Opinion
NO. 3-03-CV-0762-H
October 27, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Harold Lloyd Taylor, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner is serving a five-year prison sentence for possession of cocaine. While incarcerated at the Tulia Correctional Facility, petitioner was convicted of a disciplinary infraction. Punishment was assessed at recreation restriction for 45 days, loss of commissary privileges for 45 days, loss of 180 days of good time credits, and a reduction in time-earning status from L1 to L3. Petitioner challenged the results of this hearing through the prison grievance process. His grievances were denied. Petitioner then filed this action in federal court.
Petitioner originally brought this action in the Amarillo Division of the Northern District of Texas. Taylor v. Cockrell, No. 2-03-CV-0080. The case was transferred to the Dallas Division pursuant to 28 U.S.C. § 2254(d). See ORDER, 4/14/03.
II.
Petitioner challenges his disciplinary hearing and resulting conviction on multiple grounds. Succinctly stated, petitioner contends that: (1) the evidence was insufficient to establish a disciplinary infraction; (2) he was denied the right to call potential witness; and (3) the hearing decision was motivated by retaliation and racial animus.A.
The due process rights of prisoners are generally limited to freedom of restraint which "impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Restrictions which alter the conditions of confinement do not implicate due process. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (commissary and cell restrictions); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (same). A prisoner has a protected liberty interest in the loss of accrued good time only if he is eligible for release to mandatory supervision. Malchi, 211 F.3d at 957-58. See also Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 111 S.Ct. 2809 (1991) (Texas prisoners have no protected liberty interest in early release on parole).When a prisoner has a protected liberty interest in the loss of accrued good time credit, the revocation of such credit must comply with minimal procedural due process. Henson v. United States Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). See also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (prisoners entitled to "those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated"). These minimal requirements are: (1) written notice of the alleged disciplinary violation at least 24 hours prior to a hearing; (2) the ability to call witnesses and present documentary evidence when not unduly hazardous to institutional safety or correctional goals; and (3) a written statement of the hearing officer as to the evidence relied on and the reasons for any disciplinary action taken. Id., 94 S.Ct. at 2978-79. Federal habeas review of the sufficiency of the evidence to support a disciplinary conviction is extremely limited. Due process requires only "some evidence to support the findings made in the disciplinary hearing." Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). See also Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) (court must determine whether "any evidence at all" supports disciplinary action taken by prison officials); Van v. Johnson, 2001 WL 741724 at *2 (N.D. Tex. May 21, 2001) (Kaplan, MJ.), rec. adopted, 2001 WL 720504 (N.D. Tex. Jun. 21, 2001).
B.
The court initially observes that temporary recreation and commissary restrictions and a reduction in time-earning status do not implicate due process. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768. However, petitioner also lost 180 days of good time credit. Because petitioner is eligible for release to mandatory supervision, he has a protected liberty interest sufficient to justify the consideration of his claims. Malchi, 211 F.3d at 958-59.
Respondent acknowledges that petitioner's claims must be considered on the merits "because good time credit was taken away from Taylor and he is eligible for mandatory supervision." (Resp. Ans. at 9).
1.
Petitioner first contends that the evidence was insufficient to establish a disciplinary infraction because the hearing officer (1) ignored facts establishing self-defense, (2) failed to have a written investigation report presented at the hearing, and (3) withheld evidence that could have proven his innocence.The record shows that petitioner, along with three other African-American inmates, participated in a fight with several Hispanic offenders who entered their living area. (Resp. Ans., Exh. B at 2). The charging officer, C. Rodriguez, responded to the incident and observed petitioner "kicking unknown Hispanic offenders on the floor." ( Id.) Petitioner answered the charge by claiming self-defense, In a written statement presented to the hearing officer, petitioner wrote:
These men came into our Dorm to terrorize us as we were unaware of the situation at hand until it was to [sic] late. Sir, we did not invite them in. Nor did we open the doors that let them in. Sir, I know for a fact that just as we did to protect ourselves, you, sir, would have done no less if not more in a life threatening situation such as this. If being guilty of defending myself, defending my life, is a cause to be punished, then sir I am only guilty of that fact and that fact alone. If it were possible for me to walk away, I would have made that choice. I'm trying to go home. I was given no choice, especially in such closed confines and no way to get out. My back was up against a wall. You, sir, teach your children, I'm sure, these same values, to walk away. If at all possible and to defend themselves if need be. This for us was a need be situation. Sir, I ask that you way [sic] the evidence seen and heard and make an honest and just decision and find me not guilty of the charges against me seeing I was not the initiator of the offense, but a unwilling participant.
