Bangmon v. Lance et al

Filing 19

ORDER OF PARTIAL DISMISSAL and SEVERANCE. Party Henry Lance terminated. Cause of action against Party Kelly to remain in current cause of action. Plaintiff must notify the Court regarding payment of separate filing fees within 30 days.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JERRY LENEZ BANGMON,
Plaintiff,
VS.
HENRY LANCE, et al,
Defendants.

January 22, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:17-CV-138
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ORDER OF PARTIAL DISMISSAL AND SEVERANCE
Jerry Lenez Bangmon (TDCJ #01568309), an inmate in the custody of the Texas
Department of Criminal Justice (“TDCJ”), has filed a complaint under 42 U.S.C. § 1983
in which he alleges: (1) that he was denied procedural due process in prison disciplinary
proceedings; (2) that Defendant Shenika Kelly, a correctional officer, retaliated against
him for filing a grievance against her; and (3) that Defendant Henry Lance, another
correctional officer, smashed Bangmon’s hand when Bangmon refused to eat a meal
containing pork. These claims are independent of each other and do not belong in one
lawsuit. Moreover, the procedural due process claims, as explained below, fail to state a
claim because Bangmon is not eligible for release to mandatory supervision. The Court
will dismiss the procedural due process claims and sever the claims against Kelly from
those against Lance. Pursuit of both severed cases will entail Bangmon’s paying two
separate filing fees. If Bangmon only wishes to pay one fee, the Court will give Bangmon
30 days to inform the Court as to which of the two severed cases he does not want to
pursue.

