Case: 12-40722 Document: 00512217534 Page: 1 Date Filed: 04/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 23, 2013
No. 12-40722
Summary Calendar Lyle W. Cayce
Clerk
ERIC WATKINS,
Plaintiff-Appellant
v.
WESTON LNU,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CV-742
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Eric Watkins, former federal prisoner # 55630-004, appeals the district
court’s dismissal of his civil rights complaint as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Watkins alleged that Weston L., a disciplinary hearing officer
(DHO) at the Federal Correctional Complex in Beaumont, Texas, discriminated
against him and violated his due process rights by (1) erroneously convicting him
of refusing to obey an order in violation of Bureau of Prisons (BOP) Prohibited
Act Code 307; (2) sanctioning him to a loss of 13 days of good time credit, 14 days
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-40722
of disciplinary segregation, and a three-month loss of commissary, visitation,
and telephone privileges; and (3) willfully refusing to issue him a copy of the
DHO’s written report.
On appeal, Watkins contends that the district court erred when it
dismissed his due process claims as legally frivolous. Relying on Hewitt v.
Helms, 459 U.S. 460 (1983), he argues that the repeated use of mandatory
language in the federal regulations governing the BOP created a constitutionally
protected liberty interest in (1) obtaining a copy of the DHO’s written report; (2)
remaining in the general population absent valid reasons for administrative or
disciplinary segregation; (3) commissary, visitation, and telephone privileges;
and (4) a determination of guilt based on some facts or the greater weight of the
evidence.
To establish a due process violation, a plaintiff must show that he was
deprived of a liberty interest protected by the Constitution or other federal law.
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). A prisoner’s constitutionally
protected liberty interests are “generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 484 (internal citations omitted). In
Wilkinson v. Austin, 545 U.S. 209, 222 (2005), the Supreme Court recognized
that Sandin abrogated Hewitt’s “methodology of parsing the language of
particular regulations.” Thus, “[a]fter Sandin, it is clear that the touchstone of
the inquiry into the existence of a protected, state-created liberty interest in
avoiding restrictive conditions of confinement is not the language of regulations
regarding those conditions but the nature of those conditions themselves ‘in
relation to the ordinary incidents of prison life.’” Id. at 223 (quoting Sandin, 515
U.S. at 484).
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The district court did not err in concluding that Watkins’s 14 days of
disciplinary segregation and three-month loss of commissary, visitation, and
telephone privileges did not implicate a liberty interest protected by the Due
Process Clause. See Sandin, 515 U.S. at 485-86 (finding no liberty interest
protecting against a 30-day period of disciplinary segregation); Malchi v. Thaler,
211 F.3d 953, 958 (5th Cir. 2000) (holding that 30-day commissary and cell
restrictions did not implicate the Due Process Clause); Berry v. Brady, 192 F.3d
504, 508 (5th Cir. 1999) (observing that prisoners have no constitutional right
to visitation privileges and that restrictions of those privileges do not implicate
any due process concerns); Martin v. Scott, 156 F.3d 578, 579-580 & n.1 (5th Cir.
1998) (holding that loss of visitation and commissary privileges, inter alia, did
not deprive the prisoner of a constitutionally cognizable liberty interest).
Further, the requirements that a prisoner’s determination of guilt be supported
by some evidence and that the prisoner be given a written statement by the
factfinders are merely procedural safeguards to which prisoners are entitled if
their constitutionally protected liberty interests are infringed. See Morgan v.
Quarterman, 570 F.3d 663, 668 (5th Cir. 2009).
Although we assume arguendo that federal prisoners have a liberty
interest in their good time credits, see Henson v. Bureau of Prisons, 213 F.3d 897,
898 (5th Cir. 2000), Watkins does not challenge the district court’s determination
that the BOP’s expungement of his disciplinary conviction and restoration of his
good time credits rendered his claim for damages legally frivolous. This issue
is therefore abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999).
Watkins also contends that the district court erred when it dismissed his
equal protection claim. He asserts that the allegations in his complaint were
sufficient to show that Weston purposefully and intentionally discriminated
against him by refusing to issue him a copy of the DHO’s written report. In the
alternative, Watkins asserts that the district court erred when it dismissed his
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No. 12-40722
equal protection claim without affording him an opportunity to amend his
complaint with the facts necessary to demonstrate purposeful and intentional
discrimination.
The district court did not err in concluding that Watkins’s conclusory and
unsubstantiated allegations were insufficient to make a showing of purposeful
or intentional discrimination. Watkins alleged that Weston willfully
discriminated against him by refusing to issue him a copy of the DHO’s written
report while providing other similarly situated prisoners with copies of their
reports and that Weston’s acts were motivated “by the desire to prevent the
exercise of a constitutional right.” His conclusional allegations were insufficient
to raise a constitutional issue. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.
1990). Further, because Watkins has not identified the additional facts he would
have presented had he been granted an opportunity to amend his complaint, he
has failed to show any error. See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir.
2009).
Accordingly, the district court’s judgment is AFFIRMED.
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