IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20070
Summary Calendar
KYLE JACOB GRAHAM,
Petitioner-Appellee,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(H-99-CV-3857)
--------------------
July 30, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Respondent Johnson appeals the district court’s partial grant
of Petitioner Graham’s 28 U.S.C. § 2254 habeas corpus petition
challenging his prison disciplinary proceeding. The district court
granted Graham’s motion for summary judgment with respect to his
claim that his due process rights were violated when revocation of
good-time credits was included in his punishment, in violation of
Administrative Directive 03.21 (“AD-03.21”).
*
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that this opinion should not be published and is not precedent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.
The respondent conceded in the district court, and concedes on
appeal, that Graham has a liberty interest in his good-time
credits. When, in the context of a prison disciplinary hearing, a
prisoner’s protected liberty interest is at stake, due process
requires only that the prisoner receive (1) written notice of the
charges at least 24 hours prior to his disciplinary hearing; (2) an
opportunity to call witnesses and present evidence in his defense
when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals; and (3) a written
statement by the factfinder setting forth the evidence relied on
and the reasons for the disciplinary action. See Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974).
Wolff does not, however, require that prison officials follow
their own administrative rules, whether relating to sentencing or
otherwise. See id. at 563-72. In fact, we have expressly held
that a prison official’s mere failure to follow the prison’s own
policies, procedures, or regulations does not constitute a
violation of due process. See Myers v. Klevenhagen, 97 F.3d 91, 94
(5th Cir. 1996); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th
Cir. 1986). Accordingly, the district court erred as a matter of
law in determining that Graham was deprived of his due process
rights when prison officials violated AD-03.21, a prison
administrative rule regarding sentencing.
The district court also made a sua sponte determination that
Graham was entitled to habeas relief on the alternative ground that
he was denied his due process right to notice of the disciplinary
2
charge at least 24 hours before his hearing. Among Graham’s
disciplinary records, however, is a “Hearing Worksheet” which
states that Graham waived his 24 hours’ notice. Additionally,
Graham’s complaints in his prison grievances that he was not
admonished of the seriousness of waiving his right to 24 hours’
notice and that he did not waive the notice in writing constitute
implied admissions that he waived notice orally. As there is thus
some evidence that Graham waived his right to 24 hours’ notice, the
district court erred in determining that Graham was denied his due
process right to such notice. See Superintendent, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985) (holding that the
requirements of due process are satisfied if some evidence supports
the prison disciplinary board’s decision to revoke good-time
credits).
In light of the foregoing, we conclude that the district court
erred in granting partial summary judgment in favor of Graham. As
there is no genuine issue of material fact relating to Graham’s due
process claims, the respondent is entitled to judgment on those
claims as a matter of law. Thus the district court should have
granted in full the respondent’s motion for summary judgment. See
Fed. R. Civ. P. 56(c). Therefore the district court’s judgment
must be vacated and this case remanded for entry of summary
judgment of dismissal in favor of the respondent.
VACATED and REMANDED with instructions.
3
4