Rice v. Williams et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 36 Report and Recommendations and Plaintiff's objections are Overruled and Defendants 34 motion for summary judgment is Granted. All other motions pending are hereby DENIED. Signed by Judge Michael H. Schneider on 9/11/2014. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
EARL RICE

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v.

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B. WILLIAMS, ET AL.

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CIVIL ACTION NO. 5:13cv82

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Earl Rice filed this lawsuit under 42 U.S.C. §1983 complaining of alleged
violations of his constitutional rights during his confinement in the Texas Department of Criminal
Justice, Correctional Institutions Division. This Court ordered that the case be referred to the United
States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the
Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. Plaintiff
has named eight Defendants in his currently active amended complaint. They are: Jeffrey Calfee,
Thomas Prasifika, Lorie Davis, Jonie White, Jennifer Smith, Vance Drum, Darrell McCracken, and
James Mossbarger. Of these persons, Calfee is a warden at the Telford Unit and the other persons
are members of the Director’s Review Committee.
I. The Plaintiff’s Complaint
Rice states he received a major disciplinary case for possession of contraband (money) after
a visit from his brother Earnest Rice and his mother Ivogene Rice. Two weeks later, on November
15, 2011, he was notified that Earnest and Ivogene Rice had been removed from his visitation list.
Rice was convicted on the disciplinary charges on November 21, 2011, but on May 14, 2012,
the disciplinary conviction was overturned by Elaina Fields, Program Supervisor III in the Region
II office. Rice attached documentation showing that the conviction was overturned because “a
procedural error was noted.”
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After the case was overturned, Rice asked the Director’s Review Committee to place Earnest
and Ivogene Rice back on his visitation list, but they refused to do so. Rice stated Warden Calfee
denied the visitation privileges first, and then the Committee approved this decision. He contends
the failure to place his mother and brother back on his visitation list after the case was overturned
violates his right to due process as well as his right to freedom of speech and association.
II. The Defendants’ Motion for Summary Judgment
The Defendants answered the lawsuit and filed a motion for summary judgment stating the
disciplinary case was overturned because the hearing officer did not sign the paperwork at the
conclusion of the hearing. They assert visitation is a privilege which may be restricted if a visitor
violates TDCJ rules and the overturning of the disciplinary case on a procedural error does not affect
the Director’s Review Committee’s decision not to reinstate the visitation privileges of Rice’s
mother and brother.
The Defendants contend Calfee was not a member of the committee and had no personal
involvement with the decision to remove Earnest and Ivogene Rice from the visitation list, adding
that Rice has not shown the violation of a constitutional right. They cite a message from a TDCJ
official named Cynthia Skipper which states Rice left the visitation area and Captain Rice patsearched him, discovering a $100 bill rolled up tightly in toilet paper. The disciplinary case was
overturned due to the technical error of the hearing officer’s failing to sign the form at the conclusion
of the hearing. Because of this error, Rice’s classification status was restored, as was his 1000 days
of good time credits. Skipper went on to state that although the case was overturned, Rice was
nonetheless guilty of possession of a $100 bill after his visit with Earnest and Ivogene Rice.
III. The Plaintiff’s Response
In response, Rice argued Calfee did have personal involvement, there was no evidence
showing whether the conviction was overturned because the hearing officer did not sign the form
or because the evidence was insufficient to sustain a finding of guilt, and no reason was given for
the reversal other than “a procedural error was noted and that the Administration had an option to
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rehear the case.” He contends the evidence at the hearing showed the contraband was found behind
a wagon cart on the floor, not on his person, and he denied having possession of the money; Rice
maintains the case was overturned on this basis and not because of a failure to sign the form. He also
argues the Defendants are not entitled to qualified immunity because the First Amendment prohibits
prison officials from subjecting prisoners to denial of visitation privileges, citing Overton v.
Bazzetta, 539 U.S. 126 (2006).
IV. The Magistrate Judge’s Report
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
Defendants’ motion for summary judgment be granted and the lawsuit dismissed. The Magistrate
Judge stated that in Overton, the State of Michigan had imposed regulations governing visitation
which the district court held invalid and the Sixth Circuit affirmed. The Supreme Court reversed this
determination, holding that prisoners do not retain rights inconsistent with proper incarceration and
freedom of association is one of the rights least compatible with incarceration. The Supreme Court
declined to explore or define the right of freedom of association in the prison context in any great
detail because the regulations involved bore a rational relation to legitimate penological interests and
thus were upheld.
To the extent Rice challenged the TDCJ regulations themselves, the Magistrate Judge stated
the claim was without merit because these regulations are rationally related to a legitimate
penological interest. However, Rice’s primary challenge was to the application of those regulations
to him. Contrary to Rice’s claims, the Magistrate Judge stated the summary judgment evidence
showed his disciplinary case was overturned on the procedural ground that the hearing officer failed
to sign the form at the conclusion of the hearing, not because the evidence was insufficient to support
the verdict.

