IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

ROBERT MICHAEL SHAW, )

TDCJ No. 610377, )

Petitioner, )

)

v. ) 7:03-CV-050-R

)

DOUGLAS DRETKE, Director, )

Texas Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

MEMORANDUM OPINION AND ORDER

ON THIS DATE, came on to be considered the papers and pleadings filed in this action and

the Court finds and orders as follows:

This is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by an

inmate confined in the James V. Allred Unit of the Texas Department of Criminal Justice (“TDCJ”)

in Iowa Park, Texas.

Petitioner seeks to challenge the validity of disciplinary action no. 20030072090 which was

taken against him at the Allred Unit. Amended Petition ¶ 17. Shaw was found guilty of failing to

obey an order to stop talking. Respondent’s Answer with Brief in Support, Exhibit B at p.1

(hereinafter “Respondent’s Exhibit ___ at p. ___”). As a result of the charge, he lost 10 days of

previously earned good time credits, his custodial classification level was reduced and he was placed

on 45 days of recreation, commissary, property and cell restrictions. Id. In support of his petition,

Shaw presents the following grounds for relief:

1. the disciplinary report was not processed pursuant to a proper investigation;

2. the “no talking in hallway” signs are vague and overbroad;

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

WICHITA FALLS DIVISION

FILED

September 8, 2005

CLERK, U.S. DISTRICT COURT

 

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3. the evidence was insufficient to sustain a finding of guilt;

4. the disciplinary report was filed in a conspiring and retaliatory manner, and;

5. the penalties imposed were excessive and too severe.

Amended Petition ¶¶ 20.A-E.

The due process rights of prisoners are generally limited to freedom from 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 (1995). Restrictions which

merely 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.) (finding that Texas prisoners have no protected liberty

interest in early release on parole), cert. denied, 501 U.S. 1210, 111 S.Ct. 2809 (1991).

When a prisoner has a protected liberty interest in the loss of accrued good time credits, the

revocation of such credits must comply with minimal procedural due process. Henson v. United

States Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000); see Wolff v. McDonnell, 418 U.S. 539,

557, 94 S.Ct. 2963, 2975 (1974) (holding that prisoners are 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 opportunity 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 upon

 

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and the reasons for any disciplinary action taken. Wolff, 418 U.S. at 563-68, 94 S.Ct. at 2978-80.

The second requirement under Wolff is limited in that confrontation and cross-examination of

witnesses is not constitutionally required. Id. at 567-68, 94 S.Ct. at 2980; Wade v. Farley, 869

F.Supp. 1365, 1375 (N.D. Ind. 1994). Additionally, prison officials may, at their discretion, limit

the number of witnesses called without offering an explanation to the prisoner. Wolff, 418 U.S. at

563-68, 94 S.Ct. at 2978-80.

The Court initially observes that a reduction in custodial classification and temporary

restrictions on privileges as a result of a prison disciplinary action do not implicate due process

concerns. See Malchi, 211 F.3d at 958; Madison, 104 F.3d at 768. However, Petitioner lost

previously earned good-time credits and he is eligible for release to mandatory supervision.

Amended Petition ¶¶ 16 & 18. Therefore, he has a constitutionally protected liberty interest

sufficient to justify the consideration of his petition on the merits. See Malchi, 211 F.3d at 958-59.

In his first ground for relief, Shaw claims that the investigating officer, Sgt. Matthew, had

instructed the charging officer, J. Boyett, to file the disciplinary charge. He argues that, because the

investigating officer had instructed the charging officer to write the report, the officers were in

violation of TDCJ policy which prohibits the charging officer from investigating the incident.

Amended Petition, Attached p.1. Shaw further alleges that the charge was fabricated, that the

charging officer lied during the hearing and that the hearing officer refused to believe him when he

accused the charging officer of lying. Id. at p. 2.

It is well settled that a prison authority’s failure to follow internal rules or administrative

procedures does not, in itself, give rise to any issue of constitutional magnitude as long as minimum

constitutional requirements are met. E.g. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996);

 

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Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Shaw has not shown that such a failure,

if any, on the part of TDCJ officials, resulted in any constitutional infirmity. Therefore, he is not

entitled to relief on his claim that the investigation officer was, in reality, the charging officer.

Shaw’s additional allegation relating to the veracity of the charging officer’s report and testimony

will be addressed below under Shaw’s sufficiency-of-the-evidence claim.

Next, Shaw claims that the “no talking in hallway” signs are vague, overbroad and tend to

inhibit free speech. Amended Petition, Attached p. 2. He submits that TDCJ’s Orientation

Handbook states that “no loud talking or horseplay will be allowed,” a rule which is in direct conflict

with the no-talking signs. Id. He argues that, because talking is permitted pursuant to the

Orientation Handbook, he was punished for a non-existent rule violation. Id. at pp. 2-3.

