Hopkins v. Stalder et al

Filing 13

REPORT AND RECOMMENDATION re 1 Complaint and 6 Amended Complaint filed by Edward Hopkins: IT IS RECOMMENDED that Plaintiff's civil rights complaint be DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted. Objections to R&R due by 6/15/2009. Signed by Magistrate Judge Mark Hornsby on 5/27/09. (crt,Cassanova, M)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION E D W A R D HOPKINS VERSUS R I C H A R D STALDER, ET AL. CIVIL ACTION NO. 08-253-P J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY R E P O RT AND RECOMMENDATION This matter has been referred to the undersigned magistrate judge for review, report and recommendation in accordance with 28 U.S.C. 636(b)(1)(B). S T A T E M E N T OF CLAIM B e f o r e the Court is a civil rights action filed in forma pauperis by pro se plaintiff E dw ard Hopkins ("Plaintiff"), pursuant to 42 U.S.C. 1983. This complaint was received a n d filed in this Court on February 20, 2008. Plaintiff is currently incarcerated at the River B e n d Detention Center, but was incarcerated at the David Wade Correctional Center in Hom er, Louisiana when he filed this complaint. He names Richard Stalder, Venetia M ichae l, A n t h o n y Batson, Major G. Savage, Lt. Col. Tommy Miller and Debra Miller as defendants. P l a i n ti f f claims Defendants violated his civil rights during his prison disciplinary p r o c e e d i n g s . He claims his disciplinary hearing was not conducted within 72 hours of being c h a r g e d as required by the Louisiana Department of Corrections rules and regulations. These disc iplin ary proceedings occurred in March and April 2006. P l a i n ti f f claims the Louisiana Nineteenth Judicial District Court expunged the rule v i o l a ti o n report from his record, allowed him to reapply for work release, restored his good t i m e credits, and accessed court costs to Defendants. Accordingly, Plaintiff seeks punitive, declaratory and compensatory damages. L A W AND ANALYSIS P l a i n ti f f complains that his disciplinary hearing was not conducted within 72 hours o f being charged as required by the Louisiana Department of Corrections rules and re g u l a t i o n s . To the extent Plaintiff contends he was punished without procedural due pro ces s, that claim is not cognizable. Plaintiff claims he lost good time credits in the prison disciplinary proceedings. The Fifth Circuit has held that as a general rule, only sanctions which result in loss of good time credit or which otherwise directly and adversely affect release will implicate a cons titutionally protected liberty interest. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). In Wolff v. M cD onald , 418 U.S. 539, 94.Ct. 2963, 41 L.Ed.2d 935 (1974), the S u p re m e Court set forth the minimum requirements of procedural due process which are to b e accorded prisoners in the disciplinary hearing procedure. The minimum requirements are ( 1 ) advance written notice of the claimed violation(s); (2) a written statement of the fact finders as to the evidence relied on and the reason(s) for the disciplinary action taken; and ( 3 ) an opportunity to call witnesses and present documentary evidence in his defense, when to do so would not be unduly hazardous to institutional safety or correctional goals. Wolff, 4 1 8 U.S. at 564-66. Page 2 of 5 P l a i n ti f f in the instant case does not allege that Defendants violated the minimum requ ireme nts of procedural due process set for in Wolff. Nor does Plaintiff allege in this a c t io n that the evidence was insufficient to support the decision of the disciplinary board. I n s t ea d , Plaintiff alleges he was denied due process because Defendants failed to follow their o w n rules and regulations regarding a hearing within 72 hours. A failure to follow i n s ti t u ti o n a l rules and regulation, standing alone, does not constitute a violation of Plaintiff's d u e process rights. See Murphy v. Collins 26 F.3d 541, 543 (5 th Cir. 1994). "A prison o f f i c ial's failure to follow the prison's own policies, procedures or regulations does not cons titute a violation of due process, if constitutional minima are nevertheless met." Myers v . Klavenhagen, 97 F.3d 91, 94 (5 th Circuit 1996). A cc or di ng ly, Plaintiff's claims that he was punished without procedural due process o f law are without merit and should be dismissed with prejudice as frivolous. C O N C L U S IO N B e c a u s e Plaintiff filed this proceeding in forma pauperis ("IFP"), if this Court finds Pl ain tif f's complaint to be frivolous, it may dismiss the complaint as such at any time, before o r after service of process, and before or after answers have been filed. See 28 U.S.C. 1915(e); Green v. M cK askle , 788 F.2d 1116, 1119 (5th Cir. 1986); Spears v. McCotter, 766 F . 2 d 179, 181 (5th Cir. 1985). District courts are vested with extremely broad discretion in m a k i n g a determination of whether an IFP proceeding is frivolous and may dismiss a claim a s frivolous if the IFP complaint lacks an arguable basis either in law or in fact. See Hicks Page 3 of 5 v . Garner, 69 F.3d 22 (5th Cir. 1995); Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993); Neitzke v . Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989). A cc or di ng ly; I T IS RECOMMENDED that Plaintiff's civil rights complaint be DISMISSED W I T H PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 1915(e)(2)(B)(i) and (ii). O B J E C T IO N S U n d e r the provisions of 28 U.S.C. 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this Report a n d Recommendation to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another p a r ty's objection within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n s set forth above, within ten (10) days after being served with a copy shall ba r that party, except upon grounds of plain error, from attacking, on appeal, the proposed f a c t u a l findings and legal conclusions that were accepted by the district court and that were n o t objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir . 1996) (en banc). Page 4 of 5 T H U S DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 27 th d a y of May, 2009. Page 5 of 5

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