John Futch v. Cheron Nash
UNPUBLISHED OPINION FILED. [16-51222 Affirmed] Judge: CES, Judge: ECP, Judge: SAH. Mandate issue date is 01/02/2018 [16-51222]
Date Filed: 11/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 8, 2017
Lyle W. Cayce
JOHN RANDALL FUTCH,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CV-175
Before STEWART, Chief Judge, and PRADO and HIGGINSON, Circuit
PER CURIAM: *
John Randall Futch, federal prisoner # 08700-021, appeals the denial of
relief under 28 U.S.C. § 2241. He challenges a disciplinary conviction for
violating “Code 299, Conduct Which Disrupts the Security or Orderly Running
of the Institution, Most Like Code 206, Making Sexual Proposals or Threats to
Another Person.” Futch argues that the district court abused its discretion in
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 11/08/2017
in finding that there was some evidence to support his disciplinary conviction
and by denying his motion for discovery.
While Futch contends that he did not receive all of the due process
protections to which he was entitled under Wolff v. McDonnell, 418 U.S. 539,
556 (1974), he fails to challenge the district court’s determination that he was
provided notice of the charges and notice of the hearing, that he was informed
of his rights, and that he was provided the disciplinary hearing officer’s written
report. Also, Futch does not include argument challenging the district court’s
finding that he received all of his Wolff due process rights during the
disciplinary proceeding. Futch has therefore abandoned these issues. See
United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010); Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
According to Futch, the district court erred by determining that there
was some evidence to support a finding of guilt, as evidence was falsified and,
if discovery of “the ‘first drop note’” had been allowed, he would have been able
to refute the evidence that was presented. As the record demonstrates that
there was some evidence to support the finding of guilt, Futch’s challenge to
the sufficiency of the evidence is without merit. See Teague v. Quarterman,
482 F.3d 769, 773 (5th Cir. 2007); Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th
Cir. 1994). Moreover, the record shows that the drop note in question was
irrelevant to the evidence submitted during the disciplinary proceeding and
that there was no evidence to substantiate Futch’s claim that a prison official
falsified her statement.
Finally, the district court’s denial of discovery was not an abuse of
discretion. See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir.
2000); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990). Accordingly,
the judgment of the district court is AFFIRMED.
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