IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

SHAWN HAWES §

VS. § CIVIL ACTION NO. 1:23-CV-52

WARDEN, FCI BEAUMONT §

 REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner Shawn Hawes, a prisoner confined at the Federal Correctional Institution in

Beaumont, Texas, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241. 

The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Respondent filed amotion to dismiss, or in the alternative, for summaryjudgment. Petitioner

filed a response. This Report and Recommendation considers the merits of Respondent’s motion

and Petitioner’s response.

Factual Background

On March 4, 2022, Petitioner was charged with disruptive conduct (199 violation) most like

possessing a hazardous tool (108 violation). (ECF No. 6-1 at 11.) The charging officer described

the incident as follows:

On March 3, 2022, at approximately 3:15 pm, COL SIS was conducting random

searches in F-4 Housing Unit. Upon entering cube 428, searching under the lower

bunk (428L) of [Petitioner], five (5) cans of Mountain Dew altered to contain hidden

compartments were found. Upon opening the compartments, three (3) USB phone

chargers, three (3) AT&T SIM cards, and three (3) sets of headphones containing

microphone speaking devices were discovered. The compartments are made from

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emptied cans of Mountain Dew and filled with a plaster-like substance to mold the

inside of the cans, with a plastic pill bottle inserted. The screw-on cap to the pill

bottle is fixed to the unopened top of the can, which was removed with a razor blade. 

This construction adds weight and hardens the can and allows the can to look and

feel like a [sic] unopened can of Mountain Dew. Inmate Hawes is the only inmate

assigned to cube 428 in F-4 Housing Unit.

(ECF No. 6-1 at 11.) Petitioner received a copy of the incident report on March 4, 2022. Petitioner

was advised of his rights, including his right to remain silent. (ECF No. 6-1 at 13.) Nevertheless,

Petitioner gave a statement, telling the investigator, “I don’t even drink soda, I don’t know how those

got under my bunk.” (ECF No. 6-1 at 13.) Petitioner’s commissary receipts showed that he had

purchased soda from the commissary on five occasions, including two purchases of Mountain Dew

twelve packs. (ECF No. 6-1 at 13, 20-24.) The Unit Disciplinary Committee (UDC) conducted a

hearing on March 7, 2022. (ECF No. 6-1 at 12.) Petitioner told the UDC that the Mountain Dew

did not belong to him. The UDC referred the incident report to the Disciplinary Hearing Officer

(DHO) for further proceedings due to the seriousness of the offense. At that time, Petitioner

requested a staff representative to assist him at the DHO hearing, and he requested that Justin Haynes

and Correctional Officer McCorkel testify at the hearing. (ECF No. 1 at 15.)

The DHO hearing was conducted on March 10, 2022. (Doc. #6-1 at 6-9.) The DHO report

reflects that Petitioner waived the rights to a staff representative and to call witnesses, but Petitioner

states that he did not waive those rights. After considering the charging officer’s report, the

photographs of the Mountain Dew cans and their contents, and Petitioner’s statement at the hearing

that the contraband did not belong to him and he was at work when the items were found, the DHO

found Petitioner guilty of the 199 violation of disruptive conduct. As punishment, Petitioner lost

commissary privileges for 180 days, he was placed in disciplinary segregation for 30 days, and he 

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forfeited 41 days of good conduct time. Petitioner was provided a copy of the DHO’s written

findings and was advised of his right to appeal the finding through the administrative remedy

process.

The Petition

Petitioner claims he was denied due process at the DHO hearing because he was denied a

staff representative and two witnesses. Petitioner claims the electronic, unsigned DHO report

inaccuratelyreflects that Petitioner waived his rights to a staff representative and witnesses. Finally,

Petitioner claims he did not have notice that he was charged with a violation of 199 because his UDC

hearing was for a violation of 108.

