Shafer v. Director, TDCJ-CID

Filing 8

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Petitioner's objections are overruled and the Report of the Magistrate Judge 6 is ADOPTED as the opinion of the District Court. The application for writ of habeas corpus is DISMISSED with prejudice. The Petitioner is DENIED a certificate ofappealability sua sponte. Any and all motions which may be pending in this civil action are hereby DENIED. Signed by Judge Michael H. Schneider on 01/13/14. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
HOWARD SHAFER

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:13cv892

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Howard Shafer, 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.
Shafer stated that he was convicted of the disciplinary offense of sexual misconduct when
he was accused of masturbating in public in his cell, but in fact he was on the recreation yard at the
time. As punishment, he received 30 days of cell, recreation, and commissary restrictions and a
temporary suspension of contact visitation privileges, but did not lose any good time. Shafer is
serving a life sentence and is not eligible for release on mandatory supervision in any event. Arnold
v. Cockrell, 306 F.2d 277, 279 (5th Cir. 2002) (prisoners serving life sentences are not eligible for
release on mandatory supervision).
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
application for habeas corpus relief be denied. The Magistrate Judge, citing Sandin v. Conner, 115
S.Ct. 2293, 2300-01 (1995) concluded that Shafer failed to show that the punishments imposed upon

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him did not implicate any constitutionally protected liberty interests, and so Shafer had shown no
basis for habeas corpus relief. Shafer filed objections to the Magistrate Judge’s Report on December
23, 2013.
In his objections, Shafer states first that he did not consent to proceed before the Magistrate
Judge. Consent of the parties is required only for the Magistrate Judge to preside over a case to its
conclusion and enter final judgment. A reference to the Magistrate Judge for preliminary matters,
including the entry of a Report recommending disposition of the case, does not require the consent
of the parties. Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir. 2002). This objection is without
merit.
After arguing the merits of his claim, Shafer contends that the punishments of 30 days of cell,
commissary, and recreation restrictions, and the temporary suspension of contact visitation
privileges, did place a hardship on ordinary prison life because “all my privileges were taken away
that an offender works so hard to keep.” He says that his family travels a number of miles to get a
contact visit, but they can’t because a guard accused him of masturbating. He states that if he could
get a court to make TDCJ show their records and recreation yard count sheets, these would tell the
whole story.
The question is not whether a hardship was imposed, but whether the hardship was an
atypical and significant one in relation to the ordinary incidents of prison life. The Fifth Circuit has
specifically held that commissary, cell, and recreation restrictions are not atypical and significant
hardships in relation to the ordinary incidents of prison life. Antone v. Preschel, 347 Fed.Appx. 45,
2009 WL 2981899 (5th Cir., September 18, 2009); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir.
2000). Restrictions on contact visits do not implicate a constitutionally protected liberty interest
because convicted prisoners have no constitutional right to visitation. Berry v. Brady, 192 F.3d 504,
508 (5th Cir. 1999). In addition, restrictions upon visitation privileges and commissary and
recreation privileges are simply “minimal and temporary changes in the conditions of confinement
and do not, therefore, implicate the protections afforded by the Due Process Clause.” Menchaca v.
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Thaler, civil action no. G-10-63, 2010 WL 1484711 (S.D.Tex., April 12, 2010), citing Madison v.
Parker, 104 F.3d 765, 767-68 (5th Cir. 1997).
The Fifth Circuit has held that in determining whether state action has violated an individual's
right to procedural due process, the district court must first address whether or not the state action
has deprived the person of a protected life, liberty, or property interest. Augustine v. Doe, 740 F.2d
322, 327 (5th Cir. 1984). In this case, the state action did not deprive Shafer of any protected life,
liberty, or property interests because the punishments in the disciplinary case did not infringe upon
any such interests. Sandin, 115 S.Ct. at 2300. Shafer’s objections are without merit.
The Court has conducted a careful de novo review of the pleadings in the cause, 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 (docket no. 6) 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. It is further
ORDERED that the Petitioner Howard Shafer is hereby DENIED a certificate of
appealability sua sponte. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
It is SO ORDERED.
SIGNED this 13th day of January, 2014.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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