UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-40492
Summary Calendar
JAVIER REYNOSA,
Plaintiff-Appellant
VERSUS
E. WOOD; PHILIPPA A. LANG; M. DODSON;
ADMINISTRATIVE SEGREGATION COMMITTEE; W. BOOTH,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(C-96-CV-460)
December 18, 1997
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
As this Court finds no error in the dismissal of Appellant’s
civil rights complaint, and in lieu of a separate opinion, this
Court adopts en toto the order of dismissal in this case of the
United States District Court for the Southern District of Texas,
Corpus Christi Division, C.A. No. 96-460, United States Magistrate
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Judge B. Janice Ellington, sitting by consent, to wit:
ORDER OF DISMISSAL
The plaintiff brings suit under 42 U.S.C. § 1983 alleging
various constitutional violations. The Court held a Spears hearing
in this case on February 3, 1997. Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985). At the hearing, all witnesses were sworn, all
records used by the witnesses were authenticated and had adequate
indicia of reliability, the inmate had an opportunity to examine
the records, and the inmate had the opportunity to cross examine
witnesses. Wilson v. Barrientos, 926 F.2d 480, 483 (5th Cir. 1991).
A. Due process
Plaintiff contends that, on April 13, 1996, Defendant Woods
charged Plaintiff with “possession of a weapon intended to be used
to injure another person”. Plaintiff alleges that he only had a
rolled up newspaper, not a weapon. Plaintiff asserts that
Defendant Lang failed to present pictures to support the claim.
Finally, Plaintiff contends that the administrative segregation
committee, Captain Dodson and Assistant Warden Boothe refused him
the right to be heard and relied on an incomplete offense report.
Plaintiff asserts that the “false allegations by the
Defendants has caused the Plaintiff loss of line class, 90 days on
level 3, parole date drastically changed, and paper gown
restrictions for 72 hours”. Plaintiff also contends that he lost
30 days of good-time credit.
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Due process protections do not attach to ordinary prison
disciplinary cases. Sandin v. Conner, 515 U.S. 472, 115 S. Ct.
2293, 132 L. Ed. 2d 418 (1995)(no due process protections for
disciplinary hearings which do not lengthen the inmate’s sentence
or exceed its expected parameters). Where Plaintiff lost
privileges (other than good time credits), his due process claim is
dismissed with prejudice as frivolous.
Regarding Plaintiff’s assertion that the reduction in line
class will affect his parole date, “[t]he loss of the opportunity
to earn good-time credits, which might lead to earlier parole, is
a collateral consequence of [an inmate’s] custodial status. Yet,
such speculative, collateral consequences of prison administrative
decisions do not create constitutionally protected liberty
interests.” Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert.
denied, 116 S. Ct. 1690 (1996); See Meacham v. Fano, 427 U.S. 215,
229 n. 8, 96 S. Ct. 2532, 2540 n. 8, 49 L. Ed. 2d 451 (1976)(noting
that possible effect on parole decision does not create liberty
interest in confinement in particular prison).
As to any claim for restoration of good-time credits,
resolution of the factual and legal assertions of that claim would
automatically entitle Plaintiff to accelerated release and,
consequently, that claim must be pursued through a petition for
writ of habeas corpus. Cook v. Texas Dept. of Criminal Justice
Transitional Planning Dept., 37 F.3d 166 (5th Cir. 1994); Keenan v.
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Bennett, 613 F.2d 127 (5th Cir. 1980)(loss of “good time” credit
treated as claim under § 2254). The Court cannot consider any
claim for restoration of good time credits in this action because
Plaintiff has not exhausted his state habeas remedies. Rose v.
Lundy, 455 U.S. 509, 102 S. Ct. 1198; 28 U.S.C. § 2254(b). So that
Plaintiff is not prevented from proceeding with his claim for loss
of good-time credits pursuant to a state writ of habeas corpus, the
claim is dismissed without prejudice.
B. Conspiracy
Plaintiff asserts “that Officer Wood and Sgt. Lang conspired
to fabricate false disciplinary charges against him”.
To allege a claim of conspiracy to deprive a plaintiff of his
constitutional rights, 42 U.S.C. § 1985(3), a plaintiff must
allege, (1) a conspiracy involving two or more persons; (2) for the
purpose of depriving, directly or indirectly, a person or class of
persons of the equal protection of the laws; and (3) an act in
furtherance of the conspiracy; (4) which causes injury to a person
or property, or deprivation of any right or privilige of a citizen
of the United States. Hilliard v. Ferguson, 30 F.3d 649 (5th Cir.
1994). Moreover, where all of the defendants are members of the
same collective entity, the conspiracy does not involve two or more
people. Hilliard, 30 F.3d at 653; see also Moody v. Jefferson
Parish Sch. Bd., 803 F. Supp. 1158, 1166 (E.D. La. 1992)(School
Board, Principal, Vice-Principal, and various teachers are all
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employed by the Jefferson Parish School Board and, thus, are a
single entity), aff’d, 2 F.3d 604 (5th Cir. 1993); Hankins v.
Dallas Indep. Sch. Dist., 698 F. Supp. 1323, 1330 (N.D. Tex.
1988)(high school and its officials constitute a single entity);
Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La. 1976)(“the
university and its officials are considered as constituting a
single legal entity which cannot conspire with itself”), aff’d, 562
F.2d 1015 (5th Cir. 1977), cert. denied, 439 U.S. 839, 99 S. Ct.
127, 58 L. Ed. 2d 137 (1978).
Here Plaintiff produces no facts, other than his personal
belief, that there is a conspiracy. His claim is too vague to go
forward. Furthermore, all of the defendants are members of the
same collective entity, the Texas Department of Criminal Justice.
Plaintiff’s claim is dismissed as frivolous.
C. Intentional infliction of emotional distress
Plaintiff opines that the various unconstitutional acts of the
Defendants have caused him to suffer emotional distress. At the
Spears hearing, Plaintiff admitted that he did not see a
psychologist or lose any sleep because of the emotional distress.
A federal district court has supplemental jurisdiction over
state law claims which are so related to the claim in the action
within the Court’s original jurisdiction that they form part of the
same case or controversy. 28 U.S.C. § 1367. However, the doctrine
of supplemental jurisdiction is one of discretion. United Mine
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Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218
(1966). In exercising this discretion, the district court should
consider judicial economy, convenience, fairness and comity.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614,
619, 98 L. Ed. 2d 720 (1988). “In the unusual case in which all
federal law claims are eliminated before trial, the balance of
factors ... will point toward declining to exercise jurisdiction
over the remaining state law claims.” Id. at 350 n. 7, 108 S. Ct.
at 619 n. 7. Accordingly, as the Court declines to exercise
jurisdiction over Plaintiff’s intentional infliction of emotional
distress claim, such claim is dismissed without prejudice.
AFFIRMED.
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