Herrod v. Murphy et al

Filing 24

REPORT AND RECOMMENDATION of the United States Magistrate Judge re 17 Motion for Summary Judgment filed by Management and Training Corporation, Debbie Self, Betty Delgado, Janelle Murphy and 20 Motion for Summary Judgment filed by Fredrick Herrod. Motions No Longer Referred. Signed by Judge Susan Hightower. (lt)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
FREDRICK HERROD,
Plaintiff

§
§
§
§
§
§
§
§

v.
JANELLE MURPHY, BETTY
DELGADO, DEBBIE SELF, AND
MANAGEMENT AND TRAINING
CORPORATION,
Defendants

Case No. 1:18-CV-503-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before this Court are Defendants’ Motion for Summary Judgment, filed February 28, 2020
(Dkt. No. 17); Plaintiff’s Motion for Judgment in Favor of the Plaintiff, filed March 16, 2020
(Dkt. No. 20); and Defendants’ Response to Plaintiff’s Motion for Judgment, filed March 27, 2020
(Dkt. No. 23). On March 18, 2020, the District Court referred the motions to the undersigned
Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), Federal Rule
of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District
Court for the Western District of Texas.
I.

Background

On July 29, 2000, Plaintiff Fredrick Herrod was convicted of robbery and possession of
cocaine in Dallas County Criminal District Court, and was sentenced to 45 years in prison. Dkt.
No. 17-2. On June 28, 2017, after serving seventeen years of his sentence, Plaintiff was transferred
to an In-Prison Therapeutic Community Program (“IPTC Program”) at TR Havins Unit in
Brownswood, Texas, which is operated by Defendant Management Training Corporation
(“MTC”). Plaintiff’s projected discharge date from the IPTC Program was December 28, 2017.

On October 30, 2017, Plaintiff failed to obey an order from a Texas Department of Criminal
Justice (“TDCJ”) Officer “to sit up and provide identification in his bunk to an inspecting officer”1
and was written up for a Level 2 offense, Code 24, for “refusing or failing to obey orders.” See
10/30/17 Offense Report, Exh. A-1, Dkt. No. 17-1. The next day, Plaintiff was involved in another
verbal altercation with a TDCJ officer and received another Level 2 violation, Code 23, for
“creating a disturbance.” See 10/31/17 Offense Report, Exh. A-2, Dkt. No. 17-1.
On November 2, 2017, MTC held a “treatment team meeting” (“Treatment Meeting”) to
discuss Plaintiff’s privileges and whether he should be removed from the IPTC Program based on
his multiple minor infractions. Exh. A, Dkt. No. 17-1. At the conclusion of the Treatment Meeting,
MTC recommended that Plaintiff receive a 30-day extension of the IPTC Program rather than
complete removal. Id. That same day, TDCJ held a disciplinary hearing on the above incidents.
Exh. A-1, Dkt. No. 17-1 at 3; Exh. A-2, Dkt. No. 17 at 3. At the conclusion of the hearing, Plaintiff
was found guilty of both offenses. He received a 15-day loss of recreation and commissary for the
first offense, and a 30-day loss of recreation and commissary and 15 hours of extra work for the
second offense. Id. Plaintiff also was placed in treatment separation for the violations.
On November 9, 2017, Plaintiff filed a grievance with MTC, alleging that MTC had violated
TDCJ’s Disciplinary Rules and Procedures for Offenders because Plaintiff’s parole officer was
not present at the Treatment Meeting. Dkt. No. 3 at 39-40. On November 16, 2017, MTC denied
the grievance and notified Plaintiff that the presence of a parole officer at treatment meetings is
“optional,” and thus no rules or procedures were violated. Id. at 42. On November 17, 2017,
Plaintiff filed another grievance with MTC, reasserting his complaint that his parole officer was
not present at the Treatment Meeting. Id. at 46.

1

Dkt. No. 17 at 2.