Review of the record reflects that Shaw was not disciplined for failing to comply with the

no talking signs. He was disciplined for failing to obey an order to stop talking. Respondent’s

Exhibit B at p. 1. During the hearing, Officer Boyett testified that Petitioner failed to stop talking

after being told to do so twice. Hearing Audio Tape. Petitioner’s failure to comply with the order

was the basis for the disciplinary action and he presents no claim that he was not on notice that

failing to comply with an officer’s directive could result in disciplinary action. Therefore, he is not

entitled to relief on this ground.

A petition for writ of habeas corpus may be entertained “in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see also 28 U.S.C.

§ 2241(c)(3). Absent a claim that challenges the fact or duration of confinement, habeas relief

cannot be granted. See Cook v. Texas Dep’t of Criminal Justice Transitional Planning Dep’t, 37

 

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F.3d 166, 168 (5th Cir. 1994); Thomas v. Torres, 717 F.2d 248, 249 (5th Cir. 1983), cert. denied,

465 U.S. 1010, 104 S.Ct. 1008 (1984). Petitioner’s First Amendment claim does not implicate the

fact or duration of his confinement and is, therefore, not cognizable in a habeas proceeding. To the

extent that Shaw believes the no talking signs violate his First Amendment rights, assuming that he

has not been sanctioned and is not otherwise barred from filing suit, he is free to bring such a claim

in a civil rights action filed under 42 U.S.C. § 1983. Forms for filing a civil rights action are

available in the law library of the Allred Unit where Shaw is confined.

In his third ground for relief, Shaw alleges that the evidence was insufficient to sustain a

finding of guilt. He claims that the charge was fabricated, that the charging officer lied during the

hearing and that the hearing officer refused to believe him when he accused the charging officer of

lying. Amended Petition, Attached p. 2. He argues that the testimony of the charging officer,

Boyett, was obviously “coached” and that the hearing officer questioned Boyett in a leading manner

to ensure that Petitioner was identified on the record as the offender who refused to stop talking.

Id. at p. 3. Shaw further argues that he could not have known it was a rule violation to talk in the

hallway because, under the “HALL RULE” section, the Offender Orientation Handbook states: “No

loud talking or horseplay will be allowed.” Thus, he argues, “it is not legally a rule violation to talk

in the hallway.” Id. at p. 4.

Federal habeas review of the sufficiency of the evidence in a prison disciplinary action is

extremely limited. Due process requires only “some evidence” to support the findings made in the

disciplinary hearing. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472

U.S. 445, 454, 105 S.Ct. 2768, 2774 (1985); see Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.

1981) (requiring the court to determine whether “any evidence at all” supports disciplinary action

 

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taken by prison officials), cert. denied, 455 U.S. 992, 102 S.Ct. 1619 (1982). A court's

determination as to “whether this standard is satisfied does not require examination of the entire

record, independent assessment of the credibility of witnesses, or weighing of the evidence.” Hill,

472 U.S. at 455.

In the instant case, the hearing officer relied upon the officer’s report and the charging

officer’s testimony in determining Shaw’s guilt. Respondent’s Exhibit B at pp. 1-2; Hearing Audio

Tape. Such evidence constitutes some evidence of guilt. See Hudson v. Johnson, 242 F.3d 534,

536-37 (5th Cir. 2001) (finding that a prison incident report alone constitutes “some evidence” of

guilt). Therefore, Petitioner is not entitled to relief on his sufficiency-of-the-evidence claim. To the

extent that he seeks habeas relief on the ground that the hearing officer discounted his testimony and

credited that of the charging officer, Shaw cannot prevail. “Credibility determinations are the

province of the hearing officer ....” Richards v. Dretke, 394 F.3d 291, 295 (5th Cir. 2004).

Shaw argues that he committed no disciplinary violation because, despite the fact that notalking signs are posted throughout the prison, it is not against the rules to talk in the hallway. Shaw

was not found guilty of talking in the hallway. He was found guilty of failing to obey an order to

stop talking. Carrying his argument to it’s logical extension under the facts and circumstances of

the instant case, Petitioner argues that he is not required to comply with a prison guard’s directive

if the conduct in which he is engaged is not specifically prohibited in the Offender Orientation

Handbook. This argument, while novel, is unpersuasive. Refusing or failing to obey a legitimate

order given by a prison guard is listed as a disciplinary offense in the TDCJ Disciplinary Rules and

Procedures for Offenders. Respondent’s Exhibit D at pp. 1 & 4. Clearly, Petitioner was on notice

 

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that his failure to comply with the order to stop talking was a punishable offense. He is not entitled

to relief on this ground.