Standard of Review

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits the dismissal of a complaint if it fails to

state a claim upon which relief may be granted. A complaint does not need detailed factual

allegations, but the plaintiff must allege sufficient facts to show more than a speculative right to

relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal for failure to state a

claim is appropriate if the complaint does not include enough facts to state a claim that is plausible

on its face. Id. at 570. Conclusory allegations and a formulaic recitation of the elements of a cause

of action will not suffice to prevent dismissal for failure to state a claim. Id. at 555. The plaintiff

must plead facts that allow the court to “draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

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Motion for Summary Judgment

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED.R.CIV. PRO. 56(a). A fact is material if it could affect

the outcome of the case under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986); Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 427

(5th Cir. 2003). A dispute about a material fact is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; Instone Travel

Tech, 334 F.3d at 427.

The party seeking summary judgment bears the initial burden of demonstrating that there is

an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986); Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). After a proper motion for

summary judgment is made, the non-movant must set forth specific facts showing that there is a

genuine issue for trial. FED.R.CIV.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986); In re Taxotere (Docetaxel) Prods. Liab. Litig., 994 F.3d 704, 708 (5th Cir.

2021); Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). 

Because summary judgment is a final adjudication on the merits, courts must employ the

device cautiously. Hulsey v. Texas, 929 F.2d 168, 170 (5th Cir. 1991). In prisoner pro se cases,

courts must be careful to “guard against premature truncation of legitimate lawsuits merely because

of unskilled presentations.” Naranjo v. Thompson, 809 F.3d 793, 806 (5th Cir. 2015) (quoting

Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir. 1980)).

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Analysis

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. The inmate is entitled to the following: 1) notice of the charges; 2) the right to

be present at the hearing; 3) the right to present witnesses and evidence; and 4) the right to receive

a written copy of the hearing record. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Morgan v.

Quarterman, 570 F.3d 663, 668 (5th Cir. 2009); Smith v. Rabalais, 659 F.2d 539, 542 (5th Cir.

1981). 

Denial of Witnesses

Petitioner contends that he was denied due process because he was not permitted to call two

witnesses to testify at the DHO hearing. Inmates do not have an unrestricted right to call witnesses

at disciplinary hearings. Wolff, 418 U.S. at 566. Prison officials have discretion to refuse to call

witnesses, particularly where the testimony would be irrelevant or unnecessary. Id. Further,

confrontation and cross-examination of witnesses are not required in prison disciplinary hearings. 

Id. at 567-68; Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). 

Petitioner states that he wanted to call inmate Justin Haynes and Correctional Officer

McCorkel to testify, and that the DHO report erroneously stated that he waived that right at the DHO

hearing. Federal habeas relief is not available unless the petitioner was prejudiced as a result of the

alleged constitutional violation. Simpson v. Ortiz, 995 F.2d 606, 609 (5th Cir. 1993). Accepting as

true Petitioner’s assertion that he was denied witnesses at the DHO hearing, he has not demonstrated

that the denial of those witnesses affected the outcome of the proceeding. There is no indication in

the record that those potential witnesses could offer exculpatory testimony that would have changed

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the outcome of the proceeding. Because Petitioner has not demonstrated that he was prejudiced by

the denial of witnesses, he is not entitled to relief on this ground. 

Denial of Staff Representative

Petitioner also contends that he was denied the assistance of a staff representative to assist

him at the DHO hearing and that the DHO report erroneously stated that he waived his right to a staff

representative at the DHO hearing. Inmates do not have a right to counsel at disciplinary hearings. 

Wolff, 418 U.S. at 570. If there are complex issues involved, or the inmate is illiterate, he should be

allowed to seek assistance from another inmate or a staff member. Id. In this case, Petitioner did

not meet the criteria for assistance. The issues were not complex, and there is nothing in the record

indicating that Petitioner is illiterate. Therefore, the lack of a staff representative did not deny

Petitioner due process. 

Inadequate Notice

Petitioner contends that he did not receive sufficient notice of the disciplinarycharge because

he was found guilty of disruptive conduct (199 violation), but he was charged with possessing a

hazardous tool (108 violation). This claim lacks merit because the incident report reflects that

Petitioner was notified of potential violations of both offenses. (ECF No. 6-1 at 11.) 

Recommendation

Respondent’s motion to dismiss or for summaryjudgment should be granted, and the petition

for writ of habeas corpus should be denied. 

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Objections

Within fourteen days after receipt 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 fourteen days after service shall bar an

aggrieved party from the entitlement of 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

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72. 

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 4th day of March, 2024.

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