For the purposes of this FCR only, however, the Court will assume the truth of Pimpton's allegation that he was wrongfully convicted in the disciplinary hearing. Rehearing a disciplinary case does not implicate constitutional protections against double jeopardy, which apply only in criminal prosecutions. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”); see also Sanchez v. Allen, 611 Fed.Appx. 792, 796 (5th Cir. 2015) (unpublished) (“[T]he constitutional proscription against double jeopardy does not apply to [the inmate's] disciplinary proceeding.”); Turner v. Johnson, 46 F.Supp.2d 655, 666 (S.D. Tex. 1999) (“It is well settled that prison disciplinary proceedings do not constitute criminal prosecutions. Hence, they do not implicate the Double Jeopardy Clause, as its applicability is limited to proceedings that are essentially criminal in nature.”)
He appears to allege that he was denied commissary privileges while in the housing status he calls “SOS,” saying that “by policy we are permitted a spend every 14 days.” The denial of commissary privileges does not implicate any constitutional rights. See, e.g., Sanchez v. Allen, 611 Fed.Appx. 792, 2015 U.S. App. LEXIS 6751, 2015 WL 1843542 (5th Cir., April 23, 2015); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). Although Plaintiff complains of a violation of “policy,” the Fifth Circuit has held that a failure to follow TDCJ regulations does not rise to the level of a constitutional claim.
Similarly, the denial of privileges (such as commissary, visitation, and time out of one's cell) does not rise to the level of a liberty interest protected by due process. See Sanchez v. Allen, 611 Fed.Appx. 792, 794 (5th Cir. 2015) (per curiam). Likewise, even when the deprivations described above violate department of corrections rules, the inmate is not entitled to relief under 42 U.S.C. § 1983.
See Sanchez v. Allen, 611 Fed.Appx. 792, 794 (5th Cir. 2015) (per curiam). Likewise, even when the deprivations described above violate department of corrections rules, the inmate is not entitled to relief under 42 U.S.C. § 1983.
To the extent Edwards complains that the prison disciplinary proceedings violated the Double Jeopardy Clause, the Fifth Circuit has been clear that “the constitutional proscription against double jeopardy does not apply to...disciplinary proceeding[s].” Sanchez v. Allen, 611 Fed.Appx. 792, 796 (5th Cir. 2015), citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974). C. Exercise of Supplemental Jurisdiction Should be Declined
The court agrees with the defendants that the existing allegations regarding the mishandling of meal trays do not rise to this level. See, e.g., Sanchez v. Allen, 611 Fed.Appx. 792, 795 (5th Cir. 2015) (holding that an inmate's “placement on the food-loaf diet for seven days” did not implicate a liberty interest under Sandin); Cox v.Benedetti, 114 Fed.Appx. 939 (9th Cir. 2004)
This allegation is entirely conclusory and speculative, and as such cannot sustain a claim against Director Kelly. Sanchez v. Allen, 611 Fed.Appx. 792, 2015 U.S. App. LEXIS 6751, 1843542 (5th Cir., April 23, 2015) (conclusory and speculative allegations of retaliation do not give rise to an inference of retaliatory intent), citingWoods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); Ibenyenwa v. Wells, slip op. no. 21-40241,2022 U.S. App. LEXIS 3663, 2022 WL 413941 (5th Cir., February 10, 2022) (conclusional assertions are inadequate to state a claim of retaliation).
His double-jeopardy claim also fails because prison disciplinary hearings are not criminal proceedings and do not implicate double jeopardy concerns. See Wolff, 418 U.S. at 556; Sanchez v. Allen, 611 Fed.Appx. 792, 796 (5th Cir. 2015). Finally, his claim that TDCJ failed to follow its own policy during the disciplinary proceeding or appeal does not raise a federal constitutional issue without a showing from the petitioner that minimum constitutional standards were not satisfied.
Nunez v. Ramirez, No. 09-413, 2010 WL 1222058, at *5-6 (S.D. Cal. Mar. 24, 2010) (an inmate's direct, face-to-face verbal confrontation with an officer presents a danger of a disturbance and a disruption to institutional order and discipline; therefore, it is not protected speech and cannot support a First Amendment retaliation claim).See Morgan v. Moore, No. 05-113, 2005 WL 1334621, at *2 (E.D. Tex. June 6, 2005), citing Freeman v. Texas Dept of Criminal Justice, 369 F.3d 854 (5th Cir. 2004) (an inmate's statements made to an officer during an argument were not protected speech); Sanchez v. Allen, No. 13-25, 2013 WL 5829156, at *5 (E.D. Tex. Oct. 29, 2013), aff'd, 611 Fed.Appx. 792 (5th Cir. 2015) (openly criticizing an officer is not constitutionally protected speech that may support a retaliation claim). See also Carl v. Griffin, No. 08-4981, 2011 WL 723553, at *5 (S.D.N.Y. Mar. 2, 2011) (“The plaintiff's brief and isolated verbal [encounter with the defendant] does not constitute protected First Amendment speech [because] [t]o construe it as such would elevate every verbal exchange between a prison employee and a prisoner to the level of protected speech under the First Amendment.”) (internal quotation marks and citation omitted); Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010) (a prisoner's face-to-face verbal confrontation about the conditions of his confinement was not protected speech); Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (holding that prisoner's characterization of hearing officer as a “foul and corrupted bitch” violated prison regulation prohibiting insolent behavior and was not protected by the First Amendment); see also, e.g., Brown v. Hannah,
(an inmate's direct, face-to-face verbal confrontation with an officer presents a danger of a disturbance and a disruption to institutional order and discipline; therefore, it is not protected speech and cannot support a First Amendment retaliation claim). See also, Morgan v. Moore, No. 05-113, 2005 WL 1334621, at *2 (E.D. Tex. June 6, 2005) (citing Freeman v. Texas Dept of Criminal Justice, 369 F.3d 854 (5th Cir. 2004) (an inmate's statements made to an officer during an argument were not protected speech); Sanchez v. Allen, No. 13-25, 2013 WL 5829156, at *5 (E.D. Tex. Oct. 29, 2013), aff'd, 611 Fed.Appx. 792 (5th Cir. 2015) (openly criticizing an officer is not constitutionally protected speech that may support a retaliation claim); Carl v. Griffin, No. 08-4981, 2011 WL 723553, at *5 (S.D.N.Y. Mar. 2, 2011) ("The plaintiff's brief and isolated verbal [encounter with the defendant] does not constitute protected First Amendment speech [because] [t]o construe it as such would elevate every verbal exchange between a prison employee and a prisoner to the level of protected speech under the First Amendment.") (internal quotation marks and citation omitted); Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010) (a prisoner's face-to-face verbal confrontation about the conditions of his confinement was not protected speech);