IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-20346
Summary Calendar
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W. FOSTER SELLERS,
Plaintiff-Appellant,
VERSUS
R. D. BOYD, et al.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA H 94 4275)
_________________________
September 8, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
W. Foster Sellers appeals the dismissal, as frivolous under
28 U.S.C. § 1915(d), of his prisoner's pro se civil rights action
filed pursuant to 42 U.S.C. § 1983. Finding no error, we affirm.
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
I.
Sellers sued four prison officers at the Wynne Unit concern-
ing three disciplinary proceedings. The first disciplinary pro-
ceeding (Case #1) concerned officer Bennett's charging Sellers,
on October 17, 1992, with possession of contraband (a cardboard
box taped together as a legal file folder) and abnormal behavior
that disrupted Bennett's duty (turning out other inmates for the
law library). Officer Boyd, the disciplinary hearing officer
("DHO"), reduced the charge from major to minor, dismissed the
abnormal-behavior charge, refused to allow Sellers to present
witnesses, refused him the opportunity to present his written
statement, relied upon Bennett's charge to find Sellers guilty,
and meted out punishment of eight hours' extra-work duty.
The second disciplinary case (Case #2) covered the charge
that Sellers, on March 10, 1994, possessed gambling paraphernalia
(a point-spread sheet) and the name and prison number of a fellow
inmate with whom Sellers planned to bet. Lt. Robinson, the DHO,
tried the minor case. Sellers was not provided a substitute
counsel and was not allowed to call witnesses or examine the
charge report. He did submit his written statement explaining
his version of the facts. Robinson found Sellers guilty and or-
dered twenty hours of extra-work duty as punishment.
As for the third disciplinary case (Case #3),1 Lt. Losack
charged that Sellers, on November 1, 1994, possessed gambling
1
When Sellers filed his complaint in federal court, he had not exhausted
his administrative remedies as to Case #3.
2
paraphernalia (seven envelopes containing 260 parlay tickets).
Sellers was charged with gambling, pursuant to Code 19 of the
TDCJ Disciplinary Offenses, although he alleged that he was found
guilty of possession of gambling paraphernalia, Code 16. See
TDCJ-ID Disciplinary Rules and Procedures, XIV, offense codes
16(f)(2), 19 (Rev. May 1991) (Code 16(f)(2) prohibiting the pos-
session of items used for gambling and Code 19 prohibiting "bet-
ting on the outcome of any event," with notation that "possession
of gambling paraphernalia may be sufficient evidence" of viola-
tion).
Counsel substitute Swinburn served the charge on Sellers and
asked him whether he knew of any witnesses. Sellers told him
that he would have to think about it. Sellers never saw Swinburn
again. Sellers assumed that Swinburn was his counsel substitute,
but another person, whose name Sellers did not know, represented
him at the hearing.
Sellers's defense at the hearing was that he had agreed to
deliver the parlay tickets to the prison gym for another inmate
in return for a bag of coffee, which he had with him when Losack
caught him with the parlay tickets. The evidence presented
against Sellers was the computerized charge and the tickets.
Based upon the officer's offense report and the
tickets, the DHO found Sellers guilty of possessing gambling
paraphernalia. Sellers's punishment was a classification
reduction, from SAT 3 to Line 1. This in turn caused the unit's
classification committee to place Sellers in medium custody))he
3
had been in minimum custody))and to transfer him to another
housing wing.
Related to Case #3, Sellers alleged that the day after he
was caught with the parlay tickets, but before he received notice
of the disciplinary hearing, Losack arranged for a job transfer
for Sellers, from the boot line to the tag plant. Sellers
contended that the tag plant's policies forbade the use of
medium-custody inmates and required its workers to wear steel-toe
shoes, which he asserted his medical condition prevented him from
wearing. Sellers viewed this job transfer as punitive without
due process.
From the above alleged facts, Sellers contended he was
denied due process in the following manner: (1) He was charged
with one offense but found guilty of another of which he had no
notice; (2) TDCJ Rule IX, lesser-included offenses, created a
liberty interest from being convicted of possession of gambling
paraphernalia when the charged offense was gambling; (3) in Cases
#1 and #2, the DHO refused to allow him to call witnesses or to
have a counsel substitute; (4) in all cases, the DHO failed to
give adequate findings and to identify upon what evidence he
relied; (5) in all cases, the DHO failed to inform him that the
DHO was considering, as evidence, the charging officer's
statement and the investigation report, and the DHO failed to
disclose these items to Sellers; and (6) in Case #3, Sellers
received ineffective assistance of counsel substitute from his
counsel substitute's conflict of interest))he served as
4
investigator at the same time he was Sellers's advocate.
The district court did not utilize a questionnaire or a
Spears2 hearing for further factual development of the complaint
but, after analyzing Cases #1 and #2 together as minor
disciplinary proceedings and after covering the various issues
raised under Case #3, concluded that Sellers’s claims had no
arguable basis in law and dismissed the complaint without
prejudice as frivolous.
