Johnson v. Thaler, C.A. NO. C-11-015
| Decision Date | 14 July 2011 |
| Docket Number | C.A. NO. C-11-015 |
| Parties | ALAN WADE JOHNSON TDCJ-CID NO. 660513 v. RICK THALER |
| Court | U.S. District Court — Southern District of Texas |
Petitioner is a state prisoner currently incarcerated at the McConnell Unit in Beeville, Texas. On January 24, 2011, he filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging prison disciplinary proceedings. (D.E. 1). Pending is Respondent's motion for summary judgment. (D.E. 19). For the reasons stated herein, the motion is granted and the petition dismissed.
The Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 2241, 2254, which provide that jurisdiction is proper where the inmate is confined, or where the conviction was obtained. Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir. 2002). Petitioner is confined in Beeville, Texas. (D.E. 1). Jurisdiction is, therefore, proper in this Court. 28 U.S.C. § 124(b)(6). After consent by the parties, (D.E. 11, 14), the case was referred to a magistrate judge to conduct all further proceedings, including entry of final judgment. (D.E 16); see also 28 U.S.C. § 636(c).
On December 20, 2007, Officer Phoebe Williams completed an offense report, relating that on the previous day she had opened a package addressed to Petitioner at the mail-room purportedly containing leather products for his use at the leather craftshop, and found fifty cansof chewing tobacco. Disciplinary Hearing Record ("DHR"), at 6. A preliminary investigation report indicated that Petitioner responded to the charge by claiming that the package "wasn't for [him]." Id.
On January 2, 2008, a hearing was held regarding the charge, at which Petitioner pled not guilty. Id. at 2-3. He submitted an affidavit, swearing that he had no knowledge of the tobacco, was not aware who sent it, and had no involvement in any smuggling schemes. Id. at 2, 8. He asserted that his "name was used solely as a patsy." Id. at 8. Petitioner further suggested that the investigation into the package had been improperly conducted, as the Texas Department of Criminal Justice ("TDCJ") should have waited to see how the package would be processed in order to catch the true culprits. Id. He argued that in light of the strict security procedures for incoming mail, a staff member would have to be involved in any smuggling scheme that made use of the prison mailing system. Id. at 8-9. Finally, Petitioner contended that the failure to follow the normal procedures to detect TDCJ officials' involvement stemmed from animus at him for pending federal litigation. Id. at 9.
At the January 2, 2008 hearing, Petitioner also read a statement, reiterating his innocence and noting that he could not have been guilty of possessing the tobacco products because the package had been intercepted before he had ever even seen it. Id. at 10. He added that there was no evidence he had ordered the tobacco, or had any knowledge it was being sent to him. Id. He asked for clarification regarding how the offense was being applied to him and regarding TDCJ policy for defining "possession" in contraband cases. Id. at 11.
Inmate James Soileau submitted a witness statement to the disciplinary hearing officer, averring that he did not believe Petitioner "would have done something like" committing thecharged offense. Id. at 12. Inmate Gary Myers submitted a witness statement indicating that Offender Staggs, a prisoner who worked as a janitor at the craftshop, admitted to him that he was having tobacco sent in under Petitioner's name without his knowledge. Id. at 13. Officer Williams submitted a statement that the package was in a Tandy Leather Box, and that it contained three different types of leather and fifty cans of tobacco. Id. at 15. She noted that her suspicions had been aroused by the fact that Petitioner had not ordered a product from Tandy in more than seven years. Id. Officers Harbin and Williams submitted separate statements regarding the behavior of Offender Staggs, both suggesting for various reasons that he was involved in the tobacco smuggling scheme. Id. at 16-17.
At the hearing, each of the written statements were read aloud on the record and Officer Williams testified regarding the charge. Petitioner drafted several questions that were then read to Officer Williams by his counsel substitute, mainly inquiring into the procedures concerning the mail-room and emphasizing that he would not have been able to retrieve the tobacco prior to extensive security checks by TDCJ personnel. After Officer Williams testified, Petitioner read a closing statement, reiterating that he was never in possession of the contraband and that he never had access to it. A TDCJ official responded that the prison's contraband prohibition encompassed a charge of intent to possess a banned object, and that such an intent was apparent from the fact that the package was addressed to him. Petitioner disagreed with that interpretation of the rule and suggested that he never received notice that he was being charged with what amounted to conspiracy, and that a conviction would therefore violate his due process rights.
