Alvarez v. Bergt et al

Filing 16

ORDER ADOPTING 9 Report and Recommendations. Signed by Judge Robert W. Schroeder, III on 1/26/2017. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
GUILLERMO ALVAREZ #1856041
v.
BOBBY BERGT ET AL.

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CIVIL ACTION NO. 5:16cv39

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Guillermo Alvarez, 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. The named Defendants are Captain Bobby Bergt, counsel substitute Amanda
Jordan, and Assistant Warden Lonnie Townsend.
I. Plaintiff’s Allegations
Plaintiff states on October 24, 2015, three prisoners, including Rodriguez, Solis, and one who
was not identified, were seen on a surveillance video cutting a fence. At the same time, Plaintiff was
seen on video getting a haircut in front of 19 Building. The unidentified prisoner at the fence was
wearing white commissary shoes and a white T-shirt, while Plaintiff was wearing black state-issue
boots and no T-shirt.
Six days later, Rodriguez and Solis were placed in pre-hearing detention. Lt. Foster stated
Plaintiff was suspected of attempting to escape with Rodriguez and Solis. Major Alexander
questioned Plaintiff about the incident and Plaintiff invoked his right to remain silent. Alexander
made a racially oriented threat toward Plaintiff.
On November 10, 2015, Plaintiff states he was charged with attempted escape. A hearing
was conducted on November 13. At this hearing, Warden Townsend testified he identified Plaintiff

as one of two prisoners standing next to Rodriguez, who was cutting the fence. Townsend stated
he identified Plaintiff by matching his photo identification to the surveillance video, but Townsend
was unable to describe the mole on Plaintiff’s face or any of his distinctive tattoos.
Captain Bergt, the disciplinary hearing officer, asked counsel substitute Amanda Jordan if
she saw Plaintiff on the video, to which Jordan said “yes.” Plaintiff replied if Jordan had seen the
video, she could not mistake him for the other offender because of the mole on his face. Jordan
looked down and said nothing, and Captain Bergt announced a finding of guilt.
Following the hearing, Plaintiff states Jordan asked to see the video again. Captain Bergt
told her only the warden could see the video. Although Captain Bergt was told the video could be
viewed in Major Pope’s office, he continued to refuse to watch it.
II. Plaintiff’s Claims and the Report of the Magistrate Judge
In his lawsuit, Plaintiff asserts he is wrongly classified and treated as an escape risk. He also
complains of the validity of his disciplinary case. Plaintiff asserts violations of procedural and
substantive due process as well as equal protection.
After review of the pleadings, the Magistrate Judge issued a Report recommending the
lawsuit be dismissed. The Magistrate Judge observed Plaintiff is not eligible for release on
mandatory supervision and determined Plaintiff’s procedural and substantive claims regarding his
disciplinary case lacked merit because Plaintiff did not show the deprivation of any constitutionally
protected liberty interests. Likewise, the Magistrate Judge concluded Plaintiff’s classification as an
escape risk did not implicate any protected liberty interests.
The Magistrate Judge further stated Captain Bergt’s failure to watch the surveillance video
and the allegedly false statements made during the hearing did not implicate any constitutional
rights. The Magistrate Judge rejected Plaintiff’s equal protection claim and determined Plaintiff
failed to state a viable retaliation claim.

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III. Plaintiff’s Objections to the Report
After summarizing the facts, Plaintiff asserts a liberty interest can be created by the Due
Process Clause of its own force in the classification characteristics used by the Unit Classification
Committee and the State Classification Committee. He states good time helps everyone toward a
review date and contends this provides him with a liberty interest.
Next, Plaintiff states the hearing was conducted in such a way as to deprive him of due
process. He cited a Ninth Circuit Court of Appeals case to show the lack of a fair hearing regardless
of the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 484 (1995).
Plaintiff argues his right to equal protection was violated because all prisoners are entitled
to present documentary evidence and the exclusion of the surveillance video shows the existence
of purposeful discrimination. He claims he was transferred with a recommendation for release from
segregation, but the officials at the Robertson Unit failed to release him to general population.
Although Plaintiff states the transfer was done because the video proved he was not involved in the
escape attempt, he contends the officials at the Robertson Unit were not told the video proved this.
Plaintiff argues he has been stigmatized with the escape classification despite proof he did
nothing wrong. He maintains this escape classification is an atypical or significant hardship in
relation to the ordinary incidents of prison life because it is both false and implies he is guilty of
serious wrongdoing. Plaintiff states he was the target of a criminal investigation and was accused
of participating in the act and asserts the allegations suggest invidious, group-based discrimination,
although he does not identify the group allegedly targeted.
IV. Plaintiff's Amended Complaint
Some two months after filing his objections to the Magistrate Judge’s Report,
Plaintiff filed an amended complaint. This amended complaint named Captain Bergt as the
only Defendant and asserts Bergt knowingly and deliberately refused to consider clear and
convincing evidence.

