Graham v. Thaler

Filing 16

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 13 Memorandum and Recommendations, 9 MOTION for Summary Judgment With Brief In Support, 12 MOTION for Summary Judgment (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ERICK L. GRAHAM,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:13-CV-110
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court are Respondent’s Motion for Summary Judgment, (D.E.
9), and Petitioner’s Motion for Summary Judgment, (D.E. 12). On October 29, 2013,
United States Magistrate Judge B. Janice Ellington submitted a Memorandum and
Recommendation addressing these motions.

(D.E. 13).

The Magistrate Judge

recommends that Respondent’s Motion for Summary Judgment be granted, Petitioner’s
Motion for Summary Judgment be denied, and Petitioner’s claims be dismissed.
Petitioner timely filed his Objections on November 15, 2013. (D.E. 15).
In her Memorandum and Recommendation, the Magistrate Judge found that
Petitioner’s claims failed to state a claim under 28 U.S.C. § 2254. Petitioner’s Objections
are set out and discussed below.
First, Petitioner objects to the Magistrate Judge’s conclusion that the change in his
line class status does not create a cognizable liberty interest. The notion of a protected
liberty interest in a custodial classification is foreclosed by several Fifth Circuit
decisions. See e.g. Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (“[S]peculative,
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collateral consequences” associated with the loss of the opportunity to earn good-time
credits “do not create constitutionally protected liberty interests.”); Harper v. Showers,
174 F.3d 716, 719 (5th Cir. 1999) (“Inmates have no protectable . . . liberty interest in
custodial classifications.”); Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000) (“[T]he
timing of [a prisoner’s] release is too speculative to afford him a constitutionally
cognizable claim to the ‘right’ to a particular time-earning status . . .”). While Petitioner
recites the prospective consequences of his loss of line class status, he has not lost any
time already earned. Under those circumstances, he has not demonstrated a liberty
interest that triggers this Court’s jurisdiction.

Petitioner’s first objection is

OVERRULED.
Second, Petitioner objects to the Magistrate Judge’s conclusion that his
disciplinary hearing did not violate his constitutional due process rights.

Petitioner

complains that he was not allowed to produce evidence of his innocence and that the
disciplinary proceeding was decided by a single member as opposed to a multi-member
panel. In support of his arguments, Petitioner relies on Wolff v. McDonnell, 418 U.S. 539
(1974), which articulates the basic due process rights for disciplinary hearings when a
prisoner has been deprived of a recognized liberty interest.
“The protections of the Due Process Clause are only invoked when State
procedures which may produce erroneous or unreliable results imperil a protected liberty
. . . interest.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). A prisoner who
claims that a punishment or other condition of confinement rises to the level of a
protected liberty interest must demonstrate that the condition “imposes atypical and
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significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995). In Texas, prisoners do not have a protected
liberty interest in a particular line class status, loss of commissary privileges, or loss of
recreation privileges. See Luken, 71 F.3d at 193 (holding that the opportunity to earn
good time credits is not a constitutionally protected liberty interest); Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997) (holding that commissary and cell restrictions do not
implicate due process concerns).
Petitioner’s reliance on Wolff is misplaced because Wolff only applies when a
deprivation of a recognized liberty interest has occurred. The punishments suffered by
Petitioner affecting his line class status, and recreation, phone, and commissary privileges
do not rise to the level of a recognized liberty interest because they are not deprivations
which differ dramatically from those that are concomitant with the ordinary incidents of
prison life. Because the deprivations Petitioner complains of are not recognized liberty
interests, he cannot avail himself of the protections of the due process clause in
challenging the outcome of his disciplinary hearing. Accordingly, Petitioner’s second
objection is OVERRULED.
Third, Petitioner objects based on the TDCJ’s alleged failure to follow its own
drug testing procedures. He argues that when he was unable to produce a sample for
urinalysis, proper procedure was not followed and that this failure resulted in a
deprivation of his “procedurally protected liberty.” (D.E. 15, p. 3). As the Magistrate
Judge observed, “[A] prison official’s failure to follow the prison’s own policies,
procedures, or regulations does not constitute a violation of due process, if constitutional
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minima are nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). In
other words, the federal courts do not police a state agency’s compliance with its own
procedures when an alleged failure to comply does not implicate an interest protected by
the U.S. Constitution. Because Petitioner has not alleged a violation of a constitutionally
protected right, his third objection is OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Petitioner’s Objections, and all other relevant documents in the record, and having made
a de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Petitioner’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Respondent’s Motion for Summary
Judgment (D.E. 9) is GRANTED, Petitioner’s Motion for Summary Judgment (D.E. 12)
is DENIED, and this action is DISMISSED.

In the event that Petitioner seeks a

Certificate of Appealability, the request is DENIED.
ORDERED this 6th day of January, 2014.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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