Mares v. Director, TDCJ-CID

Filing 10

ORDER ADOPTING 5 Report and Recommendations, and overruling petr's objections. The application for the writ of habeas corpus is DISMISSED with prejudice. Any retaliation claims which may be cognizable in a civil rightslawsuit are DISMISSED without prejudice. Petitioner is hereby DENIED a certificate of appealability sua sponte. All motions which may be pending in this civil action are hereby DENIED. Signed by Judge Leonard Davis on 10/12/11. cc:petr 10-13-11(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ARTHUR MARES

§

v.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 6:11v344

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Arthur Mares, proceeding pro se, filed this application for the writ of habeas
corpus under 28 U.S.C. §2254 complaining of the legality of prison disciplinary action taken against
him during his confinement in the Texas Department of Criminal Justice, Correctional Institutions
Division. This Court ordered that the matter 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.
Mares was found guilty of possession of alcohol, for which he says that he received
punishments of 30 days of cell and commissary restrictions, reduction in classification status, and
reduction in custody level. He did not lose any good time, and concedes that he is ineligible for
release on mandatory supervision in any event.
Mares complained that the disciplinary case was given to him in retaliation for his helping
inmates file complaints on Sgt. Hanson, there was no evidence to support the charges, he is actually
innocent, his witnesses were not called, and Sgt. Hanson both wrote the report and investigated it.
He also complained that he had been the victim of racial profiling and retaliation in incidents
unrelated to the disciplinary case, that the Unit Classification Committee violated prison rules and
regulations, and his life was placed in danger when he was reclassified to medium custody.

1

After review of the pleadings, the Magistrate Judge issued a Report recommending that the
petition be dismissed. The Magistrate Judge concluded that Mares had failed to show the
deprivation of a constitutionally protected liberty interest, as set out in Sandin v. Conner, 115 S.Ct.
2293, 2301 (1995). To the extent that Mares set out a retaliation claim, which could be cognizable
under 42 U.S.C. §1983, the Magistrate Judge observed that Mares could not evade the statutory
filing fees for a Section 1983 action by couching his retaliation claims in a habeas corpus action, and
that Mares had not set out a cognizable retaliation claim in any event. The Magistrate Judge did
recommended that to the extent that Mares may have set out potential claims cognizable under
Section 1983, any such claims be dismissed without prejudice.
Mares filed objections to the Magistrate Judge’s Report on August 22, 2011. In his
objections, Mares first argues that not only was he deprived of a liberty interest, he was also deprived
of a “property interest” which gives rise to a liberty interest. He defines these “property interests”
as his “entitlements” to a fair trial, being able to call witnesses, being free from false disciplinary
charges, being entitled to a proper investigation, and being entitled to his classification and custody
levels.
Mares cites a number of cases in support of his contention, but all of these cases pre-dated
Sandin. In Sandin, the Supreme Court said that the analytical framework previously used had
“strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The
Court explained that the operative interest involved was the nature of the deprivation, not the
language of the regulations. The cases cited by Mares applied the analytical framework disapproved
by Sandin, and thus are no longer viable in this regard. As the Magistrate Judge stated, the nature
of the deprivations imposed upon Mares do not implicate any constitutionally protected liberty
interests. Mares’ objections in this regard are without merit.
Mares also says that Sgt. Hanson made the statement “now I’m going to show you what a
petition will do for you” before writing the disciplinary case. This statement by itself is not
sufficient to show that but for the retaliatory motive, Mares would not have received the disciplinary
2

case. See Reese v. Skinner, 322 Fed.Appx. 381, 2009 WL 1066997 (5th Cir., April 21, 2009)
(allegation that “harassment of him intensified after he started filing grievances” is an insufficient
allegation of causation because “temporal proximity alone is insufficient to prove but for causation”),
citing Strong v. University Healthcare Systems, LLC, 482 F.3d 802, 808 (5th Cir. 2007).
In response to the Magistrate Judge’s recommendation that the retaliation claim be dismissed
without prejudice, Mares asks that rather than requiring him to file a new lawsuit, the retaliation
claim should be consolidated into Mares v. Dean, et al., cause no. 6:11cv115, a case which he had
previously filed. However, that case was dismissed on June 7, 2011, and no appeal was taken.
Furthermore, that case involved different incidents and different defendants, without any common
questions of fact or law, and so Mares has shown no basis for consolidating this claim into that case
even were it still open, which it is not. See Rule 42(a), Fed. R. Civ. P. Mares’ objections are without
merit.
The Court has conducted a careful de novo review of the pleadings in the cause, including
the original petition, the Report of the Magistrate Judge, and the Petitioner’s objections thereto.
Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is
correct and that the Petitioner’s objections are without merit. It is accordingly
ORDERED that the Petitioner’s objections are overruled and the Report of the Magistrate
Judge is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus be and hereby is
DISMISSED with prejudice. Any retaliation claims which may be cognizable in a civil rights
lawsuit under 42 U.S.C. §1983 are DISMISSED without prejudice. It is further
ORDERED that the Petitioner Arthur Mares is hereby DENIED a certificate of appealability
sua sponte. Finally, it is

3

ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED this 12th day of October, 2011.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

4