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Plaintiff states Bergt held the disciplinary hearing and Warden Townsend testified he
identified Plaintiff on the surveillance video as one of the offenders who cut the fence. Bergt asked
Plaintiff’s counsel substitute if Plaintiff was on the video, and she said yes, but later stated she had
made a mistake and asked to review the video again. Bergt would not allow her to do so.
In a memorandum attached to his amended complaint, Plaintiff asserts he is not being
punished because he tried to escape, but because he invoked his right to remain silent. He contends
that classifying him as an escape risk when he did not attempt to escape is not a speculative or
collateral consequence and that he lost any chance at rehabilitation and an early parole.
Plaintiff argues Bergt’s refusal to review the surveillance video proves that Plaintiff was not
proven to be one of the inmates who cut the fence. He claims he has a liberty interest in a
disciplinary hearing that actually considers clear and convincing proof that he was not one of the
three offenders who cut the fence and contends the knowing use of false charges to punish an inmate
for exercising his right to remain silent is not an ordinary incident of prison life.
Next, Plaintiff argues he was the victim of an equal protection “class of one” violation in that
all prisoners are entitled to present documentary evidence, including video proof, but this proof was
excluded because of his exercise of his right to remain silent. He insists there was clear indication
he had been misidentified and asserts this was solely because of Major Alexander’s threat.
V. Discussion
A. Substantive Due Process
The Supreme Court has held the States may, under some circumstances, create liberty
interests protected by the Due Process Clause, but such interests are generally limited to freedom
from restraint which, while not exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life. The

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operative interest involved is the nature of the deprivation. Examples of restraints triggering the
Due Process Clause of their own force include transfer to a mental hospital and involuntary
administration of psychotropic drugs, but confinement in disciplinary segregation is not such a
deprivation. Sandin, 515 U.S. at 485.
Plaintiff’s objections complain at length of being “stigmatized” as an escape risk, but the
Magistrate Judge correctly concluded such a classification is not an atypical or significant hardship
giving rise to a protected liberty interest. Metcalf v. McMillian, 68 F.3d 465 (5th Cir. 1995).
Decisions from other circuits have arrived at the same conclusion. See Hensley v. Levenhagen, civil
action no. 3:10cv522, 2011 U.S. Dist. LEXIS 1901 (N.D.Ind. Jan. 5, 2011), (citing Lekas v. Briley,
405 F.3d 602, 608–09 (7th Cir. 2005) and Townsend v. Fuchs, 522 F.3d 765, 766 (7th Cir. 2008);
accord, Tilley v. Allegheny County Jail, civil action no. 09-299, 2010 U.S. Dist. LEXIS 93388
(W.D.Pa. Sept. 8, 2010) (no constitutional right not to be classified as an escape risk or to be free
from being falsely accused of being an escape risk). This is consistent with the long-standing
principle providing prisoners have no protected liberty interest in their custodial classification.
Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). Plaintiff’s classification as an escape risk,
based on a disciplinary case which he does not allege has been overturned, did not violate any
procedural or substantive due process guarantees. This objection is without merit.
B. Procedural Due Process
Plaintiff also complains he was denied procedural due process in the disciplinary proceeding.
He acknowledged he is not eligible for mandatory supervision. The Magistrate Judge properly
determined Plaintiff did not show the punishments imposed in the disciplinary case implicated any
constitutionally protected liberty interests.
Although Plaintiff’s objections argue he has a liberty interest because good time helps
everyone toward a review date, Texas law provides the sole purpose of good time is to advance a
prisoner’s eligibility for parole or mandatory supervision. Tex. Gov. Code art. 498.003(a). Because

