Nubine v. Thaler
Filing
18
MEMORANDUM OPINION AND ORDER denying 14 MOTION for Summary Judgment, denying 16 MOTION for Hearing re: 13 Response, denying 14 MOTION for Summary Judgment, granting 10 MOTION to Dismiss As Moot with Brief in Support. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CLYDE NUBINE,
TDCJ-CID NO. 398312,
Petitioner,
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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CIVIL ACTION NO. H-12-1283
MEMORANDUM OPINION AND ORDER
Clyde Nubine filed a Petition for a Writ of Habeas Corpus by
a Person in State Custody (Docket Entry No. 1)' challenging his
disciplinary proceeding.
Pending before the court is Respondentfs
Motion to Dismiss as Moot with Brief in Support ("Respondent's
Motion")
(Docket Entry No. 10) to which Nubine filed a Response
("Nubinefs Response") (Docket Entry No. 13).
Also pending before
the court are Nubinef s Motion for Summary Judgment (Docket Entry
No. 14) and Motion for Hearing (Docket Entry No. 16).
For the
reasons stated below, the court will grant Respondent's Motion to
'petition for a Writ of Habeas Corpus By a Person in State
Custody ("Nubine's Petition"), Docket Entry No. 1.
* ~ u b i n ealso filed a Supplemental Pleading to support his
Petition, along with two Letters of Inquiry regarding his Petition;
Motion for Leave of Court to File Supplemental Pleading to Nubinel s
Petition, Docket Entry No. 8; Letter of Inquiry, Docket Entry
No. 9; Second Letter of Inquiry, Docket Entry No. 12.
Dismiss and will deny Nubiners Petition, Nubiners Motion
for
Summary Judgment, and Nubiners Motion for Hearing.
I.
A.
Procedural History and Claims
Procedural History
Nubine was sentenced on April 8, 1985, to seventy-five years
in prison for murder with a deadly weapon.3
challenge
his
state
court
judgment,
but
Nubine does not
instead
challenges
disciplinary case number 20120139116, in which he was found guilty
of the offense of threatening to inflict harm on a prison officer
on January 23, 2012 . 4
Nubine' s punishment for this disciplinary
violation included a loss of 45 days of commissary and recreation
privileges, a demotion from S3 classification to L1 classification,
and a loss of ten days of good-time
red it.^
Nubine filed a Texas Department of Criminal Justice (TDCJ)
Step 1 Grievance challenging the outcome of the disciplinary
3~ubiners
Petition, Docket Entry No. 1, p. 2; Commitment
Inquiry, Exhibit A to Respondent's Motion, Docket Entry No. 10-1,
pp. 2-3.
Page citations to state court records, including the
disciplinary hearing records and disciplinary grievance records,
are to the pagination imprinted by the federal court's electronic
filing system at the top right of the document. Page citations to
the federal briefs are to the native page numbers in the documents.
4 ~ u b i n e rPetition, Docket Entry No. 1, pp. 2 & 5 (challenging
s
disciplinary case number 20120139116); TDCJ Disciplinary Report and
Hearing Record, Docket Entry No. 11-1, p. 3 (hearing was held on
January 23, 2012).
5~ubine's Petition, Docket Entry No. 1, p. 5; TDCJ
Disciplinary Report and Hearing Record, Docket Entry No. 11-1,
p. 3.
proceeding, and the reviewing warden upheld the guilty verdict on
February 7, 2012.6
Nubine then filed a TDCJ Step 2 Grievance
appeal, and in response the TDCJ overturned the guilty verdict on
April 9, 2012, and notified Nubine that his records would be
corrected.
