Hammond v. Collier et al

Filing 9

MEMORANDUM AND OPINION entered. The action filed by Benny J. Hammond lacks an arguable basis in law. His claims are DISMISSED with prejudice. Hammond's motion to proceed without prepayment of filing fees [Dkt. 8] is granted. Hammond's motion for appointment of counsel [Dkt. 2] is DENIED AS MOOT. Any remaining pending motions are DENIED AS MOOT. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENNY J. HAMMOND,
(TDCJ-CID #1513422)
Plaintiff,

March 31, 2017
David J. Bradley, Clerk

§
§
§
§
§

BRYAN COLLIER, et al.,

§
§
§

Defendants.

§
§

vs.

CIVIL ACTION NO. H-16-3603

MEMORANDUM AND OPINION
Benny J. Hammond, an inmate ofthe Texas Department of Criminal Justice- Correctional
Institutions Division, ("TDCJ-CID") sued in November 2016, alleging civil rights violations
resulting from a denial of due process. Hammond, representing himself and without prepayment of
the filing fee, sues Bryan Collier, Executive Director of the TDCJ-CID; David G. Gutierrez,
Chairman of the Texas Board of Pardons and Paroles; and Bobby Lumpkin, Director of the
Manufacturing and Logistics Division ofthe TDCJ-CID.
Hammond suggests that he should be compensated in money for his good time, in recognition
of the work he does every day for free in violation of the Thirteenth Amendment. Hammond states
that Texas is one of the few states which does not pay a viable wage for inmate labor. Instead, Texas
has applied a "good time/work time compensation plan" in lieu of actual tangible tender. However,
this is not meaningful compensation because it cannot be used to purchase any goods or services,
nor does it shorten a prisoner's sentence. In fact, Hammond says, good time can be removed through
various means. When a prisoner is released to parole or mandatory supervision, he is required to
sign away all of his accrued good time or work time; this is not a voluntary relinquishment, but a

mandatory requirement imposed before an inmate can be released. If the prisoner violates the terms
of his parole or mandatory supervision, the good time is generally not restored.
As a result, Hammond states that he is being subjected to a "payment system" designed to
falsely enrich TDCJ through the use of a "false flat currency" in the form of good time and work
time. Because good time and work time is "currency," TDCJ is in violation of the Constitutional
prohibition against states making anything but gold or silver a tender in payment of debts.
Although the purpose of the TDCJ system is to pay inmates in good time or work time, such
payment has no measurable value.

Hammond states that slavery was abolished by the 13th

Amendment; he acknowledges that the Thirteenth Amendment provides an exception "as
punishment for crime whereof a person has been duly convicted," but states that no one in the TDCJ
system has been "sentenced to slavery or involuntary servitude." After discussing the meaning of the
term "slavery," Hammond states that he himself was not sentenced to slavery or involuntary
servitude, but to "confinement and/or restitution," and TDCJ cannot change his pronounced sentence
for its own gain.
Hammond states that inmates are routinely stripped of good time or work time as a violation
of one or more rules, but these violations of rules are "unadjudicated and are a taking of property."
This would be more obvious if the good time had an actual monetary value. Hammond again asserts
that it is illegal for a government entity to seize the property of another without cause and due
process.
Hammond states that the "good time/work time formula" is a scheme to enforce compliance
in a "coordinated deception." He argues that he is subjected to "forced labor" in violation of federal
law. Hammond states that inmates are assigned to work upon their arrival in TDCJ. If they refuse,

2

Hammond says, they are subjected to increasing punishments including minor and major disciplinary
cases, deprivation of good time already earned, higher levels of confinement, and transfer to facilities
far away from the prisoner's family. This means that the rate being "paid" to the inmate is reduced.
Hammond states that a prisoner receiving a 10-year sentence would accumulate flat
(calendar) time, good time, and work time. After five years of flat time plus two-and-a-half years
each of good time and work time, the inmate may be released on mandatory supervision; however,
such release is now discretionary and some offenses do not qualify for release on mandatory
supervisiOn.
Furthermore, Hammond asserts that release on parole or mandatory supervision is not
"liberty" because an individual on such release is still in the custody of the State. Mandatory
supervision has published guidelines, but parole does not; instead, it is at the sole discretion of the
Texas Board of Pardons and Paroles. Because both mandatory supervision and parole are
discretionary, Hammond states that there is no value earned by good time or work time credits.
Unlike money, there is nothing that can be purchased by good time, and these credits do not shorten
the term of the sentence.
After discussing the fact that various inmate jobs require various levels of skill, including
truck driving, plumbing, and electrical work, Hammond argues that TDCJ cannot have it both ways;
the prison cannot say that good time is a valuable consideration but then say it has no value when
asked to exchange it for other valuable considerations. Inmates cannot purchase items for the
commissary or pay their medical co-pay with good time credits.
Hammond asks that the court order TDCJ to cease and desist from employing inmate labor
without express written and voluntary consent. He further requests that all inmates be paid for their
3