2

On November 22, 2017, Plaintiff’s 30-day treatment plan extension ended early, and he
continued his treatment in the IPTC Program. On January 25, 2018, Plaintiff completed the IPTC
Program and was released from the TR Havins Unit. Plaintiff remains on probation related to his
original sentence.
On December 15, 2017, Plaintiff filed this lawsuit in state court against MTC; Janelle Murphy,
Director of the IPTC Program; Betty Delgado, Assistant Director of the IPTC Program; and Debbie
Self, an MTC counselor (“Defendants”). Herrod v. Murphy, D-1-GN-17-006947 (261st Dist. Ct.,
Travis County, Tex. Dec. 15, 2017), Dkt. No. 3 at 29-37. Plaintiff claims that the failure to allow
his parole officer to be present at the Treatment Meeting violated his due process rights under the
Fourteenth Amendment to the United States Constitution, his due process rights under the Texas
Constitution, Texas Government Code § 494.002, and TDCJ Disciplinary Rules and Procedures.
On June 15, 2018, Defendants removed the case to federal court on the basis of federal question
jurisdiction, pursuant to 28 U.S.C. § 1441(a). In their Motion for Summary Judgment, Defendants
argue that the applicable rules and regulations do not require the presence of a parole officer at a
treatment meeting, and that all of Plaintiff’s claims fail as a matter of law.
II.

Legal Standards

Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials, and any affidavits on file show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable
jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to
view all inferences drawn from the factual record in the light most favorable to the nonmoving
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party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d
at 508. A court “may not make credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586.
Mere conclusory allegations are not competent summary judgment evidence, and thus are
insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and
unsupported speculation also are not competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific evidence in the record and to articulate
the precise manner in which that evidence supports its claim. See Adams v. Travelers Indem. Co.
of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to its case and on which it will bear the
burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III.

Analysis

A. Applicable TDCJ Rules and Regulations
Plaintiff alleges that Defendants violated TDCJ Disciplinary Rules and Procedures PD/pop3.8.1 and GR-106 by failing to have a parole office present at the Treatment Meeting. The
summary judgment evidence, however, shows that these regulations are inapplicable to team
treatment meetings such as the one at issue. As Janelle Murphy explained in her uncontroverted
affidavit, Pop-3.8.1 and GR-106 are meetings held by TDCJ, not MTC, and those regulations do
“not apply to meetings conducted to consider termination or extension of an offender in the IPTC
program related to multiple minor infractions.” Dkt. No. 17-1 at ¶¶ 15-16.
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The summary judgment evidence shows that the Treatment Meeting was governed by TDCJ
Substance Abuse Treatment Operating Manual (“SATOM”) No. 4.06,2 which does not require the
presence of a parole officer. Id. at ¶¶ 9, 15. SATOM No. 4.06 specifically states that the “Treatment
Team” includes only “the Warden or designee, the Program Director or designee, the Transitional
Coordinator, the offender (unless the offender is not on the Unit or his or her presence would pose
a security risk), and a representative of the unit medical staff.” Dkt. No. 17.1 at 18. A parole officer
is not considered part of the Treatment Team. Id. Accordingly, Plaintiff has failed to show that the
Treatment Meeting violated SATOM No. 4.06.
In Plaintiff’s Motion for Judgment in Favor of the Plaintiff, Plaintiff argues that Defendants’
“perjured testimony” proves that the Treatment Meeting was not a team treatment meeting subject
to SATOM No. 4.06. Dkt. No. 20 at 2. Plaintiff is referring to a statement in the original affidavit
of Janelle Murphy, which states that the Treatment Meeting occurred after the TDCJ disciplinary
hearing on November 2, 2017. Murphy Affidavit, Dkt. No. 17-1 at ¶ 9 (“Later that same day, a
treatment team meeting was held to discuss Plaintiff’s potential removal or extension of the IPTC
program due to multiple infractions received.”). Defendants maintain that this was simply a
typographical error, and submitted an amended affidavit correctly stating that the Team Meeting
occurred before the TDCJ disciplinary hearing. See Dkt. No. 22.
Regardless, Plaintiff fails to explain how the timing of the Treatment Meeting demonstrates
that the meeting was not subject to SATOM No. 4.06. Plaintiff simply asserts that the “perjured
testimony” of Janelle Murphy “proves that the Treatment Team Meeting that the Defendants claim
that they constructed under . . . SATOM 4.06[ ] was not in fact a Treatment Team Meeting under