B.
petitioner's Claims and Respondent's Response
Nubine alleges three due process violations as bases for
habeas
relief.*
In his
first
claim Nubine
disciplinary policies that allow a prisoner's
challenges
TDCJ
release date and
sentence duration to be changed as punishment for a disciplinary
v i ~ l a t i o n . ~Specifically, Nubine claims his due process rights
were violated when he received disciplinary punishment that changes
the duration of his sentence, and he requests an injunction against
the TDCJ from imposing disciplinary punishments that alter prisoner
release dates.l o
In his
second
claim Nubine
alleges
that his
Discipline
Hearings Officer deprived him of ten good-time days without due
6~~~~
Step 1 Offender Grievance Form, Docket Entry No. 11-2,
pp. 5-6.
7~~~~
Step 2 Offender Grievance Form, Docket Entry No. 11-2,
pp. 3-4.
'~ubine's Petition,
Attachments 1-2.
9~
Docket
at 6 and Attachment 1.
Entry
No.
1,
pp.
6-7
and
process of law because she refused to hear his version of the facts
before imposing disciplinary punishment.''
Nubine requests that the
Disciplinary Hearings Officer and all persons who work with her be
restrained or
enjoined
from depriving Nubine
of his
liberty
interest again in the future.''
In
his
third
claim
Nubine
alleges
that
TDCJ
grievance
procedures, particularly the TDCJfs ability to delay review of his
Step 2 Grievance appeal, violate his due process rights.13 Nubine
requests an injunction against the TDCJ from using grievance
procedures that hinder the review of Step 2 Grievance appeals.14
The Respondent
alleges that Nubine' s Petition
should be
dismissed with prejudice because his claims are moot.15
11.
Analvsis
Nubiners claims in his habeas Petition are moot.
Article 111,
§
Under
2 of the Constitution, federal courts have no
authority to decide moot questions.
See Louisiana Environmental
Action Network v. United States EPA, 382 F.3d 575, 580-81 (5th Cir.
2004).
A case becomes moot when either "the issues presented are
llld. at 6 and Attachments 1-2.
-
131d. at 7 and Attachment 2.
141d.
15~espondentrs
Motion, Docket Entry No. 10, pp. 3-5.
no longer 'live, ' " or a litigant "lack[s] a legally cognizable
interest in the outcome."
Resident Council of Allen Parkway
Villase v. United States Dept. of Housins
&
Urban Development, 980
F.2d 1043, 1048 (5th Cir. 1993) (internal citations and quotations
omitted).
In response to Nubine's
Step 2 Grievance appeal, the TDCJ
overturned Nubine's guilty verdict and removed this offense from
Nubine's disciplinary record.16 Nubine's first claim, challenging
the punishments imposed for his disciplinary offense, is no longer
a live issue because the TDCJ cleared Nubine's
offense
and
overturned.
the
punishments
Nubine's
after
the
guilty
record of the
verdict
was
second claim, challenging the disciplinary
proceeding in which Nubine was convicted of the offense and given
punishment, is no longer a live issue because the offense has been
overturned and his record has been cleared. Nubiners third claim,
challenging
the
TDCJ
grievance
process
through
which
Nubine
appealed his guilty verdict, is no longer a live issue because
Nubine's verdict was successfully appealed and overturned.
To demonstrate that his claims still present live issues
Nubine alleges that part of his punishment for the disciplinary
1 6 ~ Step~ 2 JOffender Grievance Form, Docket Entry No. 11-2,
~
pp. 3-4; Disciplinary Records, Exhibit B to Respondent's Motion,
Docket Entry No. 10-2, p. 2 (showing that on May 3, 2012, Nubine's
Disciplinary Records no longer included Disciplinary Case Number
20120139116, the disciplinary case that is the subject of Nubine's
Petition).
offense remains in place because his 53 status was never returned
and his L1 status remains in effect.17
However, Respondent has
presented evidence that Nubine's offense and resulting punishments,
including classification demotion, have been completely removed
from his record.''
Nubine1s disciplinary record indicates that his
current L1 status is the result of a more recent disciplinary
offense that is not at issue in this habeas petition.lg
Nubine
provides no evidence to demonstrate that he continues to suffer
from the punishments imposed for the overturned disciplinary
offense at issue in this action.