In his fourth ground for relief, Shaw claims that the disciplinary report was filed in a

conspiring and retaliatory manner. Amended Petition at ¶ 20.D. He alleges that the disciplinary

action was taken against him in retaliation for filing complaints with the Warden and for filing

grievances complaining of staff misconduct. Amended Petition, Attached p. 4. He claims that,

thirteen days after the disciplinary action, the Unit Classification Committee reduced his custodial

level thereby subjecting him to double jeopardy. Id. As a result, Petitioner claims to have suffered

humiliation, emotional distress, fear for his life and a chilling effect on his right of access to the

courts. Id. at p. 5.

Prison officials may not retaliate against an inmate for the exercise of a constitutionally

protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084,

116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117,

106 S.Ct. 1975 (1986). In order to show retaliation an inmate “must establish (1) a specific

constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise

of that right, (3) a retaliatory adverse act, and (4) causation.” McDonald v. Steward, 132 F.3d 225,

231 (5th Cir. 1998). Causation requires a showing that “but for the retaliatory motive the

complained of incident ... would not have occurred.” Johnson v. Rodriguez, 110 F.3d 299, 310 (5th

Cir.) (quoting Woods, 60 F.3d at 1166), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997). This

places a significant burden on the inmate. Mere conclusory allegations are insufficient to state a

claim. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988).

The inmate must produce direct evidence of motivation or “allege a chronology of events from

 

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which retaliation may plausibly be inferred.” Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857

F.2d 1139, 1143 n.6 (7th Cir. 1988)).

Petitioner has failed to articulate facts which could demonstrate that anyone involved in the

disciplinary proceeding acted for purposes of retaliation or in some sort of conspiracy. He has not

provided the Court with any information which could demonstrate that, but for a retaliatory motive,

prison officials would not have conducted the disciplinary proceeding and there is nothing in the

record of this case which suggests retaliation. See Amended Petition, Attached pp. 4-5; Petitioner’s

Objection to Respondent’s Answer at p. 8. Because Shaw’s allegations involving retaliation and

conspiracy are conclusory in nature, he is not entitled to relief on this ground. See Ross v. Estelle,

694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise

constitutional issues in habeas proceedings).

Shaw seeks habeas relief on the ground that the Unit Classification Committee reduced his

custodial classification only thirteen days after the disciplinary action. Amended Petition, Attached

p. 4. This claim is not cognizable in a habeas proceeding because it does not present an issue

involving the fact or duration of his confinement. See Cook v. Texas Dep’t of Criminal Justice

Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994); Thomas v. Torres, 717 F.2d 248, 249

(5th Cir. 1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008 (1984).

In his final ground for relief, Petitioner states that the penalties imposed against him as a

result of the disciplinary action were excessive and too severe. Amended Petition ¶ 20.E. He argues

that he was charged with a “level 2 offense” which, under TDCJ regulations, could be punished with

a two-level reduction in time-earing status but not the three-level reduction to which he was

subjected. Amended Petition, Attached p. 5. Shaw claims that the reduction in his time-earning

 

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classification cost him release on parole, which was under consideration by the Parole Board, and

that it will ultimately delay his release on mandatory supervision because of the reduction in his

good-time earning rate. Id.

This ground for relief is without merit. Absent some liberty interest with its attendant due

process considerations, the failure of TDCJ officials to follow their own rules and regulations raises

no issue of constitutional magnitude. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996);

Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Shaw has not shown that the three-level

reduction in his custodial classification resulted in any constitutional infirmity. State prisoners in

Texas “have no protected liberty interest in parole.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th

Cir. 1997). “[T]he mere possibility of parole is not a protected liberty interest.” Makris v. United

States Bureau of Prisons, 606 F.2d 575, 576 (5th Cir. 1979). “There is no constitutional or inherent

right of a convicted person to be conditionally released before the expiration of a valid sentence.”

Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100

(1979). Inasmuch as there is no right to be released on parole, it is pure speculation as to whether

an inmate will actually obtain parole. See Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Creel v.

Keene, 928 F.2d 707, 712 (5th Cir. 1991). Similarly, the loss of the ability to earn good-time credits

presents no issue of constitutional magnitude, even where an inmate is eligible for mandatory

supervised release at some future point in time. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995)

(recognizing that “[t]he loss of the opportunity to earn good-time credits, which might lead to earlier

parole, is a collateral consequence of [an inmate’s] custodial status” and, thus, does not create a

constitutionally protected liberty interest), cert. denied, 517 U.S. 1196, 116 S.Ct. 1690 (1996).

 

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Petitioner has failed to present a ground for relief which could show that the disciplinary

action taken against him was constitutionally infirm.

IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is hereby

DENIED.

Copies of this order shall be mailed to Petitioner and to Counsel for Respondent.

SO ORDERED this 8th day of September, 2005.

 

JERRY BUCHMEYER

UNITED STATES DISTRICT JUDGE

 

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