Nubine v. Thaler, No. 4:2012cv01283 - Document 18 (S.D. Tex. 2012)
Court Description: MEMORANDUM OPINION AND ORDER denying 14 MOTION for Summary Judgment, denying 16 MOTION for Hearing re: 13 Response, denying 14 MOTION for Summary Judgment, granting 10 MOTION to Dismiss As Moot with Brief in Support. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CLYDE NUBINE, TDCJ-CID NO. 398312, Petitioner, RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § § CIVIL ACTION NO. H-12-1283 MEMORANDUM OPINION AND ORDER Clyde Nubine filed a Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No. 1)' challenging his disciplinary proceeding. Pending before the court is Respondentfs Motion to Dismiss as Moot with Brief in Support ("Respondent's Motion") (Docket Entry No. 10) to which Nubine filed a Response ("Nubinefs Response") (Docket Entry No. 13). Also pending before the court are Nubinef s Motion for Summary Judgment (Docket Entry No. 14) and Motion for Hearing (Docket Entry No. 16). For the reasons stated below, the court will grant Respondent's Motion to 'petition for a Writ of Habeas Corpus By a Person in State Custody ("Nubine's Petition"), Docket Entry No. 1. * ~ u b i n ealso filed a Supplemental Pleading to support his Petition, along with two Letters of Inquiry regarding his Petition; Motion for Leave of Court to File Supplemental Pleading to Nubinel s Petition, Docket Entry No. 8; Letter of Inquiry, Docket Entry No. 9; Second Letter of Inquiry, Docket Entry No. 12. Dismiss and will deny Nubiners Petition, Nubiners Motion for Summary Judgment, and Nubiners Motion for Hearing. I. A. Procedural History and Claims Procedural History Nubine was sentenced on April 8, 1985, to seventy-five years in prison for murder with a deadly weapon.3 challenge his state court judgment, but Nubine does not instead challenges disciplinary case number 20120139116, in which he was found guilty of the offense of threatening to inflict harm on a prison officer on January 23, 2012 . 4 Nubine' s punishment for this disciplinary violation included a loss of 45 days of commissary and recreation privileges, a demotion from S3 classification to L1 classification, and a loss of ten days of good-time red it.^ Nubine filed a Texas Department of Criminal Justice (TDCJ) Step 1 Grievance challenging the outcome of the disciplinary 3~ubiners Petition, Docket Entry No. 1, p. 2; Commitment Inquiry, Exhibit A to Respondent's Motion, Docket Entry No. 10-1, pp. 2-3. Page citations to state court records, including the disciplinary hearing records and disciplinary grievance records, are to the pagination imprinted by the federal court's electronic filing system at the top right of the document. Page citations to the federal briefs are to the native page numbers in the documents. 4 ~ u b i n e rPetition, Docket Entry No. 1, pp. 2 & 5 (challenging s disciplinary case number 20120139116); TDCJ Disciplinary Report and Hearing Record, Docket Entry No. 11-1, p. 3 (hearing was held on January 23, 2012). 5~ubine's Petition, Docket Entry No. 1, p. 5; TDCJ Disciplinary Report and Hearing Record, Docket Entry No. 11-1, p. 3. proceeding, and the reviewing warden upheld the guilty verdict on February 7, 2012.6 Nubine then filed a TDCJ Step 2 Grievance appeal, and in response the TDCJ overturned the guilty verdict on April 9, 2012, and notified Nubine that his records would be corrected. B. petitioner's Claims and Respondent's Response Nubine alleges three due process violations as bases for habeas relief.* In his first claim Nubine disciplinary policies that allow a prisoner's challenges TDCJ release date and sentence duration to be changed as punishment for a disciplinary v i ~ l a t i o n . ~Specifically, Nubine claims his due process rights were violated when he received disciplinary punishment that changes the duration of his sentence, and he requests an injunction against the TDCJ from imposing disciplinary punishments that alter prisoner release dates.l o In his second claim Nubine alleges that his Discipline Hearings Officer deprived him of ten good-time days without due 6~~~~ Step 1 Offender Grievance Form, Docket Entry No. 11-2, pp. 5-6. 7~~~~ Step 2 Offender Grievance Form, Docket Entry No. 11-2, pp. 3-4. '~ubine's Petition, Attachments 1-2. 9~ Docket at 6 and Attachment 1. Entry No. 1, pp. 6-7 and process of law because she refused to hear his version of the facts before imposing disciplinary punishment.'' Nubine requests that the Disciplinary Hearings Officer and all persons who work with her be restrained or enjoined from depriving Nubine of his liberty interest again in the future.'' In his third claim Nubine alleges that TDCJ grievance procedures, particularly the TDCJfs ability to delay review of his Step 2 Grievance appeal, violate his due process rights.13 Nubine requests an injunction against the TDCJ from using grievance procedures that hinder the review of Step 2 Grievance appeals.14 The Respondent alleges that Nubine' s Petition should be dismissed with prejudice because his claims are moot.15 11. Analvsis Nubiners claims in his habeas Petition are moot. Article 111, § Under 2 of the Constitution, federal courts have no authority to decide moot questions. See Louisiana Environmental Action Network v. United States EPA, 382 F.3d 575, 580-81 (5th Cir. 2004). A case becomes moot when either "the issues presented are llld. at 6 and Attachments 1-2. - 131d. at 7 and Attachment 2. 