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Plaintiff is not eligible for release on mandatory supervision, his good time credits only advance his
eligibility for parole, and there is no liberty interest in release on parole in the State of Texas. Creel
v. Keene, 928 F.2d 707, 708–09 (5th Cir. 1991); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995).
Under these circumstances, the loss of good time credits do not affect a constitutionally protected
right, but only the “mere hope” of release on parole. This hope is not protected by due process. See
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11 (1979); accord Gilbertson
v. Tex. Bd. of Pardons & Paroles, 993 F.2d 74, 75 (5th Cir. 1993). The timing of Plaintiff’s release
is too speculative to give rise to a constitutionally protected liberty interest. Malchi v. Thaler, 211
F.3d 953, 959 (5th Cir. 2000).
The procedural protections of the Due Process Clause are only triggered where there has
been a deprivation of a constitutionally protected life, liberty or property interest. Toney v. Owens,
779 F.3d 330, 336 (5th Cir. 2015). Plaintiff failed to show such a deprivation and thus cannot
maintain a procedural due process claim.
In his objections, Plaintiff cites Foulds v. Corley, 833 F.2d 52, 54 (5th Cir. 1987), in which
the prisoner alleged he was punished because other inmates attempted to escape. The prisoner
denied any knowledge of or participation in the escape, but was placed in solitary confinement to
coerce inculpatory statements. He requested corroborative witnesses before an investigating
disciplinary board, but the request was denied; when the prisoner continued to profess ignorance of
the escape attempt, he was sentenced to solitary confinement for 15 days as well as restrictions on
commissary, telephone and visitation privileges.
The prisoner alleged the charge against him lacked evidentiary support; the jail officials
knew the charge was baseless but conducted a pretextual hearing; and the action was neither random
nor authorized but was intentionally done in accordance with established jail procedures. The Fifth
Circuit concluded these actions would, if true, amount to a due process violation.
The decision in Foulds pre-dates Sandin v. Conner and thus was decided without Sandin’s
guidance regarding the determination of the existence of liberty interests protected by the Due

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Process Clause. In Sandin, the Supreme Court held the States may, under certain circumstances,
create liberty interests which are protected by the Due Process Clause, but these interests will be
generally limited to freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.
While some prior cases held the mandatory or discretionary language of the regulations
involved determined whether or not a liberty interest existed, the Supreme Court announced in
Sandin that this analytical framework has “strayed from the real concerns undergirding the liberty
protected by the Due Process Clause.” Rather than examining the language of the regulations, the
Supreme Court specifically disapproved of the mandatory or discretionary language analysis, stating
the operative interest involved was the nature of the deprivation. Sandin, 115 S.Ct. at 2300 n.5. In
other words, those deprivations—the punishments imposed as a result of the challenged disciplinary
case—which do not exceed the prisoner’s sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, and which do not impose atypical or
significant hardships upon the prisoner in relation to the ordinary incidents of prison life, do not
implicate any constitutionally protected liberty interests.
The Supreme Court cited Vitek v. Jones, 445 U.S. 480 (1980) (transfer to mental hospital
triggers Due Process Clause) and Washington v. Harper, 494 U.S. 210, 221-222 (1990) (involuntary
administration of psychotropic drugs implicates Due Process Clause), as examples of restraints
which trigger the Due Process Clause of their own force, but stated the incarceration in disciplinary
segregation present in Sandin did not create the type of deprivation in which the State might have
created a liberty interest. Sandin, 115 S.Ct. at 2297 n.4, 2299–300. As a result, the Supreme Court
held neither the prison regulations at issue nor the Due Process Clause itself afforded the inmate a
protected liberty interest entitling him to the procedural protections of Wolff v. McDonnell, 418 U.S.
539, 563–66 (1974). Sandin, 115 S.Ct. at 2302. The fact the plaintiff was not permitted to call

