Williams v. Texas Dept of Criminal Justice ID

Filing 14

MEMORANDUM ADOPTING 12 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 9/10/12. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ROCKY WILLIAMS #1593203

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v.

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TEXAS DEPARTMENT OF CRIMINAL
JUSTICE

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CIVIL ACTION NO. 9:12cv104

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Rocky Williams, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights 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. The sole named defendant is the Texas Department of Criminal Justice.
Williams complained that he is improperly being housed in administrative segregation
because he has been deemed a “security threat,” even though he had no disciplinary record justifying
this designation prior to his placement in segregation. He says that at one time, he was an outside
trusty who went to work in the free world on the community service squad for the Tyler County road
crew. Williams asserted that he has never had a fight in TDCJ and never had a major crisis until he
came to segregation.
Williams refers to the “rage and frustration” which comes from being “totally isolated 24/7"
and says that he filed Step One and Step Two grievances but had received no response at the time
of the filing of his original complaint, although he later did receive responses and submitted them
to the Court. He acknowledged that he tried to go through the GRAD (Gang Renunciation and
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Dissociation) program but was told that his file had been “lost.” Williams said that he tried to sign
up for the GRAD program in 2005, seven years ago, but concedes that he got out of prison and then
returned; however, he states that he returned to prison three years ago and is “still no closer to going
back to general population.” For relief, Williams asks that he be returned to general population.
After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed. The Magistrate Judge noted first that Williams stated that he tried to enroll
in the GRAD program, which is for confirmed gang members who wish to dissociate from the gang.
As a confirmed gang member, TDCJ policy requires that Williams be housed in administrative
segregation; the fact that he has a clear disciplinary record does not affect this classification.
The Magistrate Judge cited Fifth Circuit precedent as holding that “administrative
segregation, without more, simply does not constitute the deprivation of a constitutionally cognizable
liberty interest.” Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). This is because absent
extraordinary circumstances, administrative segregation is incident to the ordinary life as a prisoner.
Hernandez v. Velasquez, 522 F.3d 556, 562 (5th Cir. 2008). Such extraordinary circumstances could
include such factors as retention in administrative segregation for 30 years or confinement in a
facility where almost all human contact is prohibited, inmates remain in their cells for 23 hours a day
with a light on at all times, and otherwise eligible inmates are disqualified from parole review simply
by reason of their confinement in that facility.
In this case, the Magistrate Judge said, Williams did not point to any extraordinary
circumstances which could render his confinement in administrative segregation an atypical or
significant hardship in relation to the ordinary incidents of prison life. He indicates that he has been
in segregation for three years since his return to prison, but the Fifth Circuit has rejected a claim that
six years in segregation rises to the level of a protected liberty interest. Broussard v. Collins, 209
F.3d 178, 2000 WL 283155 (5th Cir., February 1, 2000); see also Martin v, Scott, 156 F.3d 578, 580
(5th Cir. 1998) (affirming dismissal as frivolous of claim challenging placement in administrative

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segregation because plaintiff did not show any extraordinary circumstances and thus did not
implicate a protected liberty interest).
Williams filed objections to the Magistrate Judge’s Report on September 6, 2012. In his
objections, Williams says that he has been in segregation for a total of 10 years, although he
acknowledges that he was released from prison and returned three years ago. He concedes that he
has been tagged as a gang member, although he says that this is “unjust.” Williams states that he put
in for the GRAD program, but that the only way to go through this program is to sign papers saying
that “you are in fact STG, [i.e. a member of a security threat group], even though you are or not is
irrelevant.”1
Williams says that because he has been confirmed as a gang member, he has been denied
parole three times “for being an active gang member or a leader in a gang,” even though he is not
and never has been. He again complains about his file being “lost” and questions why he has not
been allowed to go through the GRAD program, saying that if TDCJ had followed its own policies,
he would be back in the general population by now.
Williams goes on to say that he finally received his Step One and Two grievances back and
that he has sent them to the Court. The response to Williams’ first Step One grievance, which he
signed in December of 2011, was that he was on the list for dissociation but that the list is completed
in the order that inmates are placed on the list. He also must meet the criteria before he is accepted
into the GRAD program. The response to Williams’ second Step One grievance, which Williams
signed on April 15, 2012, states that a dissociation investigation was commenced on April 16, 2012,
and that he will be interviewed by the Security Threat Group Office in the near future, but that the
investigation could take up to a year to complete. Once the investigation is complete, the Security
Threat Group Monitoring Office will make a decision as to his placement in the GRAD program.

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The most dangerous prison gangs are known as “security threat groups” in TDCJ parlance.
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Next, Williams complains that his confinement in segregation denies him the right to seek
help in rehabilitation, and he cannot take any classes or seek “assistance in self help.” He says that
TDCJ will not acknowledge his requests to go to the GRAD program, despite the responses to the
grievances which he sent to the Court, and again complains that he is being denied parole and housed
in segregation based on false accusations of being a gang member.
Williams’ objections are without merit. As the Magistrate Judge correctly concluded,
confinement in administrative segregation does not implicate a constitutionally protected liberty
interest absent extraordinary circumstances because it is “incident to the ordinary life of a prisoner.”
Williams has not shown extraordinary circumstances in his case; he has been confined in segregation
for three years since his return to prison, which is not an unusual length of time, particularly in light
of the Fifth Circuit’s holding that six years in segregation did not rise to the level of a protected
liberty interest. Nor does Williams’ contention that his identification as a gang member is incorrect
show the deprivation of a protected liberty interest. Luken, 71 F.3d at 193; Pichardo v. Kinker, 73
F.3d 612, 613 (5th Cir. 1996).
The fact that Williams has been unable to access any rehabilitative programs does not set out
a cognizable claim under 42 U.S.C. §1983. Green v. McKaskle, 788 F.2d 1116, 1125 (5th Cir.
1986); Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977). Even if true that TDCJ’s handling
of his case violated the prison’s own policies, this also does not set out a viable claim. Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir.
1986). Nor does the fact that prison officials have used confirmation of gang membership to deny
Williams parole show any constitutional violation because Williams has no protected liberty interest
in release on parole. Creel v. Keene, 928 F.2d 707, 708-09 (5th Cir. 1991); Allison v. Kyle, 66 F.3d
71, 74 (5th Cir. 1995). Because Williams has failed to show any constitutional violations, his lawsuit
must be dismissed.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review,
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the Court has concluded that the Report of the Magistrate Judge is correct and that 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. 12) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice
as frivolous and for failure to state a claim upon which relief may be granted. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED. Finally, it is
ORDERED that a copy of this opinion shall be sent by the Clerk to the Administrator of the
Strikes List for the Eastern District of Texas.
So ORDERED and SIGNED this 10 day of September, 2012.

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Ron Clark, United States District Judge

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