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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