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witnesses at his disciplinary hearing was not sufficient to accord him relief because no protected
liberty interest was at stake.
The punishments imposed upon the plaintiff in Foulds included 15 days of solitary
confinement, and restrictions upon commissary, telephone, and visitation privileges. Because
Foulds pre-dated Sandin, the court did not consider whether these punishments implicated any
constitutionally protected liberty interests and thus triggered due process protections.
In Lewis v. Dretke, 54 F.App’x 795 (5th Cir. 2002), the Fifth Circuit held that 30 days of cell
and commissary restrictions (including loss of recreation and library privileges as well as the ability
to attend religious services), 90 days loss of telephone privileges, 15 days of solitary confinement,
and a reduction in classification and custodial status did not implicate any constitutionally protected
liberty interests and thus did not trigger due process protections. See also Malchi v. Thaler, 211
F.3d 953, 958 (5th Cir. 2000) (30-day loss of commissary privileges and cell restriction do not
implicate due process concerns).
None of the punishments imposed upon the plaintiff in Foulds appear to implicate any
constitutionally protected liberty interests. Thus, the court’s holding that the plaintiff’s claims could
amount to a denial of due process has been rendered questionable by Sandin and its progeny. The
Court has no occasion to consider the extent to which the holding in Foulds may have survived
Sandin; for purposes of the present case, it is clear Plaintiff has not shown the deprivation of a
constitutionally protected liberty interest, rendering his due process claim without merit.
Plaintiff further objects by citing the Ninth Circuit decision in Burnsworth v. Grunderson,
179 F.3d 771, 775 (9th Cir. 1999), which held a disciplinary hearing must be fair even where no
liberty interest is implicated. The Magistrate Judge correctly determined no cases from the Fifth
Circuit have reached the same conclusion as Burnsworth and the Ninth Circuit’s reasoning in that
case differs from applicable Fifth Circuit precedent. Plaintiff’s objections in this regard are without
merit.

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C. Equal Protection
Plaintiff presents the vague and general assertion that all prisoners are entitled to present
documentary evidence in support of his equal protection claim, but the Magistrate Judge correctly
stated conclusory allegations are insufficient to support “class of one” discrimination allegations.
Plaintiff identified no one similarly situated to him who received different treatment or pointed to
facts showing any such different treatment had no rational basis. See Bell v. Woods, 382 F.App’x
391 (5th Cir. June 18, 2010) (allegation that inmate was treated differently from other sex offenders
failed to set out a claim where inmate did not identify other sex offenders who were allowed to
enroll in computer courses, nor did he allege other prisoners were convicted of the same offense as
he was or they were allowed into the same courses for which he had applied), citing Pedraza v.
Meyer, 919 F.2d 317, 318 n.1 (5th Cir. 1990) (vague allegation that non-drug addicts received better
medical care did not set out an equal protection violation); see also Adkins v. Kaspar, 393 F.3d 559,
566 (5th Cir. 2004) (rejecting prison discrimination claim based on “bald, unsupported, conclusional
allegations”).
In his objections, Plaintiff speculates the exclusion of the surveillance video shows the
existence of purposeful discrimination. Although he claims other inmates are allowed to present
documentary evidence, implying he was singled out for disparate treatment, the Fifth Circuit has
discussed other cases in which surveillance videos were excluded, holding the prison disciplinary
hearing officer did not violate due process by refusing to watch the video despite the prisoner’s
request for the hearing officer to do so. Arceneaux v. Pearson, 449 F.App’x 396 (5th Cir. 2011);
Neal v. Casterline, 129 F.App’x 113 (5th Cir. 2005). As the Magistrate Judge stated, Plaintiff set
out no specific facts showing purposeful discrimination and identified no one who received different
treatment. His objections are without merit.
IV. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)

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(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.”) Upon such de novo review,
the Court has determined the Report of the Magistrate Judge is correct and the Plaintiff’s objections
are without merit. It is accordingly
ORDERED the Plaintiff’s objections are overruled and the Report of the Magistrate Judge
.
(Docket No. 9) is ADOPTED as the opinion of the District Court. It is further
ORDERED the above-styled civil action is DISMISSED WITH PREJUDICE for purposes
of proceeding in forma pauperis for failure to state a claim upon which relief may be granted. It is
further
ORDERED the Clerk shall send a copy of this Opinion to the Administrator of the Strikes
List for the Eastern District of Texas. Finally, it is
ORDERED any and all motions which may be pending in this civil action are hereby
DENIED.
SIGNED this 26th day of January, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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