( Id., Exh. B at 5-6). A prison disciplinary hearing was held on November 8, 2002, five days after the incident occurred. Petitioner appeared at the hearing in person and through a counsel substitute. After advising petitioner of his right to present documentary evidence and call witnesses, the hearing officer reviewed petitioner's version of the facts. ( See Dis. Hrg. Tr. at 3-6). The hearing officer then heard from Officer Rodriguez, who testified that she observed petitioner kicking another inmate. ( Id. at 7-8). Petitioner, through his counsel substitute, asked Rodriguez on cross-examination if it appeared that petitioner was trying to defend himself against the other offenders in the dorm. Rodriguez responded, "It appeared all offenders were trying to defend themselves." ( Id. at 9). Petitioner declined to ask Rodriguez any other questions or elaborate on the facts contained in his written statement. ( Id. at 4, 10).
Petitioner objects to the uncertified transcript of the disciplinary hearing provided by respondent on multiple grounds, including the poor quality of the underlying tape recording. After reviewing the transcript and listening to the tape, the court determines that the transcript is substantially accurate in all materials respects. The inaudible omissions reflected in the transcript are not relevant to the claims raised by petitioner or the court's resolution of this case.
Based on this evidence and statements from other inmates, the hearing officer found petitioner guilty of a disciplinary infraction. The hearing officer noted that all the evidence pointed to petitioner's involvement in a fight with multiple inmates which, under prison regulations, constitutes a riot. Other than his own statement, there was no evidence corroborating petitioner's claim of self-defense. ( Id. at 12). A written decision detailing the evidence and explaining the reasons for the disciplinary taken against petitioner was issued immediately following the hearing. (Resp. Ans., Exh. B at 1).
Three inmates, Quintice Thomas, Tracy Walker and Michael Boyd, submitted witnesses statements to the hearing officer. Each statement recites that a fight broke out after several Hispanic offenders came into their living area. However, none of the statements support petitioner's claim of self-defense or even mention his involvement in the altercation. ( See Resp. Ans., Exh. B at 8-10).
It is abundantly clear from the record that the hearing officer gave careful consideration to petitioner's version of the facts, the testimony of the charging officer, and the witness statements. The offense report alone, which states that petitioner kicked another offender "on the floor," constitutes the evidence necessary to establish a disciplinary infraction. See Hudson v. Johnson, 242 F.3d 534, 537 (5th Cir. 2001) (incident report is "some evidence" of guilt); Christoph v. Cockrell, 2003 WL 21750705 at *2 (N.D. Tex. Jul. 24, 2003) (Kaplan, MJ.) (same). Although petitioner may disagree with this decision, he has failed to state a claim for habeas relief.
2.
Next, petitioner complains that he was not permitted to call three witnesses who allegedly participated in the riot. This claim fails for two reasons. First, although petitioner contends that the testimony of inmates Adams, Robinson and Ricks "was vital," he has not proffered their testimony to the court. Christoph, 2003 WL 21750705 at *2 (petitioner must proffer missing testimony). Second, as petitioner acknowledges, he never requested that these witnesses appear at the disciplinary hearing. This ground for relief is without merit and should be overruled.
The court cannot agree with petitioner that "it was obvious to the [hearing officer] that he wanted the above named offender(s) present to testify." (Pet. Hab. Br. at 9).
3.
Finally, petitioner claims that the hearing decision was motivated by retaliation and racial animus. The Fifth Circuit has recognized that "[t]he prospect of endless claims of retaliation on the part of inmates would disrupt prison officials in the discharge of their most basic duties. Claims of retaliation must therefore be regarded with skepticism, lest federal court embroil themselves in every disciplinary act that occurs in state penal institutions." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), quoting Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994), cert. denied, 115 S.Ct. 1371 (1995). This same rationale applies to allegations of discrimination. Here, petitioner offers nothing more than conclusory assertions that his disciplinary conviction was the result of retaliation and racial bias. Absent evidence in the record to support such a claim, petitioner is not entitled to habeas relief. See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983); Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982), cert. denied, 103 S.Ct. 2419 (1983).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.