work.
A federal court has the authority to dismiss a complaint in which the plaintiff is representing
himself if the court determines that it lacks an arguable basis in law or fact. 28 U.S.C.
§ 1915(e)(2)(B)(i); see Denton v. Hernandez, 504 U.S. 25,31 (1992); Richardson v. Spurlock, 260
F.3d 495,498 (5th Cir. 2001) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). "A
complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such
as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v.

Scott, 157 F.3d 1003, 1005 (5th Cir. 1998)(quotingMcCormickv. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997)).
A prisoner does not have a constitutional right to a release before the expiration of a valid
sentence. Greenholtz v. Inmates of the Neb. Penal & Carr. Complex, 442 U.S. 1, 7 (1979).
Furthermore, the U.S. Constitution does not guarantee an inmate good-time credit for satisfactory
behavior while in prison. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). However, state laws may
create a constitutional expectancy of early release. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir.
2000). In Texas, it is well established that only inmates who are eligible for mandatory supervision
have a liberty interest in good-time credits and a constitutional expectancy of early release. !d. To
establish a constitutional violation, Hammond must show that he has a constitutional expectancy of
early release.
The primary issue in this case concerns whether or not Hammond has stated the denial of a
constitutionally protected liberty interest. Prisoners are not wholly stripped of all constitutional
protections when imprisoned. Wolff, 418 U.S. at 55 5. A prisoner's constitutional rights are set forth
in the Due Process Clause of the Fourteenth Amendment. However, in disciplinary hearings,

4

prisoners are only entitled to due process guarantees when the hearing may result in sanctions that
infringe on constitutionally protected interests. Sandin v. Conner, 515 U.S. 472,483-4 (1995). These
interests are generally limited to sanctions that affect the quantity of time served by a prisoner.
Madison v. Parker, 104 F.3d 765,767 (5th Cir. 1997). Due process protections do not attach to

ordinary prison disciplinary cases, but only those which serve to lengthen the inmate's sentence or
exceed its expected parameters. Sandin, 515 U.S. at 484. Prison inmates who lose previously earned
good time credits as a result of prison disciplinary convictions are entitled to procedural due process
protections. Wolff, 418 U.S. at 555.
Under Texas law, a TDCJ inmate can become eligible for release in two ways: "The first is
by parole and the second is under a mandatory supervised release program." /d. Only mandatory
supervision may create a "constitutional expectancy" of early release. Malchi, 211 F.3d at 957.
However, in the pending case, Hammond was convicted of aggravated sexual assault of a child in
2008 and is, therefore, ineligible for mandatory supervision. See TEX. Gov'T CODE
§ 508.149(a)(8)(stating an inmate may not be released to mandatory supervision if the inmate is
serving a sentence for or has been previously convicted of a first degree felony under Section 22.021,
Penal Code [Aggravated Sexual Assault]). Because Hammond is not eligible for mandatory
supervision, he has no constitutional expectancy of early release and no liberty interest in any lost
good time. Malchi, 211 F.3d at 957; Madison, 104 F.3d at 767-8;
For prisoners not eligible for mandatory supervision, good-time credits only apply toward
eligibility for parole. TEX. Gov'T CODE ANN. § 498.003. It is well established that eligibility for
parole is not a constitutionally protected interest. See Madison, 104 F.3d at 768. Because release on
parole is entirely speculative, there is no constitutional expectancy ofparole in Texas. /d.