141d. 15~espondentrs Motion, Docket Entry No. 10, pp. 3-5. no longer 'live, ' " or a litigant "lack[s] a legally cognizable interest in the outcome." Resident Council of Allen Parkway Villase v. United States Dept. of Housins & Urban Development, 980 F.2d 1043, 1048 (5th Cir. 1993) (internal citations and quotations omitted). In response to Nubine's Step 2 Grievance appeal, the TDCJ overturned Nubine's guilty verdict and removed this offense from Nubine's disciplinary record.16 Nubine's first claim, challenging the punishments imposed for his disciplinary offense, is no longer a live issue because the TDCJ cleared Nubine's offense and overturned. the punishments Nubine's after the guilty record of the verdict was second claim, challenging the disciplinary proceeding in which Nubine was convicted of the offense and given punishment, is no longer a live issue because the offense has been overturned and his record has been cleared. Nubiners third claim, challenging the TDCJ grievance process through which Nubine appealed his guilty verdict, is no longer a live issue because Nubine's verdict was successfully appealed and overturned. To demonstrate that his claims still present live issues Nubine alleges that part of his punishment for the disciplinary 1 6 ~ Step~ 2 JOffender Grievance Form, Docket Entry No. 11-2, ~ pp. 3-4; Disciplinary Records, Exhibit B to Respondent's Motion, Docket Entry No. 10-2, p. 2 (showing that on May 3, 2012, Nubine's Disciplinary Records no longer included Disciplinary Case Number 20120139116, the disciplinary case that is the subject of Nubine's Petition). offense remains in place because his 53 status was never returned and his L1 status remains in effect.17 However, Respondent has presented evidence that Nubine's offense and resulting punishments, including classification demotion, have been completely removed from his record.'' Nubine1s disciplinary record indicates that his current L1 status is the result of a more recent disciplinary offense that is not at issue in this habeas petition.lg Nubine provides no evidence to demonstrate that he continues to suffer from the punishments imposed for the overturned disciplinary offense at issue in this action. The court concludes that all of Nubiners claims are no longer live issues, and are therefore moot . 2 0 17 Second Letter of Inquiry, Docket Entry No. 12, p. 1. I8~isciplinary Records, Exhibit B to Respondentrs Motion, Docket Entry No. 10-2, p. 2 (showing that on May 3, 2012, Nubine' s Disciplinary Records no longer included Disciplinary Case Number 20120139116, the disciplinary case that is the subject of Nubine's Petition). 191d. (indicating that Nubiners current classification status is "Ll," and his classification was demoted from "S3-L1" on January 23, 2012, for Disciplinary Case Number 20120143429) . Nubine argues that in Disciplinary Case Number 20120143429 his classification was demoted from "L1 to L2" status and not from "S3 to L1" status, but the evidence he provides is an unofficial (and largely illegible) document; Nubiners Response, Docket Entry No. 13, pp. 11-12; Appendix to Nubine's Response, Docket Entry No. 15, Appendix 3. *O~ecause the court further concludes that Nubine's claims do not allege actionable violations of due process, Nubiners argument that his claims are "capable of repetition yet evading review" on the merits does not defeat the mootness of his claims; Nubine's Response, Docket Entry No. 13, p. 13. Moreover, even assuming that Nubine's claims were not moot, the claims would still not be actionable. Courts have recognized rison disciplinary proceedings are not part of a criminal that " ' [p] prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.'" Broussard v. Johnson, 253 F.3d 874, 876 (5th Cir. 2001) (suotins Wolff v. McDonnell, 94 S.Ct. 2963, 2975 (1974)). An inmate's due process rights are implicated only when the disciplinary measures taken against him inflict deprivations that are atypical and significant in relation to the ordinary incidents of prison life. Sandin v. Conner, 115 S.Ct. 2293, 2300 (1995). Nubine's first two claims, challenging his disciplinary proceeding and resulting punishments, are not actionable. The TDCJ imposed the following punishments for Nubine's offense of threatening to inflict harm on an officer: commissary restriction, recreation restriction, demotion from S3 classification to L1 classification, and loss of ten good-time daysmZ1 The commissary and recreation restrictions imposed on Nubine are merely changes in the conditions of his confinement, which do not implicate due process concerns. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Such restrictions do not constitute "the type of atypical, significant deprivation" that would be actionable. I . See also d 21~ubine's Petition, Docket Entry No. 1, p. 5; TDCJ Disciplinary Report and Hearing Record, Docket Entry No. 11-1, p. 3. