* Pursuant to 5 TH C IR

. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 27, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-30909

Summary Calendar

DENARD DARNELL NEAL,

Petitioner-Appellant,

versus

CARL CASTERLINE,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:03-CV-1743-FAL

Before GARWOOD, STEWART and PRADO, Circuit Judges.

PER CURIAM: *

Denard Darnell Neal, federal prisoner # 23843-008, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus

petition, challenging his prison disciplinary conviction of

attempted assault of a staff member. Neal was sentenced to lose 27

days of good-conduct time and to other penalties. Neal contends

that he was denied due process at his disciplinary hearing in2

several respects.

The incident repo rt alleged that on January 14, 2003, as

Neal’s cell door wa s being opened, he rushed toward the door and

attempted to strike Officer Reed with his upper body. After being

placed back in his cell, Neal did it again. Reed reported that

Neal then had to be physically pushed back into his cell. In his

habeas petition Neal alleged, however, that on that date he was

assaulted by three members of the prison staff and that Reed then

falsely charged Neal with attempted assault as a cover-up.

A federal prisoner inmate has a liberty interest in his

accumulated good-time credit. S ee Henson v. U.S. Bureau of

Prisons , 213 F.3d 897, 898 (5th Cir. 2000). “When a prisoner has

a liberty interest in good time credit, revocation of such credit

must comply with minimal procedural requirements.” Id . However,

“[p]rison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” W olff v. McDonnell

, 418 U.S. 539, 556

(1974).

“[T]he requirements of due process are satisfied if some

evidence supports the decision by the prison disciplinary board to

revoke good time credits.” S uperintendent, Mass. Corr. Inst. v.

Hill

, 472 U.S. 445, 455 (1985). Furthermore, a court’s

determination “whether this standard is satisfied does not require

examination of the entire record, independent assessm ent of the

credibility of witnesses, or weighing of the evidence.” Id

.

Nea l argues that he is entitled to relief because the3

disciplinary hearing officer (DHO) erroneously assumed that a

prison rule required an inmate to move to the back of his cell when

his cell door was being opened. Neal also asserts that the DHO

found that the attempted assault occurred inside the cell whereas

Officer R eed stated that it took place at the cell door. Neal

avers that both the DHO’s report and Reed’s incident report are

false.

Neal’s argument has no merit because the hearing report shows

that the DHO found the facts to be as stated in Reed’s incident

report and in other hearing evidence. It is immaterial whether

Neal violated a rule requ iring him to stand at the back of his

cell, because he was charged with attempted assault.

Neal complains that the DHO erred by relying on a memorandum

from a correctional officer who did not witness the incident. He

also asserts that the DHO relinquished control of the hearing to

the officer. This is refuted by the DHO’s report of the hearing,

which includes his findings and reasons for the decision. The DHO

stated that he based his decision on Reed’s report and testimony

and the eyewitness testimony of a prison counselor. This was fully

adequate evidence to support Neal’s conviction. S ee Hill

, 472 U.S.

at 455-56.

Neal contends that he was denied due process by the DHO’s

refusal to review the surveillance videotape of the incident. He

asserts that the tape shows that Officer Reed is lying. As proof,

he attached as an exhibit to his brief copies of six still photos

of the area outside his cell, made from the tape. Neal asserts4

that they show an officer pushing (assaulting) him.

The still photos are not conclusively favorable to Neal,

however. They also support Reed’s evidence, accepted by the DHO,

that Neal had to be physically pushed back into his cell.

Moreover, there is no indication that a ny of the tape shows what

happened inside N eal’s cell, which is where, Reed testified, the

offense took place. If the tape showed that, then Neal should have

filed relevant extracts from the tape as his exhibits

– apparently

h e had access to the complete tape. Accordingly, Neal has not

shown that the DHO’s refusal to review the videotape denied him due

process, i.e.

, fundamental fairness. S ee

, e.g.

, Neal v. Cain

, 141

F.3d 207, 214 (5th Cir. 1998).

Neal contends that he was denied due process because the DHO

failed to give him access to four memorandums used to find him

guilty. However, the report indicates that the DHO based Neal’s

conviction on evidence provided by Reed and the counselor. The

report does not advert to whether Neal asked to see these

memorandums, what they stated, or that Neal knew they existed. At

any rate, he has not shown or even argued that they had any effect

on the result of the hearing, or how the DHO may have

abused his discretion i n not providing Neal access to the

memorandums. See Wolff , 418 U.S. at 566 (discretion of prison

officials); Richards v. Dretke

, 394 F.3d 291, 294-96 (5th Cir.

2004); Smith v. Rabalais , 659 F.2d 539, 541, 546 (5th Cir. 1981).

Neal contends that he is entitled to relief beca use the

magistrate judge obtained relevant documents from prison officials5

without giving him access to them. He argues that this denied him

the right to challenge evidence the DHO used against him. This

lacks merit because Neal could have sought to obtain the record and

exhibits from this court for use in preparing his brief.

Furthermore, most if not all of the relevant evidence is summarized

in the DHO’s report, a copy of which Neal undoubtedly received.

See Hill

, 472 U.S. at 455; Richards v. Dretke

, s upra ; Smith v.

Rabalais

, supra

.

Neal argues that the magistrate judge adjudicated his case on

the merits without the parties’ consent pursuant to 28 U.S.C. §

636(c). This is refuted by the magistrate judge’s report, which

shows that he merely proposed findings and recommendations, and by

the district court’s final order that adopts the report.

Neal assert s that the magistrate judge violated 28 U.S.C. §

636 by denying his motion for discovery. Because Neal did not

appeal the magistrate judge’s ruling to the di strict court,

however, this court lacks jurisdiction to consider the issue. S ee

Colburn v. Bunge Towing, Inc. , 883 F.2d 372, 379 (5th Cir. 1988).

AFFIRMED.