Davis v. Evans et al
ORDER ADOPTING 38 REPORT AND RECOMMENDATIONS Ordering that Plaintiffs claim concerning threats directed at him by Captain Martin is DISMISSED WITH PREJUDICE for purposes of proceeding in forma pauperis for failure to state a claim. Dennis Martin (Captain at Telford Unit) now terminated.. Signed by Judge Robert W. Schroeder, III on 3/7/2017. (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
T EVANS, FIELD OFFICER AT TELFORD
UNIT; DENNIS MARTIN, CAPTAIN AT
TELFORD UNIT; FNU STANDLY,
MEDICAL DOCTOR AT TELFORD UNIT;
FNU PENNY, WARDEN; AND KEVIN
CIVIL ACTION NO. 5:15-CV-00138-RWS
MEMORANDUM ADOPTING REPORTAND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE DISMISSING PLAINTIFF’S
CLAIMS AGAGINST CAPTAIN DENNIS MARTIN
Plaintiff Fidel Davis, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. 1983
complaining of alleged violations of his constitutional rights. This Court referred the case 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’s action names as Defendants Officer T. Evans, Captain Dennis Martin, Warden Penny,1
Dr. Reginaldo Stanley, and Jon Braun.2 This Memorandum Opinion addresses Plaintiff’s claims
against Captain Martin, the disciplinary hearing officer who presided over two disciplinary cases
which Plaintiff received.
Warden Penny was substituted at Plaintiff’s request for Warden Dawn Merchant.
Inmate Jon Braun has already been dismissed.
In his Complaint, Plaintiff asserts Officer Evans assaulted him on July 14, 2014 or July 15,
2014. Docket No. 1 at 4. Plaintiff received a disciplinary case for attempting to assault an officer.
Id. Plaintiff claims that he did not commit this offense and that Captain Martin found him guilty
based on frivolous evidence. Id. As punishment, Plaintiff received 45 days of cell, commissary,
and recreation restrictions, a reduction in classification status, and the loss of 364 days of goodtime credits. Id. Plaintiff also complains that his parole was denied. Docket No. 1-1 at 2.
Plaintiff attached a Step One grievance to his Complaint in this case, which alleges that, in
another disciplinary hearing before Captain Martin, Plaintiff was wrongfully charged with
possession of contraband. Docket No. 1-1 at 1. Plaintiff states the contraband belonged to his
cellmate, Johnson, who admitted it was his and stated Plaintiff knew nothing about it, but Plaintiff
was still convicted of this disciplinary charge. Id. Plaintiff further asserts that Captain Martin
stated the charging officer did not need a photograph or evidence of the contraband and that
Captain Martin stopped the tape during the hearing on the disciplinary charge and told Plaintiff he
would have him killed. Id. at 1-2.
The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report recommending
Plaintiff’s claims against Captain Martin be dismissed. Docket No. 38. The Magistrate Judge
explained that, under Fifth Circuit law, prisoners cannot recover good time credits lost in a prison
disciplinary proceeding through a §1983 action, nor can they otherwise bring suit concerning the
disciplinary conviction until such time as the conviction has been overturned or otherwise set aside.
Docket No. 38 at 3 (citing Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)).
The Report further explains that Plaintiff’s claim that he was denied parole does not set out
a constitutional violation because Texas prisoners have no constitutionally protected liberty
interest in release on parole. Id. at 4 (citing Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.
1997)). The Magistrate Judge also found that Captain Martin’s threats against Plaintiff did not
amount to a constitutional violation pursuant to Bender v. Brumley, 1 F.3d 271, 274 n.3 (5th Cir.
1993) (holding that the threatening language and gestures of a custodial officer do not, even if true,
amount to constitutional violations). The Magistrate Judge ultimately determined Plaintiff failed
to state a claim upon which relief may be granted and recommended dismissal of Plaintiff’s claims
related to denial of due process in disciplinary cases and threats by Captain Martin. Id. at 5.
The Plaintiff’s Objections
In his objections, Plaintiff cites case law concerning general principles of due process and
argues that Evans and Martin deprived him of a fair trial and that camera evidence proved that his
constitutional rights were violated. Docket No. 44 at 3. Plaintiff states he was choked and rammed
into the wall, causing ringing in his ears, and he is now on a psychiatric ward because he is hearing
voices. Id. at 2. Davis does not address the Magistrate Judge’s conclusion that Davis cannot
challenge a disciplinary hearing in a §1983 lawsuit, nor does he mention the Magistrate Judge’s
determination as to his claims about the denial of parole or the threats. See Docket No. 44.
Although Plaintiff complains he was denied a fair hearing, his complaint does not alter the
fact that he cannot recover good time credits through a civil rights lawsuit, nor can he seek damages
for a denial of due process in a disciplinary proceeding until the proceeding has been overturned
or set aside. Plaintiff’s objections are without merit.
The Court has conducted a de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which Plaintiff objected. See 28 U.S.C. §636(b)(1) (a
district Judge shall “make a de novo determination of those portions of the Report or specified
proposed findings or recommendations to which objection is made.”) The Court agrees with the
Magistrate Judge that Plaintiff’s claims regarding a denial of due process in disciplinary
proceedings and claims relating to threats by Captain Martin should be dismissed with prejudice.
These claims are not cognizable in a lawsuit filed under 42 U.S.C. § 1983. It is accordingly
ORDERED the Plaintiff’s objections are overruled and the Report of the Magistrate Judge
(docket no. 38) is ADOPTED as the opinion of the District Court. It is further
ORDERED the Plaintiff’s claim concerning the alleged denial of due process in the
disciplinary proceedings is DISMISSED WITH PREJUDICE until such time as Plaintiff can
show the disciplinary cases complained of have been overturned, expunged, or otherwise set aside.
It is further
ORDERED the Plaintiff’s claim concerning threats directed at him by Captain Martin is
DISMISSED WITH PREJUDICE for purposes of proceeding in forma pauperis for failure to
state a claim upon which relief may be granted. The Defendant Captain Martin is DISMISSED
as a party to this lawsuit.
SIGNED this 7th day of March, 2017.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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