that counsel refused to assist or provide him with necessary forms necessary to appeal the imposed discipline. (Id.) He further states that counsel did not have the accusing officer produce the damaged boots to support the allegations against him. ( Id.) To the extent that petitioner complains of the failure to call Officer Young to testify at the hearing, the Court also considers this claim as implicating the effectiveness of counsel at the hearing.A prison inmate has no constitutional right to either retained or appointed counsel in a disciplinary proceeding. Baxter v. Palmigiano, 425 U.S. 308, 315, (1976); Enriquez v. Mitchell, 533 F.2d 275, 276 (5th Cir. 1976). Because there is no constitutional right to counsel in a disciplinary proceeding, the prisoner cannot be deprived of effective assistance of counsel, even where counsel or "substitute counsel" is appointed. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); accord Blankenship v. Johnson, 118 F.3d 312, 316 (5th Cir. 1997) (holding that claim of ineffective assistance of counsel must be predicated on underlying right to the assistance of counsel). Thus, petitioner has failed to show that the disciplinary action taken against him was constitutionally infirm due to any ineffective assistance of counsel.
In many prison disciplinary proceedings, a non-lawyer advocate, known as "substitute counsel" is appointed to assist the inmate in presenting his defense.
IV. EVIDENTIARY HEARING
Upon review of the pleadings filed herein, an evidentiary hearing appears unnecessary.
V. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the District Court DENY with prejudice petitioner's application for habeas corpus relief.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).