5

A disciplinary action resulting in loss of good-time credits only affects eligibility for parole
and, therefore, does not affect a constitutionally protected interest. Furthermore, the Fifth Circuit
has ruled that if an inmate is not eligible for mandatory supervision, he "does not have a
constitutional claim for which relief can be granted." Arnoldv. Cockrell, 306 F.3d 277,278 (5th Cir.
2002). Hammond complains that inmates are punished for refusing to work, and that the punishment
can include the loss of good time credits. Hammond does not identify a disciplinary case in which
he lost good time credits. (Docket Entry No. 1, p. 11). To the extent Hammond lost good time
credit, he has not established a due process violation.
Hammond claims that he is seeking compensation for work performed in prison.
Hammond's claim of involuntary servitude is frivolous. Section 1 of the Thirteenth Amendment to
the United States Constitution reads as follows: "Neither slavery nor involuntary servitude, except
as punishment for crime, whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction."
The Thirteenth Amendment clearly did not totally abolish slavery and involuntary servitude.
An exception was made for people convicted of crimes. The Fifth Circuit has clearly held that
requiring inmates to work without compensation does not violate the Constitution nor constitute
involuntary servitude. Wendt v. Lynaugh, 841 F.2d 619,621 (5th Cir. 1988). The State maintains
discretion to determine whether and under what circumstances inmates will be paid for their labor.
Wendt v. Lynaugh, 841 F.2d 619,621 (5th Cir. 1988).
The Fifth Circuit also emphasized that "inmates sentenced to incarceration cannot state a
viable Thirteenth Amendment claim if the prison system requires them to work." Ali v. Johnson, 259
F.3d 317, 317 (5th Cir. 2001). Compelling an inmate to work without pay does not violate the

6

Constitution even if the inmate is not specifically sentenced to hard labor. See Ali v. Johnson, 259
F.3d 317,318 (5th Cir. 2001); Murray v. Miss. Dep 't ofCorr., 911 F.2d 1167, 1167 (5th Cir. 1990).
Inmates likewise do not have a basis for a claim under the Fair Labor Standards Act if they
are forced to work without compensation. Loving v. Johnson, 455 F.3d 562, 563 (5th Cir. 2006).
Moreover, "[t]he refusal to work, by a group or even a single inmate, presents a serious threat to the
orderly functioning of a prison. Any unjustified refusal to follow the established work regime is an
invitation to sanctions." Mikeska v. Collins, 900 F.2d 833, 837 (5th Cir. 1990), modified, 928 F.2d
126 (5th Cir. 1991 ). The mere allegation that some prisoners are paid for work, while others are not,
does not establish unlawful discrimination. !d.
On-line research reveals that Hammond was serving three concurrent forty-year sentences
for three 2008 convictions for aggravated sexual assault of a child. (Cause Numbers 20,289-2008,
20,290-2008, and 20,291-2008). At the time he filed this complaint, Hammond had been duly
convicted and sentenced by the state trial court. At the time he was required to work in the prison,
he had not yet served his full sentence. He states no cognizable violation of the Thirteenth
Amendment. Hammond has not shown that the defendants violated his rights by making him hold
a prison job. Hammond has failed to support his 42 U.S.C. § 1983 action by showing that he was
deprived of a right or interest secured by the Constitution and laws of the United States. See Doe v.

Rains Cnty. Ind. Sch. Dist., 66 F .3d 1402, 1406 (5th Cir. 1995).
Hammond asserts that failure to release a prisoner on his minimum expiration release date
amounts to double jeopardy. (Docket Entry No. 1-1, p. 2). The Double Jeopardy Clause provides
that no person shall be subject for the same offense twice to be put in jeopardy oflife or limb. U.S.
CONST., amend. V. The clause protects against a second punishment for the same offense after an

7

acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for
the same offense. United States v. Gonzalez, 76 F.3d 1339, 1343 (5th Cir. 1996).
Hammond has failed to show a double jeopardy violation. His contention that prisoners are
held beyond their sentence expiration dates because of the operation of good time and work time is
incorrect, and he has thus not shown that he or other prisoners have been subjected to multiple
punishments for the same offense. Hammond received three 40-year sentences for aggravated sexual
assault of a child on June 16, 2008. These sentences have not expired. His double jeopardy
allegation is without merit.
The action filed by Benny J. Hammond (TDCJ-CID #1513422) lacks an arguable basis in
law. His claims are dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i). Hammond's
motion to proceed without prepayment of filing fees, (Docket Entry No. 8), is granted. Hammond's
motion for the appointment of counsel, (Docket Entry No. 2), is denied as moot. Any remaining
pending motions are denied as moot.
The TDCJ -CID must deduct twenty percent of each deposit made to Hammond's inmate trust
account and forward payments to the court on a regular basis, provided the account exceeds $10.00,
until the filing fee obligation of $350.00 is paid in full.
The Clerk will provide a copy of this order by regular mail, facsimile transmission, or e-mail
to:
(1)

the TDCJ- Office ofthe General Counsel, Capitol Station, P.O. Box 13084, Austin,

8

Texas, 78711, Fax: [phone];
(2)

the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax:

936-437-4793; and
(3)

the District Clerk for the Southern District of Texas, Attention: Manager of the

Three-Strikes List.
SIGNED on March 31,2017, at Houston, Texas.

Lee H. Rosenthal
Chief United States District Judge

9