The court concludes that all of
Nubiners claims are no longer live issues, and are therefore moot . 2 0
17
Second Letter of Inquiry, Docket Entry No. 12, p. 1.
I8~isciplinary Records, Exhibit B to Respondentrs Motion,
Docket Entry No. 10-2, p. 2 (showing that on May 3, 2012, Nubine' s
Disciplinary Records no longer included Disciplinary Case Number
20120139116, the disciplinary case that is the subject of Nubine's
Petition).
191d. (indicating that Nubiners current classification status
is "Ll," and his classification was demoted from "S3-L1" on
January 23, 2012, for Disciplinary Case Number 20120143429) .
Nubine argues that in Disciplinary Case Number 20120143429 his
classification was demoted from "L1 to L2" status and not from "S3
to L1" status, but the evidence he provides is an unofficial (and
largely illegible) document; Nubiners Response, Docket Entry
No. 13, pp. 11-12; Appendix to Nubine's Response, Docket Entry
No. 15, Appendix 3.
*O~ecause
the court further concludes that Nubine's claims do
not allege actionable violations of due process, Nubiners argument
that his claims are "capable of repetition yet evading review" on
the merits does not defeat the mootness of his claims; Nubine's
Response, Docket Entry No. 13, p. 13.
Moreover, even assuming that Nubine's claims were not moot,
the claims would still not be actionable.
Courts have recognized
rison disciplinary proceedings are not part of a criminal
that " ' [p]
prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.'"
Broussard v. Johnson, 253 F.3d 874,
876 (5th Cir. 2001) (suotins Wolff v. McDonnell, 94 S.Ct. 2963,
2975 (1974)). An inmate's due process rights are implicated only
when
the
disciplinary
measures
taken
against
him
inflict
deprivations that are atypical and significant in relation to the
ordinary incidents of prison life.
Sandin v. Conner, 115 S.Ct.
2293, 2300 (1995).
Nubine's
first two claims, challenging his disciplinary
proceeding and resulting punishments, are not actionable. The TDCJ
imposed
the
following
punishments
for
Nubine's
offense
of
threatening to inflict harm on an officer: commissary restriction,
recreation restriction, demotion from S3 classification to L1
classification, and loss of ten good-time daysmZ1 The commissary
and recreation restrictions imposed on Nubine are merely changes in
the conditions of his confinement, which do not implicate due
process concerns.
Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
1997). Such restrictions do not constitute "the type of atypical,
significant deprivation" that would be actionable.
I . See also
d
21~ubine's Petition, Docket Entry No. 1, p. 5; TDCJ
Disciplinary Report and Hearing Record, Docket Entry No. 11-1,
p. 3.
Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) ; Pichardo v.
Kinker, 73 F.3d 612, 612-13 (5th Cir. 1996).
Nubine's
demotion
in classification, which under
certain
circumstances might reduce his ability to earn future good-time
credits and adversely affect his
chances for parole,
is not
actionable because the demotion does not have a definite and clear
impact on the length of his prison confinement.
at 957.
Malchi, 211 F.3d
A prisoner does not have a constitutionally cognizable
right to a particular time-earning status. Venesas v. Henman, 126
F.3d 760, 765 (5th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193
(5th Cir. 1995); Wilson v. Budnev, 976 F.2d 957, 958 (5th Cir.
1992) . Nor do Texas prisoners have any liberty interest in parole.
Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995).
v. Perrv, 259 Fed. App'x.
See also Gordon
651, 653 (5th Cir. 2007) (unpublished)
(Texas prisoners have no property interests in obtaining parole).
Moreover, Nubine's
loss of ten days of good-time credit and
demotion in classification is not actionable because Nubine was
convicted of murder with a deadly weapon, which bars him from using
good-time credits to obtain an early release from prison.
GovrT CODE ANN. 5 508.149 (a) (West 2012) .
See TEX.
