Malone v. Davis
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
December 07, 2017
David J. Bradley, Clerk
K I A LLAN MAL ONE ,
CIVIL ACTION NO . H-17-3676
LORIE DAVIS , Director,
Texas Department of Criminal
Justice , Correctional
Institutions Division ,
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') (
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 .
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
the 69th District Court of Moore County , Texas x
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 .
Unit , where
particular , Malone challenges a conviction entered against him O n
2017 , in disciplinary case number 20170376222, for
hav ing a clothesline hanging in h is cell after
7 :00 a .m . in
disciplinary conviction , Malone lost recreational privileges for
ten day s .
Malone filed grievances to challenge the conv iction ,
but his appeals were unsuccessful .s
Malone argues that the disciplinary charges were
because they were issued by an officer who was not present and did
not witness the offense in violation of 'TDCJ Employee Conduct
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
TDCJ Discip linary Report and Hearing Record , Docket Entry
N o . 1 -1 ,
4Id . at
pp . 1 -5 .
and Step 2 Grievance Forms, Docket Entry No .
Epetition , Docket Entry No .
7Id . at 6 .
8Id . at
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,
2293, 2302 (
A Texas prisoner
criteria : ( he must be eligible for early release on the form of
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-
5th Cir. 2000).
superv ision and that he did not lose any previously earned good time credit as the result of his disciplinary conviction .g
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 .
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
merely changes in the conditions of ( inmate'sq confinement
and do not implicate due process concerns' . Because Malone cannot
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 .
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 .
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
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 (
Slack v . McDaniel,
1595, 1604 (
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.
A certificate of appealability is DEN IED .
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 .
UNITED STATES DISTRICT JUDGE
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