2

Dkt. No. 17.1 at 18-22.
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that Policy.” Dkt. No. 20 at 2. Conclusory allegations and unsubstantiated assertions are not
competent summary judgment evidence. See Turner, 476 F.3d at 343. Plaintiff has failed to come
forward with any competent summary judgment evidence to show that the Treatment Meeting was
not subject to SATOM No. 4.06.
Based on the foregoing, Plaintiff has failed to show that the Treatment Meeting violated
SATOM No. 4.06, or any other applicable rule or regulation.
B. Texas Government Code § 494.002
Plaintiff alleges that Betty Delgado violated Texas Government Code § 494.002(a) by holding
the Treatment Meeting without the presence of a parole officer. Plaintiff’s reliance on § 494.002(a)
is misplaced because that statute delegates the Director of the TDCJ to adopt policies for inmates.3
Delgado is not the Director of TDCJ, but rather the Assistant Director of the IPTC Program at
Havins Unit. Plaintiff fails to explain how Delgado could have violated § 494.002(a).
C. Due Process
In addition to alleging that Defendants violated their own rules and regulations, Plaintiff argues
that the failure to have a parole officer present at the Treatment Meeting violated his due process
rights under the Fourteenth Amendment to the United States Constitution and the Texas
Constitution.4

Section 494.002(a) specifically provides: “The director of the institutional division may adopt policies
governing the humane treatment, training, education, rehabilitation, and discipline of inmates and may
arrange for the separation and classification of inmates according to the inmates’ sex, age, health,
corrigibility, and type of offense for which the inmate was sentenced to the institutional division.” TEX.
GOV’T CODE ANN. (West 1995).
3

Because there is no meaningful distinction between the “due course of law” guarantee under the Texas
Constitution and the Due Process Clause of the United States Constitution, courts apply the same federal
constitutional law to both. See Mosley v. Texas Health & Human Servs. Comm’n, 593 S.W.3d 250, 264
(Tex. 2019); Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995).
4

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Even if Plaintiff had shown that Defendants violated TDCJ rules and regulations by failing to
have Plaintiff’s parole officer present at the Treatment Meeting, he has failed to show a violation
of his constitutional due process rights. “[E]ven if an action by a government entity violates its
own rules or those of the state, there is no constitutional deprivation unless the conduct also
trespasses on federal constitutional safeguards.” Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir. 1988).
As explained by the Fifth Circuit Court of Appeals: “The protections of the Due Process Clause
are only invoked when State procedures which may produce erroneous or unreliable results imperil
a protected liberty or property interest.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997)
(citation omitted). Because Texas prisoners have no constitutionally protected liberty interest in
parole, they cannot mount a challenge against any state parole review procedure on procedural (or
substantive) Due Process grounds. Id. Because Plaintiff has no liberty interest in obtaining parole
in Texas, “he cannot complain of the constitutionality of procedural devices attendant to parole
decisions.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); see also Padilla v. Davis, 2020 WL
1854526, at *3 (W.D. Tex. Apr. 13, 2020) (“Because Plaintiff has no liberty interest in obtaining
parole in Texas, he has no claim for violation of due process in the procedures attendant to his
parole decisions.”). Accordingly, Defendants are entitled to summary judgment.
IV.

Recommendation

Based on the foregoing, the undersigned RECOMMENDS that the District Court GRANT
Defendants’ Motion for Summary Judgment (Dkt. No. 17) and DISMISS Fredrick Herrod’s
lawsuit in its entirety. The Court FURTHER RECOMMENDS that Plaintiff’s Motion for
Judgment in Favor of the Plaintiff (Dkt. No. 20) is DENIED.
IT IS FURTHER ORDERED that that the Clerk remove this case from the Magistrate
Court’s docket and RETURN it to the docket of the Honorable Lee Yeakel.

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V.

Warnings

The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written
objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except upon grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on April 14, 2020.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE

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