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A. The procedural due process claims
Bangmon first alleges that he was deprived of procedural due process in two
prison disciplinary proceedings. After one of those proceedings, he was placed on
recreation and commissary restriction for 20 days (Dkt. 2 at p. 3); after the other, he was
placed on recreation and commissary restriction for 30 days, had his custodial
classification reduced, and lost 150 days of good time (Dkt. 4 at p. 3). Bangmon, who is
serving a sentence for aggravated kidnapping, is not eligible for release to mandatory
supervision. See TEX. GOV’T CODE § 508.149(a)(4).
An inmate’s rights in the prison disciplinary setting are governed by the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Wolff v.
McDonnell, 418 U.S. 539, 557 (1974). A prisoner charged with institutional rules
violations is only entitled to relief under the Due Process Clause when the disciplinary
action resulted in a sanction that infringed upon a constitutionally protected liberty
interest. Sandin v. Conner, 515 U.S. 472, 483–87 (1995) (“[N]either the Hawaii prison
regulation in question, nor the Due Process Clause itself, afforded Conner a protected
liberty interest that would entitle him to the procedural protections set forth in Wolff.”).
These protected liberty interests can emanate from either the Due Process Clause itself or
from state law—Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989)—
but the range of protected interests “has been dramatically narrowed” by the Supreme
Court, particularly in its Sandin opinion. Orellana v. Kyle, 65 F.3d 29, 31–32 (5th Cir.
1995). The cases indicate that, in order to trigger protection under the Due Process Clause
directly (i.e. without implicating a state-created liberty interest), state action must subject
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the prisoner to consequences that are “qualitatively different from the punishment
characteristically suffered by a person convicted of crime.” Toney v. Owens, 779 F.3d
330, 337 (5th Cir. 2015) (quoting Vitek v. Jones, 445 U.S. 480, 493 (1980)); see also
Thompson, 490 U.S. at 460. Such consequences can include, for instance, an involuntary
transfer from a state prison to a mental hospital for psychiatric treatment; the forcible
administration of psychotropic drugs; and the imposition of sex-offender classification
and conditions on a prisoner who has not been convicted of a sex offense. See Vitek, 445
U.S. at 493–94; Washington v. Harper, 494 U.S. 210, 221–22 (1990); Toney, 779 F.3d at
336–37. Similarly, state-created liberty interests protected by the Due Process Clause
“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.” Sandin, 515 U.S. at 484
(citations omitted). A state’s action can also implicate procedural due process protection
when that action “will inevitably affect the duration of [the prisoner’s] sentence.” Id. at
487.
Bangmon’s claims do not come within the range of protected liberty interests. The
reduction in Bangmon’s time-earning classification may have affected Bangmon’s
eligibility for early release from prison. But the Due Process Clause does not include a
right to conditional release before the expiration of a valid sentence, and the Texas parole
statutes do not create a protected liberty interest because parole in Texas is entirely
discretionary. Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S.
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1, 7 (1979); Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir. 2007); Kyle, 65 F.3d at
32. Moreover, the Fifth Circuit has held that reductions in a prisoner’s time-earning
status, and the potential impact of those reductions on good-time credit earning ability,
are too attenuated from the prisoner’s ultimate release date to invoke the procedural
guarantees of the Due Process Clause. Malchi v. Thaler, 211 F.3d 953, 958–59 (5th Cir.
2000); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); Neals v. Norwood, 59 F.3d 530,
533 (5th Cir. 1995). The changes in the conditions of Bangmon’s confinement that are
attendant to the reduction in his custody classification do not affect the duration or fact of
Bangmon’s confinement and do not constitute atypical, significant hardships that go
beyond the ordinary incidents of prison life. They therefore do not implicate due process
concerns. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); Malchi, 211 F.3d at 958.
The same is true of the temporary limitations imposed on Bangmon’s privileges. Id.
Bangmon’s loss of 150 days of good-time credit could have been more
problematic than the other sanctions. As the Fifth Circuit has explained, Texas provides
two general ways in which an inmate can become eligible for early release: (1) parole,
which is completely discretionary; and (2) mandatory supervision, under which early
release is virtually assured (parole officials retain a modicum of discretion in the matter)
once an inmate’s time served added to his good-time credit equals the length of his
sentence. Teague, 482 F.3d at 774–77. Texas state inmates who are eligible for release on
mandatory supervision have a protected liberty interest in their previously earned goodtime credit. Id. However, Bangmon, as previously noted, is not eligible for release on
mandatory supervision. See TEX. GOV’T CODE 508.149(a)(4). Because he is not eligible
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for release on mandatory supervision, he does not have a protected liberty interest in his
good-time credit. Madison, 104 F.3d at 768–69.
Bangmon has not stated a viable procedural due process claim. None of the
sanctions imposed on Bangmon either constituted an “atypical and significant hardship”
or inevitably affected the duration of Bangmon’s sentence. The sanctions, as a result,
were simply not Constitutionally actionable.
B. The retaliation and excessive force claims
Bangmon’s retaliation and excessive force claims, on the other hand, warrant
further exploration. However, they are unrelated and do not belong in the same lawsuit,
so the Court will sever them. An attempt to file multiple lawsuits in one complaint
violates Federal Rules of Civil Procedure 18 and 20, which set out the limits on joinder of
claims and parties. The Fifth Circuit has discouraged the “creative joinder of actions” by
prisoners attempting to circumvent the fee-payment and three-strikes provisions of the
Prison Litigation Reform Act (“PLRA”). See Patton v. Jefferson Correctional Center,
136 F.3d 458, 464 (5th Cir. 1998); see also, e.g., Covarrubias v. Foxworth, No. 6:13-CV812, 2017 WL 1159767 (E.D. Tex. Mar. 29, 2017) (severing prisoner lawsuit consisting
of unrelated claims into three separate cases); Nelson v. Francis, No. 2:02-CV-347, 2003
WL 21766528 (N.D. Tex. July 29, 2003) (severing prisoner lawsuit consisting of
unrelated claims into seven separate cases). Bangmon has filed an application for leave to
proceed in forma pauperis (Dkt. 15) and a prisoner trust fund account statement (Dkt.
10). This information is sufficient for the Court to charge a filing fee under the PLRA,

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but Bangmon is again advised that he must pay two filing fees if he wants to pursue both
of these cases.
Based on the foregoing, the Court ORDERS as follows:
1. This case is SEVERED into two separate lawsuits. The first lawsuit, which
will carry this case number, will consist of the retaliation claim against
Defendant Shenika Kelly. The second lawsuit will carry a case number
assigned by the District Clerk and will consist of the excessive force claim
against Defendant Henry Lance.
2. Within 30 days of the date of this order, Bangmon must notify the Court
as to whether he wishes to pay two filing fees. If Bangmon only wishes to
pay one filing fee, he must specify which of the two severed cases he wants
to pursue. The other case will be dismissed without prejudice to refiling.
The Clerk is directed to provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 22nd day of January, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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