Florence v. Director TDCJ-CID
Filing
34
OPINION AND ORDER granting 21 Motion for Summary Judgment; denying 20 Motion, 24 Motion to Compel, 25 Motion to Compel, 26 Motion, 27 Motion for Summary Judgment, 28 Motion for Summary Judgment, 29 Motion for Leave to File, and 33 Motion for Leave to File ; granting 30 Motion to Substitute Attorney Attorney Kate E. Walker terminated.(Signed by Judge Melinda Harmon) Parties notified.(rvazquez)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THOMAS WAYNE FLORENCE,
Petitioner,
VS.
RICK THALER,
Respondent.
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 4:12-CV-2440
MEMORANDUM AND ORDER
Thomas Wayne Florence, a state inmate incarcerated in the Texas Department of
Criminal Justice, Correctional Institutions Division, has filed a pro se petition for a writ of
habeas corpus. (Docket Entry No. 3.) Florence’s habeas petition challenges the result of a
prison disciplinary proceeding. Respondent William Stephens has filed a motion for summary
judgment. (Docket Entry No. 21.)1 Also pending are several motions Florence has filed in
support of his habeas petition. (Docket Entry Nos. 20, 24, 25, 26, 27, 28, 29, 33). After
reviewing the pleadings, the record, and the applicable law, the Court grants summary judgment
in Respondent’s favor, denies Florence’s pending motions, and denies his petition. The Court
will not certify any issue for consideration by the Court of Appeals for the Fifth Circuit.
BACKGROUND
Florence is presently incarcerated at the Allred Unit pursuant to two judgments: (1) a
seventy year sentence for sexual assault of a child pursuant to a judgment and sentence of the
56th District Court of Galveston County, Texas in cause number 10CR1217; and (2) a thirty-five
1
Effective June 1, 2013, William Stephens succeeded Rick Thaler as the Director
of the Correctional Institutions Division of the Texas Department of Criminal Justice. Pursuant
to Rule 25 of the Federal Rules of Civil Procedure, Stephens “is automatically substituted as a
party.” FED.R.CIV.P. 25(d).
year sentence for possession of a controlled substance pursuant to a judgment and sentence of the
122nd District Court of Galveston County, Texas. Florence does not attack his underlying
convictions in the instant habeas action. Instead, he challenges the result of a prison disciplinary
proceeding lodged against him at the Allred Unit.
On April 11, 2012, Florence received notice that he was being charged in disciplinary
case #20120218178 with violating prison rules by failing to obey an order.2 A hearing was held
on April 17, 2012. The disciplinary hearing officer reviewed the offense report and considered
the charging officer’s testimony. Florence had an opportunity to respond, but would not address
the charge beyond claiming that the prison officials never investigated his case. The disciplinary
hearing officer found petitioner guilty and assessed Florence’s punishment at thirty days loss of
recreation privileges, thirty days loss of commissary privileges, and prison status remaining at
line three with regard to time-earning classification.
Florence filed Step 1 Grievance Number 2012144131 on April 19, 2012. The grievance
was denied on May 2, 2012. Florence appealed that decision by submitting a Step 2 Grievance
on May 9, 2012. The Step 2 Grievance was denied on July 13, 2012.
On July 13, 2012, Florence submitted a federal petition for a writ of habeas corpus.
Florence’s petition raises four grounds for relief:
1.
The officer investigating his disciplinary charge did not follow proper
procedures.
2.
The officer presiding at Florence’s disciplinary hearing was biased against
him and violated his right to a defense by not allowing him to call
witnesses.
3.
The investigative officer initiated the disciplinary charges against him in
2
The Court takes its review of the facts from the state court records. (Docket Entry
No. 22.)
2
retaliation for a previous confrontation.
4.
The investigator in his Step 1 Grievance did not follow proper procedures.
Respondent filed a motion for summary judgment alleging that Florence’s claims are not
cognizable in a habeas corpus petition. (Docket Entry No. 21.) Florence has filed several
motions, including two requests for Respondent to provide admissions under FED. R. CIV. P. 36
(Docket Entry No. 20, 24); a motion complaining that Respondent did not submit all relevant
records (Docket Entry No. 25); motions seeking leave to submit evidence (Docket Entry Nos. 26,
28, 29, 33); and a cross-motion for summary judgment (Docket Entry No. 27).