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000) ; Pichardo v. Kinker, 73 F.3d 612, 612-13 (5th Cir. 1996). Nubine's demotion in classification, which under certain circumstances might reduce his ability to earn future good-time credits and adversely affect his chances for parole, is not actionable because the demotion does not have a definite and clear impact on the length of his prison confinement. at 957. Malchi, 211 F.3d A prisoner does not have a constitutionally cognizable right to a particular time-earning status. Venesas v. Henman, 126 F.3d 760, 765 (5th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); Wilson v. Budnev, 976 F.2d 957, 958 (5th Cir. 1992) . Nor do Texas prisoners have any liberty interest in parole. Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). v. Perrv, 259 Fed. App'x. See also Gordon 651, 653 (5th Cir. 2007) (unpublished) (Texas prisoners have no property interests in obtaining parole). Moreover, Nubine's loss of ten days of good-time credit and demotion in classification is not actionable because Nubine was convicted of murder with a deadly weapon, which bars him from using good-time credits to obtain an early release from prison. GovrT CODE ANN. 5 508.149 (a) (West 2012) . See TEX. Therefore, Nubine could not assert an actionable claim as a result of the disciplinary proceeding regardless of whether he forfeited ten good-time days, or whether he would be deprived of any future good-time days as a result of his demotion in classification. F.3d 29, 31-32 (5th Cir. 1995) (" Orellana v. Kvle, 65 [I]t is difficult to see that any other deprivations in the prison context, short of those that clearly impinge on the duration of confinement, will henceforth qualify for constitutional 'libertyf status."). The court therefore concludes that Nubiners first two claims, challenging his disciplinary proceeding and punishment, are not actionable. Nubiners third claim, challenging the TDCJrs review of his Step 2 Grievance appeal, is also not actionable. Nubine challenges the TDCJrs ability to extend the TDCJ procedural time limit for reviewing a Step 2 Grievance appeal. Because prisoners have no constitutional interest in a prison official's failure to follow procedures, Nubine has no constitutional interest in the TDCJ's failure to review Nubiners Step 2 Grievance appeal without granting a delay. Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) ("A prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.") (internal quotation marks and citation omitted). The court therefore concludes that Nubine's third claim, challenging the TDCJrs review of his Step 2 Grievance appeal, is not actionable. To the extent that Nubine requests injunctions against the TDCJ applying its disciplinary policies and grievance procedures in the future, the court has no basis for granting such injunctive relief because Nubiners due process rights have not been violated. Should Nubine be subject to future disciplinary proceedings, he can again pursue the administrative review process, and if he is not satisfied, he can then file another habeas petition. For all the reasons stated in this Memorandum Opinion and Order, Nubiners Motion for Summary Judgment will be denied. The court further concludes that it can make an informed decision without a hearing, and as such, Nubine's Motion for Hearing will also be denied. Barrientes v. Johnson, 221 F. 3d 741, 770 (5th Cir. 2000) (stating the rule that a district court has discretion to deny a habeas petitioner's request for an evidentiary hearing when it has "sufficient facts before it to make an informed decision on the merits of [the habeas petitioner's] claim.") (internal quotation marks and citation omitted). 111. Although Appealability Nubine C e r t i f i c a t e of Appealabilitv has not yet requested ("COA") , the court may Certificate deny a COA Alexander v. Johnson, 211 F.3d 895, 898 curiam). a of sua sponte. (5th Cir. 2000) (per To obtain a COA for claims denied on the merits Nubine must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c) (2); Tennardv. Dretke, 124 S. Ct. 2562, 2569 (2004). To make such a showing Nubine must demonstrate that it is debatable among reasonable jurists whether a court could resolve the issues in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard, 124 S. Ct. at 2569. For the reasons stated in this Memorandum Opinion and Order, Nubine has not made a substantial showing of a denial of a constitutional right. Accordingly, a Certificate of Appealability will not issue in this case. IV. Conclusion and O r d e r For the reasons explained above, the court finds that Nubine's Petition is denied as moot and is also denied on the merits. The court ORDERS the following: 1. Respondent's Motion to Dismiss with Brief Support (Docket Entry No. 10) is GRANTED. in 2. Nubine's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DENIED. 3. Nubine's Motion for Summary Judgment (Docket Entry No. 14) is DENIED. 4. Nubine's Motion for Hearing (Docket Entry No. 16) is DENIED. 5. A Certificate of Appealability is DENIED. SIGNED at Houston, Texas, on this the 7th day of August, 2012. UNITED STATES DISTRICT JUDGE
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