Malone v. Davis
Filing
4
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIV ISION
ENTERED
December 07, 2017
David J. Bradley, Clerk
K I A LLAN MAL ONE ,
TDCJ #601691,
Petitioner,
CIVIL ACTION NO . H-17-3676
LORIE DAVIS , Director,
Texas Department of Criminal
Justice , Correctional
Institutions Division ,
Respondent .
MEMOKAHDUM OPINION AND ORDER
Texas inmate Ki Allan Malone has filed a Petition for a Writ
of Habeas Corpus By a Person in State Custody (upetition') (
' Docket
Entry No . 1), seeking relief from a prison disciplinary conviction .
After considering the pleadings and the applicable law , the court
will dismiss this action for the reasons explained below .
Backqround
Malone
currently serving a life sentence in the Texas
Department of Crim inal Justice
Correctional Institutions Division
('TDCJ' as the result of a conviction that was entered against him
A
')
the 69th District Court of Moore County , Texas x
Malone seeks
relief in the form of a federal writ of habeas corpu s to challenge
a prison discip linary conviction that was entered against him at
lpetition , Docket Entry No .
p.
the
Huntsv ille
Unit , where
he
is
currently
confined .z
In
particular , Malone challenges a conviction entered against him O n
August
2017 , in disciplinary case number 20170376222, for
hav ing a clothesline hanging in h is cell after
violation
of
a
posted
prison
ru1e .3
As
a
7 :00 a .m . in
resu lt
of
this
disciplinary conviction , Malone lost recreational privileges for
ten day s .
4
Malone filed grievances to challenge the conv iction ,
but his appeals were unsuccessful .s
Malone argues that the disciplinary charges were
'
'false'
'
because they were issued by an officer who was not present and did
not witness the offense in violation of 'TDCJ Employee Conduct
'
Codes .'
'6
Malone contends further that he was convicted of an
offense that he did not commit and that his grievances were not
adequately investigated .? Malone contends, therefore , that he is
entitled to relief because he was convicted in violation of his
right to Due Process .8
2Id . at
3
TDCJ Discip linary Report and Hearing Record , Docket Entry
N o . 1 -1 ,
6.
4Id . at
s
step
pp . 1 -5 .
and Step 2 Grievance Forms, Docket Entry No .
Epetition , Docket Entry No .
7Id . at 6 .
8Id . at
p.
II.
Prison D isciplinary Proceedinqs
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 . See Wolff v . McDonnell, 94 S . Ct .
2963, 2974-75 (
1974). Prisoners charged with institutional rules
violations are entitled to rights under the Due Process Clause only
when the disciplinary action may result in a sanction that will
infringe upon a constitutionally protected liberty interest .
Sandin v . Conner,
cannot
demonstrate
discip linary
context
2293, 2302 (
1995)
a
Due
Process
without
A Texas prisoner
v iolation
first
See
in
satisfying
the
the
prison
following
criteria : ( he must be eligible for early release on the form of
1)
parole known as mandatory supervision; and (
2) the disciplinary
conviction at issue must have resulted in a loss of previously
earned good-time credit . See Malchi v . Thaler , 211 F .3d 953 , 957-
58 (
5th Cir. 2000).
Malone
adm its
that
he
is
not
eligible
for
mandatory
superv ision and that he did not lose any previously earned good time credit as the result of his disciplinary conviction .g
The
only sanction imposed during his disciplinary proceeding was the
loss of recreational privileges for ten days .
The Fifth Circuit
has decided that disciplinary sanctions resulting
the loss of
privileges do not pose an 'atypical' or usignificant' hardship that
'
'
'
gpetition , Docket Entry No .
p.
implicates a constitutionally protected liberty interest of the
sort protected by the Due Process Clause . See Madison v . Parker,
104 F.3d 765, 768 (
5th Cir. 1997) (
observing that limitations
imposed on commissary privileges and temporary cell restrictions
are B
merely changes in the conditions of ( inmate'sq confinement
an
and do not implicate due process concerns' . Because Malone cannot
o
establish a violation of constitutional proportion under these
circumstances , his Petition must be dism issed for failure to state
a claim upon which relief may be granted .
111 .
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner .
A
certificate of appealability will not issue unless the petitioner
makes 'a substantial showing of the denial of a constitutional
'
right,' 28 U . C . 5 2253 ( 2), which requires a petitioner to
'
S.
c)(
demonstrate that ureasonable jurists would find the district
court's assessment of the
constitutional claims debatable or
wrong.' Tennard v . Dretke, 124 S. Ct. 2562, 2565 (
'
2004) (
quoting
Slack v . McDaniel,
1595, 1604 (
2000)).
The court
concludes that jurists of reason would not debate the assessment of
the petitioner 's claims or whether the petitioner has demonstrated
the violation of a constitutional right . Therefore , a certificate
of appealability will not issue .
IV . Conclusion and Order
Based on the foregoing, the court ORDERS as follows :
The Petition for a Writ o f Habeas Corpus By a
Person in State Custody filed by Ki A llan Malone
(
Docket Entry No . 1) is DENIED , and this case will
be dismissed with prejudice.
2.
A certificate of appealability is DEN IED .
3.
Malone 's Application to Proceed In Forma Pauperis
(
Docket Entry No . 2) is GRANTED .
The Clerk shall prov ide a copy of this Memorandum Opinion and
Order to the petitioner .
SIGNED at Houston , Texas, on this 6th day of December , 2017 .
K
SIM LAKE
UNITED STATES DISTRICT JUDGE
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