Dixon v. Hastings

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 18, 2006

Charles R. Fulbruge III
Clerk
No. 05-40778
Summary Calendar

ROBERT P. DIXON, JR.,

Petitioner-Appellant,

versus

WARDEN SUZANNE HASTINGS, Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Texas
(No. 5:03-CV-170)

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Robert P. Dixon, federal prisoner # 26529-034, contests the

summary judgment denying his 28 U.S.C. § 2241 habeas petition. (A

COA is not required to appeal the denial of a § 2241 petition. Ojo

v. INS, 106 F.3d 680, 681-82 (5th Cir. 1997).) Dixon maintains he

was denied due process during disciplinary proceedings and

subjected to retaliation.

Because Dixon did not object to the magistrate judge’s report

and recommendation, adopted by the district court as the basis of

*
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this opinion should not be published and is not precedent except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.
its order, our review is only for plain error. E.g., Guillory v.

PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citation

omitted). To establish reversible plain error, a defendant must

show a clear or obvious error affected his substantial rights.

E.g., United States v. Castillo, 386 F.3d 632, 636 (5th Cir.),

cert. denied, 543 U.S. 1029 (2004). Even then, we retain

discretion to correct the error; generally, we will do so only if

it “affects the fairness, integrity, or public reputation of

judicial proceedings”. Id. For the following reasons, Dixon fails

to show error, plain or otherwise.

Dixon’s contentions that the Unit Disciplinary Committee

failed to comply with its own regulations by delaying the

disciplinary proceedings and that the Discipline Hearing Officer

(DHO) was not “independent” as required under 28 C.F.R. § 541.16 do

not state per se constitutional claims. See Jackson v. Cain, 864

F.2d 1235, 1251 (5th Cir. 1989) (failure to follow procedural

regulations “does not establish a violation of due process, because

constitutional minima may nevertheless have been met” (internal

quotation and citation omitted)). Instead, because Dixon lost good

time and is eligible for mandatory release, Wolff v. McDonnell, 418

U.S. 539 (1974), governs review of his disciplinary proceedings.

See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison

v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997).

2
 Dixon first contends he did not receive adequate notice of the

ultimate charge, which, prior to his disciplinary hearing, was

changed from possession of “gambling paraphernalia” to possession

of “anything not authorized”. This contention is unavailing.

Dixon’s initial notice stated he was found in possession of four

dice and 40 more than the permitted number of stamps (60). Even if

Dixon was not advised of the change in the charge, both charges

were based on the same facts and subject to the same defense.

Therefore, the notice adequately informed Dixon of the charge and

enabled him to “marshal the facts and prepare a defense”. Wolff,

418 U.S. at 564. Further, Dixon’s failure to allege any prejudice

resulting from the allegedly defective notice defeats his due-

process claim. See Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th

Cir.), cert. denied, 522 U.S. 1003 (1997).

Dixon’s next assertion, that he was not allowed to call

witnesses, is contradicted by the record, which indicates he

elected to proceed without his absent witnesses, rather than

reschedule the hearing.

Finally, relying on facts concerning the DHO’s professional

association with FCI Texarkana and a coworker, Dixon maintains the

DHO was not impartial. Prison disciplinary hearings “necessarily

involve confrontations between inmates ... who are being

disciplined and those who would charge or furnish evidence against

them”. Wolff, 418 U.S. at 563. Dixon’s contentions, which fail to

3
undermine the DHO’s impartial status, raise no due process

concerns. Cf. Adams v. Gunnell, 729 F.2d 362, 370 (5th Cir. 1984)

(although an official involved in the conduct of which a prisoner

is accused might not be impartial, due process is not denied when

the prisoner has “a factually unrelated grievance in the past” with

a disciplinary officer). In sum, Dixon fails to establish the

absence of Wolff-required “minimum procedures”. 418 U.S. at 557.

Regarding his retaliation claim, Dixon asserts: Officer

Heintzleman had him placed in the “hole” in retaliation for Dixon’s

filing grievances against him; and the discovery of the contraband

and subsequent disciplinary action were a part of that retaliatory

conduct. “To state a claim of retaliation an inmate must ... be

prepared to establish that but for the retaliatory motive the

complained of incident—such as the filing of disciplinary reports

as in the case at bar—would not have occurred.” Woods v. Smith, 60

F.3d 1161, 1166 (5th Cir. 1995) (citations omitted), cert. denied,

516 U.S. 1084 (1996). Mere conclusional allegations of retaliation

cannot withstand a summary-judgment challenge. Id. Dixon’s

placement in administrative segregation, in itself, had no effect

on the duration of his confinement and, thus, would not entitle him

to habeas relief even if it were the result of a retaliatory act.

Moreover, Dixon’s allegations of retaliation based on the search of

his cell and subsequent disciplinary action do not raise a

plausible inference that the disciplinary action was the result of

any retaliatory motive on Officer Heintzleman’s part. Dixon has

4
not alleged facts showing that, but for a retaliatory motive, he

would not have been disciplined for possessing contraband. Id.

AFFIRMED

5