Petitioner was convicted and punished with a reduction in class from S3 to L1 as well as the loss of forty-five commissary days and two-months visiting privileges, and the imposition offorty-three special cell restriction days and thirteen days of solitary confinement. Id. at 2.
On January 3, 2008, Petitioner appealed the conviction in a Step 1 grievance, complaining that there was no evidence to support the charge because he never assumed control of the tobacco, and alleging that the charge had been fabricated out of retaliation at his pending litigation. Disciplinary Grievance Record ("DGR"), at 1-2. He requested that the offense be expunged and his privileges restored, and that he not suffer any further retaliation. Id. at 2. On January 10, 2008, Warden Bell denied the appeal, noting that the evidence had been sufficient and "that the existence and nature of items was satisfactorily established by a thorough description in the offense report." Id.
On January 29, 2008, Petitioner filed a Step 2 grievance, reiterating his complaints with the conviction. DGR, at 3-4. The appeal was denied on February 14, 2008. Id. at 4. On October 24, 2008, Petitioner filed a civil rights action regarding the conviction pursuant to 42 U.S.C.
§ 1983 in the Houston Division of the Southern District of Texas. Johnson v. Livingston, C-08-3222 (S.D. Tex.). On December 29, 2008, the court dismissed the complaint after preliminary screening pursuant to 28 U.S.C. § 1915, finding that Petitioner's sanctions did not implicate any protected liberty interests, and that his claims for damages relating to the tobacco charges were barred by Heck v. Humphrey, 512 U.S. 477 (1994). Johnson v. Livingston, C-08-3222 (S.D. Tex.), at (D.E. 9). On appeal, the Fifth Circuit affirmed the district court's ruling. Johnson v. Livingston, 360 F. App'x 531, 532 (5th Cir. 2010) (per curiam) (unpublished). The Supreme Court denied certiorari on October 4, 2010, Johnson v. Livingston,_____ U.S. _____ , 131 S. Ct. 106 (2010), and then denied rehearing on November 29, 2010. Johnson v. Livingston, _____ U.S. _____ ,131 S. Ct. 689 (2010). On January 24, 2011, Petitioner filed this action. (D.E. 1).
Petitioner alleges that he was wrongfully convicted at his disciplinary hearing despite a lack of any evidence to substantiate his guilt in violation of his due process rights. (D.E. 1).
Respondent moves for summary judgment on the grounds that the petition is untimely, fails to invoke a protected liberty interest, and lacks merit. (D.E. 19).
Rule 56 of the Federal Rules of Civil Procedure applies to federal habeas corpus cases. Clark v. Johnson, 202 F.3d 760, 764-65 (5th Cir. 2000) (citations omitted). Summary judgment is appropriate when there is no disputed issue of material fact, and one party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Courts must consider the record as a whole, including all pleadings, depositions, affidavits, interrogatories and admissions on file, in the light most favorable to the non-movant. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002) (citations omitted).
The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact and informing the court of the basis for its motion by identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which support its contention. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Williams v. Adams, 836 F.2d 958, 960 (5th Cir. 1988) (citation omitted). Any controverted evidence must be viewed in the light most favorable to the non-movant, and all reasonable doubts must be resolved against the moving party. See Lujan v. Nat'l Wildlife Fed'n,497 U.S. 871, 888 (1990); Williams, 836 F.2d at 960 (citation omitted).
If the moving party makes the required showing, then the burden shifts to the non-movant to show that a genuine issue of material fact remains for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991) (citation omitted). The non-movant cannot merely rest on the allegations of the pleadings, but must establish that there are material controverted facts in order to preclude summary judgment. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24849 (1986) (citation omitted). Summary judgment is proper if the non-movant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof. Celot...
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