II.
An IFP complaint may be dismissed as frivolous if it lacks
an arguable basis in law or fact. Denton v. Hernandez, 504 U.S.
25, 31 (1992). We review the dismissal for abuse of discretion.
Id. at 33. "If the state provides a procedurally adequate
hearing, it does not deprive an inmate of constitutional rights,
because the constitution guarantees only the right to be free
from deprivation of life, liberty or property without due
process." Stewart v. Thigpen, 730 F.2d 1002, 1006 (5th Cir.
1984).
A.
The district court analyzed Sellers's claims by initially
categorizing the three cases by the amount of process due the
inmate, whether pursuant to Wolff v. McDonnell, 418 U.S. 539,
564-66 (1974), or Hewitt v. Helms, 459 U.S. 460, 476 (1983).
2
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
5
Because the punishment in Cases #1 and #2 (extra work-duty hours)
did not affect parole or the amount of good-time credits
possessed or to be acquired, the district court viewed these
cases under Helms. Sellers argues that these cases demand the
due process protections as enunciated in McDonnell.
Sellers argues that McDonnell should apply to minor TDCJ
disciplinary cases because minor infractions may lead to
cumulative punishment that would implicate McDonnell. Under
prior TDCJ rules, this was true and did result in all TDCJ
disciplinary proceedings' being analyzed under McDonnell. See
Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir. 1989). The TDCJ
regulations as revised in 1991 do not provide for such cumulative
punishment, however.
Sellers argues that TDCJ officials have "a loose practice"
of upgrading a third offense to major, thus requiring McDonnell
due process, when the third offense occurs within ninety days of
an earlier one. Even assuming this is true, Sellers's factual
allegations make this practice inapplicable, as his third
infraction occurred in November 1994 and his second one the
previous March.
Sellers incorrectly argues that McDonnell should apply
because the law looks to potential, not actual, punishment. See
Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). He contends
that the mere fact that a blemish is indelibly stamped upon an
inmate's record is sufficient justification for evoking
McDonnell. Controlling law holds otherwise. See id.; Sandin v.
6
Conner, 115 S. Ct. 2293 (1995) (noting the interests underlying
due process protections in the context of prison disciplinary
proceedings).
Sellers contends that because the parole board considers an
inmate's conduct when deciding parole matters, McDonnell should
apply to misconduct proceedings. Conduct is, in fact, one of
many factors considered by the board. See TEX. CODE CRIM. PROC. ANN.
art. 42.18, § 8(e) (Supp. 1995). Moreover, the board has
discretion to interview the inmate before the parole
determination in which, presumably, any issue concerning past
prison misconduct can be addressed. See id. § 8(f)(5). Because
Cases #1 and #2 do not involve imposition of solitary confinement
or the loss of good-time credit, however, Sellers was not
entitled to McDonnell's due process protections. See Murphy, 26
F.3d at 541.
B.
Under Helms, 459 U.S. at 476, an inmate is entitled to "some
notice of the charges against him and an opportunity to present
his views." See Murphy, 26 F.3d at 543. In Conner, the Court
recently adopted a new methodology, different from the Helms
test, for determining whether a state has created a protected
liberty interest to benefit prison inmates. Under Conner, a
reviewing court should consider the nature of the challenged
state action and whether it involved such a significant departure
from normal prison conditions that the state conceivably had
7
created a liberty interest. Conner, 115 S. Ct. at ____. Helms's
remaining vitality is in question. See Conner, id. at ____ n.5.
At the very most, Sellers is entitled constitutionally to
the procedural protections of Helms: some notice and an
opportunity to be heard. Thus, due process is not implicated
concerning the DHO's refusal to allow witnesses, to give an
adequate statement of the evidence considered in each case, to
state adequate reasons for finding Sellers guilty, or to inform
Sellers that he was considering the charging officer's report or
any investigatory report. According to the facts as alleged in
Sellers's complaint, he had notice of the charges, submitted his
written statement to the DHO in Case #2, and had a counsel
substitute for representation in Case #1.
Sellers received the process due him in Cases #1 and #2.
See Murphy, 26 F.3d at 543. Thus, the district court did not
abuse its discretion in determining that the due process claims
concerning these cases were frivolous. See Hernandez, 504 U.S.
at 33.
C.
Sellers raises several arguments concerning Case #3 and the
district court's conclusion that no due process violation
occurred. Sellers alleged that his punishment in Case #3 was a
downgrade in classification. On appeal, he expressly states that
this punishment affected his acquisition of good-time credits.
Thus, the district court correctly applied McDonnell. See
8
Murphy, 26 F.3d at 543.