The overturning of the case on this basis did not affect the prison officials’

determination that Earnest and Ivogene Rice had passed contraband to Rice in the form of a $100
bill, and this determination justified their removal from his visitation list regardless of a procedural
error made at the hearing.
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The Magistrate Judge also stated visitation privileges do not implicate constitutionally
protected liberty interests but are a matter subject to the discretion of prison officials, and concluded
Rice failed to show an abuse of this discretion. Rice is not completely cut off from all contact with
his mother and brother because he can write to them or use the TDCJ telephone system if available.
Finally, the Magistrate Judge determined the Defendants are entitled to qualified immunity because
Rice did not show their conduct violated any clearly established constitutional or statutory rights of
which a reasonable prison official would have known or that the actions of the Defendants were
objectively unreasonable in light of clearly established law.
V. The Plaintiff’s Objections
Rice identifies seven specific objections to the Magistrate Judge’s Report, of which the first
three involve his contention that the disciplinary hearing was not overturned because the hearing
officer failed to sign the form. He states that the sufficiency of his claim hinges on whether or not
Fields overturned the case because the hearing officer failed to sign the paperwork, saying “the
record does not support the Defendants’ version of the facts pertaining to the reversal of his
disciplinary case.”
The summary judgment evidence contains an inter-office communication from Elaina Fields
to Rice which reads as follows:
Disciplinary case #0120063720 has been reviewed. Upon review, a procedural error
was noted. Disciplinary case #20120063720 will be overturned by the Telford Unit
Administration with the unit’s option to rehear the case.
A set of visitation notes reads as follows:
Warden Calfee states during visitation, $100 bill was introduced into the facility.
Due to the contraband being found on [sic[ rolled up tight in toilet paper on the
offender’s person, a major use of force occurring after the visit. The case was
overturned due to a technical error of the DHO failing to sign the I-47MA at the
completion of the hearing. Due to this error the offender’s S3 status was restored and
his 1000 days of good time was restored. While this case did get overturned on a
technical issue the offender was guilty of possession of $100 bill after visiting with
MO and BRO. Warden recommends not restoring privileges for either visitor.
Visitors state they would like to be reconsidered for visitation. Offender states he
UCC [sic] overturned the disciplinary case. Can he see his family again please?

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An email from Cynthia Skipper, an official with the Institutional Department of TDCJ, to
Brittany Williams, an official with the Operations Department, reads as follows:
Capt Martin was pat searching the offender after he left the visitation area when he
noticed a $100 bill rolled up tight in toilet paper which resulted in a use of force that
caused injuries beyond first aid to Capt Martin. The case was overturned due to a
technical error of the DHO failing to sign the I-47MA at the completion of the
hearing. Due to this error the offender’s S3 status was restored and his 1000 days of
good time was restored. While this case did get overturned on a technical issue the
offender was guilty of possession of $100 bill after his visit with Earnest Rice and
Ivogene Rice.
As the Magistrate Judge determined, the summary judgment evidence shows that the
disciplinary case was overturned because of the procedural violation that the hearing officer did not
sign the form at the conclusion of the hearing, not because the evidence was insufficient. The fact
Rice was not informed of the specific procedural error committed does not alter the nature of that
error. Rice’s first three objections are without merit.
Fourth, Rice challenges the Magistrate Judge’s conclusion that no abuse of discretion was
shown. The summary judgment evidence shows Rice was discovered with contraband after a visit
from his mother and brother and a use of force occurred in which Captain Martin sustained some
injuries. Given that restrictions on visitation do not implicate any constitutionally protected liberty
interests, see Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999), Rice has not shown an abuse of
discretion. This objection is without merit.
Rice’s fifth and sixth objections concern the Magistrate Judge’s conclusion that the
Defendants are entitled to qualified immunity. Rice’s pleadings do not reflect that the Defendants
acted in an objectively unreasonable manner or that all reasonable officials similarly situated would
have known that the actions of the Defendants violated the Constitution. Tolan v. Cotton, 713 F.3d
299, 204 (5th Cir. 2013); Thompson v. Upshur County, 235 F.3d 447, 460 (5th Cir. 2001). These
objections are without merit.
In his seventh objection, Rice takes issue with the Magistrate Judge’s determination that there
are no disputed issues of material fact and the Defendants are entitled to judgment as a matter of law.
He argues at length that the question of why the disciplinary case was dismissed is a disputed
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question of fact, but he offers nothing to suggest that the case was dismissed for any reason other
than the one which appears in the summary judgment evidence. His contention that the case was
dismissed for lack of evidence, rather than the procedural error of failure to sign the form at the
conclusion of the hearing, is entirely speculative and cannot withstand a properly supported motion
for summary judgment. See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000)
(conclusory allegations, speculation, improbable inferences, or a mere scintilla of evidence are
insufficient to defeat a summary judgment motion). Rice’s objections are without merit.
VI. Conclusion
The Court has conducted a careful de novo review of all of the pleadings and records in this
case. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge
is correct and the Plaintiff’s objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 36) is ADOPTED as the opinion of the District Court. It is further
.

ORDERED that the Defendants’ motion for summary judgment (docket no. 34) is

GRANTED. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED WITH
PREJUDICE. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
It is SO ORDERED.
SIGNED this 11th day of September, 2014.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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