Therefore, Nubine could
not assert an actionable claim as a result of the disciplinary
proceeding regardless of whether he forfeited ten good-time days,
or whether he would be deprived of any future good-time days as a
result of his demotion in classification.
F.3d 29, 31-32 (5th Cir. 1995)
("
Orellana v. Kvle, 65
[I]t is difficult to see that any
other deprivations in the prison context, short of those that
clearly impinge on the duration of confinement, will henceforth
qualify
for
constitutional
'libertyf
status.").
The
court
therefore concludes that Nubiners first two claims, challenging his
disciplinary proceeding and punishment, are not actionable.
Nubiners third claim, challenging the TDCJrs review of his
Step 2 Grievance appeal, is also not actionable. Nubine challenges
the TDCJrs ability to extend the TDCJ procedural time limit for
reviewing a Step 2 Grievance appeal.
Because prisoners have no
constitutional interest in a prison official's
failure to follow
procedures, Nubine has no constitutional interest in the TDCJ's
failure to review Nubiners Step 2 Grievance appeal without granting
a delay.
Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009)
("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 minima are nevertheless met.") (internal
quotation marks
and
citation omitted).
The
court
therefore
concludes that Nubine's third claim, challenging the TDCJrs review
of his Step 2 Grievance appeal, is not actionable.
To the extent that Nubine requests injunctions against the
TDCJ applying its disciplinary policies and grievance procedures in
the future, the court has no basis for granting such injunctive
relief because Nubiners due process rights have not been violated.
Should Nubine be subject to future disciplinary proceedings, he can
again pursue the administrative review process, and if he is not
satisfied, he can then file another habeas petition.
For all the reasons stated in this Memorandum Opinion and
Order, Nubiners Motion for Summary Judgment will be denied.
The
court further concludes that it can make an informed decision
without a hearing, and as such, Nubine's Motion for Hearing will
also be denied. Barrientes v. Johnson, 221 F. 3d 741, 770 (5th Cir.
2000) (stating the rule that a district court has discretion to
deny a habeas petitioner's request for an evidentiary hearing when
it has "sufficient facts before it to make an informed decision on
the
merits
of
[the habeas
petitioner's]
claim.")
(internal
quotation marks and citation omitted).
111.
Although
Appealability
Nubine
C e r t i f i c a t e of Appealabilitv
has
not
yet
requested
("COA") , the court may
Certificate
deny a COA
Alexander v. Johnson, 211 F.3d 895, 898
curiam).
a
of
sua sponte.
(5th Cir. 2000)
(per
To obtain a COA for claims denied on the merits Nubine
must make a substantial showing of the denial of a constitutional
right. 28 U.S.C.
§
2253(c) (2); Tennardv. Dretke, 124 S. Ct. 2562,
2569 (2004). To make such a showing Nubine must demonstrate that
it is debatable among reasonable jurists whether a court could
resolve the issues in a different manner or that the issues
presented are adequate to deserve encouragement to proceed further.
Tennard, 124 S. Ct. at 2569.
For the reasons stated in this Memorandum Opinion and Order,
Nubine has not made
a substantial showing of a denial of a
constitutional right. Accordingly, a Certificate of Appealability
will not issue in this case.
IV.
Conclusion and O r d e r
For the reasons explained above, the court finds that Nubine's
Petition is denied as moot and is also denied on the merits. The
court ORDERS the following:
1.
Respondent's Motion to Dismiss with Brief
Support (Docket Entry No. 10) is GRANTED.
in
2.
Nubine's Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No. 1) is
DENIED.
3.
Nubine's Motion for Summary Judgment (Docket Entry
No. 14) is DENIED.
4.
Nubine's Motion for Hearing (Docket Entry No. 16)
is DENIED.
5.
A Certificate of Appealability is DENIED.
SIGNED at Houston, Texas, on this the 7th day of August, 2012.
UNITED STATES DISTRICT JUDGE
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