Opinion
Civil Action No. 1:05cv624.
February 7, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Gregory James Slaughter, an inmate confined at the Stiles Unit of the Texas Department of Criminal Justice, Institutional Division, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge, for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Discussion
Petitioner contests the validity of a prison disciplinary case received May 16, 2005. As a result of the disciplinary offense, petitioner received the following punishment: 30 days recreation restriction; 30 days commissary restriction; a reduction in time-earning classification from S-3 to L-2, a loss of 365 days good conduct time; and a reduction in custody classification from G-2 to G-4.
Petitioner asserts the following grounds for review: (1) false statements were produced during the disciplinary hearing; (2) he was denied due process because prison officials refused to comply with the standards and procedures established for drug testing and (3) he was denied due process because he was not given an alternate drug test.
Analysis
Denial of Due Process
Prisoners charged with rule violations are entitled to certain due process rights under the Fourteenth Amendment when the disciplinary action may result in a sanction that will impose upon a liberty interest. State-created liberty interests protected by the Due Process Clause are generally limited to freedom from restraint imposing an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995).
In Sandin, the Court adopted a new and different methodology for determining whether a state has created a protected liberty interest to benefit prison inmates. Id. at 2297-2300. Rather than focusing on the presence or absence of mandatory statutory or regulatory language, [See, e.g., Hewitt v. Helms, 459 U.S. 460 (1983).] the Supreme Court determined that the reviewing court should consider the nature of the challenged state action and whether it involved such a significant departure from normal prison conditions that the state might have conceivably created a liberty interest. Id. at 2299.
Protected "interests are generally limited to state-created regulations or statutes which affect the quantity of time rather than the quality of time served by a prisoner." Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). In Texas, prisoners eligible for release on mandatory supervised release, may have a protected liberty interest in previously-earned good conduct time. See Kimbrell v. Cockrell, 311 F.3d 361, 362 (5th Cir. 2002); Malchi v. Thalter, 211 F.3d 953, 956-58 (5th Cir. 2000). However, being placed in disciplinary confinement, losing commissary and property privileges for thirty days, and remaining at the same time earning class are not sanctions which impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 115 S. Ct. at 2299. See also Madison, 104 F.3d at 768 (concluding that imposing thirty days of commissary and cell restrictions as punishment constitutes mere changes in the conditions of a prisoners confinement and do not implicate due process concerns); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) ("the mere opportunity to earn good-time credits [does not] constitute a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause."), cert. denied, Luken v. Johnson, 116 S. Ct. 1690 (1996); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir.) ("An inmate has neither a protectible property nor liberty interest in his custody classification. . . ."), cert. denied, 488 U.S. 985 (1988).
The due process that an inmate must receive in a disciplinary hearing is: (1) written notice of the charges against him at least twenty-four hours before the hearing, (2) a written statement of the factfinders as to the evidence relied on and the reasons for the disciplinary action taken, and (3) the opportunity to call witnesses and present documentary evidence in his defense, unless these procedures would create a security risk in the particular case. Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000); Walker v. Navarro County Jail, 4 F.3d 410, 412 (5th Cir. 1993); Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 2978-80, 41 L. Ed. 2d 935 (1974).
Here, petitioner complains that he was reduced in time-earning classification and custody; placed on commissary and recreation restriction, and lost 365 days good conduct time. However, petitioner is not eligible for release on mandatory supervision. Thus, the punishment did not result in an extension of his confinement. Under these circumstances, due process concerns are not implicated and prison officials were not required to afford petitioner due process at the disciplinary hearing.
Petitioner also complains that the evidence did not support the conviction. "Prison disciplinary proceedings are overturned only where no evidence in the record supports the decision." Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001). "Determining the believability of the testimonies presented at the hearing is left to the discretion of the hearing officer." Hudson v. Johnson, 252 F.3d 534, 537 (5th Cir. 2001). The information provided in a written incident report standing alone can satisfy the "some evidence" standard. Id. at 536-537. In this case, the incident report, as well as the test results, provides some evidence to support the hearing officer's finding. Accordingly, Petitioner's claim should be denied.
Recommendation
The petition for writ of habeas corpus should be denied.
Objections
Within ten (10) days after being served with a copy of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within ten days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.