IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10542

Summary Calendar

PETER J. MCMAHON,

Petitioner-Appellant,

versus

REBECCA TAMEZ, Warden, FCI-Fort Worth,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

No. 4:10-CV-130

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Peter McMahon, federal prisoner # 06394-062, appeals the denial of his 28

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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No. 10-10542

U.S.C. § 2241 application challenging a disciplinary determination that he had

violated prison regulations by (1) possessing “anything not authorized” (i.e., tobacco) and (2) refusing to obey a staff member’s order. He also moves for sanctions against the state to strike its brief.

McMahon argues that the state should be collaterally or equitably estopped from raising any defenses that were not presented during the administrative remedy process. That argument lacks any merit.

McMahon asserts that the unit disciplinary committee (“UDC”), which

handles moderate offenses, should not have referred his moderate offense to the

disciplinary hearing officer (“DHO”), who had the authority to impose more severe punishments, such as the loss of good time credit, than did the UDC. A

prison’s violation of its own regulations, however, does not in itself constitute a

constitutional violation. Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000).

McMahon contends that his due process rights were violated when he did

not receive copies of a prison memorandum or e-mail before or during the disciplinary hearing, nor did he even know of the document’s existence until after he

read the DHO’s report. Because the record indicates that McMahon was afforded all the due process protections required by Wolff v. McDonnell, 418 U.S. 539,

563-66 (1974), he has not shown that the district court erred in determining that

his due process rights were not violated under Wolff. See id.; Stewart v. Thigpen,

730 F.2d 1002, 1007 n.3 (5th Cir. 1984). To the extent that McMahon also posits

that he was entitled to receive the memorandum before the disciplinary hearing

under Brady v. Maryland, 373 U.S. 83 (1963), that issue lacks merit, because he

has not shown that the memorandum was favorable to him or that there was a

reasonable probability that the result of the proceeding would have been different had the memorandum been disclosed to him beforehand. See Lawrence v.

Lensing, 42 F.3d 255, 257 (5th Cir. 1994); United States v. Bagley, 473 U.S. 667,

682 (1985).

McMahon maintains that the evidence was not sufficient to find him guil2

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No. 10-10542

ty, because (1) officers did not test the cigarette at issue to determine whether

it contained tobacco, rather than tea leaves, so that evidence was unreliable;

(2) only a photocopy of the cigarette was presented; (3) there was no physical evidence of loose leaves of tobacco; (4) the DHO’s determination that McMahon was

an admitted smoker was based on the DHO’s past experience with him, rather

than any evidence presented at the hearing; (5) the DHO did not make any findings concerning the issue whether McMahon’s actions met the prison regulation’s requirement that the item possessed not be “issued to [the inmate] through

regular channels”; and (6) McMahon’s conduct was excused because it was the

result of side effects of Elavil, which he had taken shortly before the incident.

McMahon has not shown that the district court erred in determining that the

DHO’s finding of guilt was supported by “some evidence” and was thus not arbitrary or capricious. See Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994).

AFFIRMED. ALL OUTSTANDING MOTIONS DENIED.

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