LEGAL STANDARDS
To be entitled to summary judgment, the pleadings and summary judgment evidence
must show that there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of Law. FED. R. CIV. P. 56(c). The moving party bears the burden of
initially pointing out to the court the basis of the motion and identifying the portions of the
record demonstrating the absence of a genuine issue for trial. Duckett v. City of Cedar Park,
Tex., 950 F.2d 272, 276 (5th Cir. 1992). Thereafter, “the burden shifts to the nonmoving party to
show with ‘significant probative evidence’ that there exists a genuine issue of material fact.”
Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (quoting Conkling v. Turner,
18 F.3d 1285, 1295 (5th Cir.1994)). The Court may grant summary judgment on any ground
supported by the record, even if the ground is not raised by the movant. U.S. v. Houston Pipeline
Co., 37 F.3d 224, 227 (5th Cir. 1994).
ANALYSIS
The federal writ of habeas corpus is an extraordinary remedy which does not extend to
any prisoner unless he is “in custody in violation of the Constitution or laws or treaties of the
3
United States.” 28 U.S.C. §§ 2241(c)(3) & 2254(a); Brecht v. Abrahamson, 507 U.S. 619, 63334 (1993) (explaining that “the writ of habeas corpus has historically been regarded as an
extraordinary remedy, a bulwark against convictions that violate fundamental fairness”).
Florence can only prevail on his federal habeas corpus petition if he has suffered a constitutional
violation.
In the disciplinary hearing context, the Due Process Clause of the Fourteenth Amendment
to the United States Constitution governs a prisoner’s rights, if any exist.
See Wolff v.
McDonnell, 418 U.S. 539, 555 (1974). However, the Due Process Clause only entitles prisoners
charged with institutional rule violations to rights when the disciplinary action may result in a
sanction that will infringe upon a constitutionally protected liberty interest. See Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). Federal law limits such interests “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.” Id. at 484
(internal citations omitted). In Texas, only those sanctions resulting in the loss of good-time
credits by inmates eligible for release on mandatory supervision or otherwise directly and
adversely affecting release on mandatory supervision will impose upon a protected liberty
interest. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). In this case, Florence
cannot demonstrate a due process violation.
Florence complains about loss of recreation privileges, loss of commissary privileges,
and imposition of continuing classification status at line three.
According to well-settled
precedent, such sanctions are “merely changes in the conditions of [an inmate’s] confinement”
that do not implicate due process concerns. Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
4
1997). Imposing restrictions on commissary privileges or recreation privileges is not the type of
sanction that poses an atypical or significant hardship beyond the ordinary incidents of prison
life. See Madison, 104 F.3d at 768; see also Sandin, 515 U.S. at 486 (refusing to recognize a
liberty interest in administrative segregation). The Fifth Circuit has also decided that changes in
a prisoner’s classification status and its potential impact on good-time credit earning ability are
not protected by the Due Process Clause. See Malchi, 211 F.3d at 958; Luken v. Scott, 71 F.3d
192, 193 (5th Cir. 1995) (holding that “[t]he loss of the opportunity to earn good-time credits,
which might lead to earlier parole, is a collateral consequence of [petitioner’s] custodial status.
Yet, such speculative, collateral consequences of prison administrative decisions do not create
constitutionally protected liberty interests.”). In the absence of a protected interest, Florence
cannot show that he is entitled to habeas corpus relief from any of these sanctions.
Accordingly, Respondent is entitled to summary judgment.
CERTIFICATE OF APPEALABILITY
The Anti-Terrorism and Effective Death Penalty Act prevents appellate consideration of
a habeas petition unless the district or circuit courts certify specific issues for review. See 28
U.S.C. § 2253(c); FED. R. APP. PRO. Rule 22(b). Florence has not yet requested that this Court
grant him a Certificate of Appealability (“COA”),although this Court can consider the issue sua
sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). A court may only issue a
COA when “the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Definitive and binding precedent forecloses relief on Florence’s claims.
Under the
appropriate standard, Florence has not shown that this Court should authorize appellate
consideration of any claim.
5
CONCLUSION
Florence has not raised any issue meriting federal habeas corpus relief. The Court,
therefore, GRANTS Respondent’s motion for summary judgment (Docket Entry No. 21) and
DENIES Florence’s federal petition for a writ of habeas corpus (Docket Entry No. 3). Given the
lack of underlying merit for his claims, the Court will summarily DENY Florence’s pending
motions that support his habeas petition. (Docket Entry Nos. 20, 24, 25, 26, 27, 28, 29, 33.) The
Court GRANTS Respondent’s pending motion to substitute counsel. (Docket Entry No. 30.)
The Court will not issue a Certificate of Appealability in this case.
SIGNED at Houston, Texas, this 24th day of September, 2013.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?