Sellers was entitled to (1) written notice of the charges
against him at least twenty-four hours before the hearing; (2) a
written statement by the DHO as to the evidence upon which he
relied and the reasons for the disciplinary action taken; and
(3) the opportunity to call witnesses and present documentary
evidence in his defense, unless these procedures would create a
security risk in the particular case. McDonnell, 418 U.S. at
563-66. Sellers neither alleged nor argues that he was denied
the opportunity to call witnesses or present evidence.
Sellers avers that because he was charged with gambling
under Code 19 and found guilty of possession of gambling
paraphernalia under Code 16, the notice he received of the Code
19 violation was insufficient notice for a Code 16 conviction.
The description of Sellers's offense was that on November 1,
1994, he "possess[ed] gambling paraphernalia, namely, 7 small
envelopes containing 260 parley tickets." Sellers signed this
document on November 4, and the hearing was held on November 7.
Violations of Codes 16 and 19 are listed at the same offense
and punishment level, and Code 19, gambling, states that
possession of gambling paraphernalia may be sufficient evidence
of a Code 19 violation. See TDCJ-ID Disciplinary Rules and
Procedures, XIV, Codes 16(f)(2), 19. Moreover, TDCJ regulations
allow the DHO to find an inmate guilty of a lesser-included
offense "without further notice and hearing." TDCJ-ID
Disciplinary Rules and Procedures, IX(A). Therefore, there was
9
no due process violation concerning lack of notice.
Sellers argues that the DHO failed to give either adequate
reasons for the particular punishment or sufficient analysis of
the evidence, i.e., findings. The DHO wrote that he relied upon
the charging officer's I-210 report in finding Sellers guilty and
that the reason for the classification-reduction punishment was
"gambling paraphernalia found on inmate in the hallway." The DHO
complied with McDonnell. See Franklin v. Rollo, No. 94-40431,
slip op. at 3 (5th Cir. Jan 25, 1995) (per curiam) (unpublished).
Sellers contends that due process was violated by the
ineffective assistance of his counsel substitute, based upon an
alleged conflict of interest created by counsel substitute's role
as the inmate's advocate and a TDCJ regulation that allegedly
provides for a counsel substitute to investigate the case for
prison officials. See TDCJ-ID Disciplinary Rules and Procedures,
I(C), IV(B) (regulations explaining the need for an investigation
prior to a major disciplinary hearing and the role or function of
counsel substitute). Even if the TDCJ regulations provide that
it is the inmate's counsel substitute who is supposes to conduct
the prehearing investigation, Sellers did not allege such facts
in his complaint.
Sellers averred that Swinburn delivered the written notice
of the gambling charge to him and asked whether he had any
witnesses. Because Sellers asserted, however, that Swinburn did
not represent him at the hearing, the claim is factually
frivolous. Moreover, there is no authority of which we are aware
10
that acknowledges a right to any counsel at a prison disciplinary
proceeding. Thus, Sellers's claim is legally frivolous as well.
Sellers argues that the district court misread his
allegations concerning his claim of a denial of due process in
the alleged punitive job transfer that occurred before the Case
#3 hearing. He contends that due process requires some sort of
hearing before an inmate can be transferred from one work duty to
another when the transfer is predicated upon misconduct.
Prison officials have wide discretion in assigning inmates
to work. See Jackson v. Cain, 864 F.2d 1235, 1248 n.3 (5th Cir.
1989); Stewart, 730 F.2d at 1005. Sellers characterizes the
prehearing job transfer to the tag plant as punitive because
Losack, the charging officer in Case #3, knew or should have
known that tag plant workers are required to wear steel-toed
shoes, and Sellers could not wear these shoes because of his
diabetic condition. In Sellers's uncompleted administrative
appeal concerning Case #3, he alleged that after the Case #3
hearing, his case manager discovered that his medical records did
not reflect the requirement of soft shoes. Moreover, it appears
from Sellers's administrative-appeal allegations that prison
officials were attempting to change his tag-plant assignment.
In light of these allegations and the fact that the transfer
occurred before the hearing, there is no inference of a punitive
nature to Sellers's job transfer. See Whittington v. Lynaugh,
842 F.3d 818, 819 (5th Cir.), cert. denied, 488 U.S. 840 (1988).
Thus, no due process concern is implicated.
11
Accordingly, the district court did not err in concluding
that Sellers's claims concerning Case #3 have no arguable legal
basis. The court did not abuse its discretion in dismissing
these claims as frivolous. See Hernandez, 504 U.S. at 33.
D.
Sellers avers that the district court erred by failing to
transfer his complaint to the Ruiz court. As explained above,
the court did not abuse its discretion by dismissing the
complaint for frivolousness. Moreover, the Ruiz litigation is
over. See Ruiz v. Collins, No. 92-2373, slip op. at 6 n.3 (5th
Cir. Dec. 23, 1992) (per curiam) (unpublished).
AFFIRMED.
12