Madison v. Parker

United States Court of Appeals,

Fifth Circuit.

No. 96-40240.

Nesbitt Edwin MADISON, Plaintiff-Appellant,

v.

Lt. R. PARKER, et al., Defendants-Appellees.

Jan. 31, 1997.

Appeal from the United States District Court for the Eastern
District of Texas.

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Nesbitt Edwin Madison, an inmate currently confined in the

Texas Department of Criminal Justice, Institutional Division, filed

a civil rights suit under 42 U.S.C. § 1983 alleging violations of

his constitutional rights during his confinement in the state

penitentiary. A hearing was held by Magistrate Judge Judith K.

Guthrie of the Eastern District of Texas after which she held,

inter alia, that a prisoner has no liberty interest in his good

conduct credit time and dismissed Madison's claim. Upon reviewing

the facts in the record along with the laws of Texas we vacate the

lower court's decision and remand for further proceedings in

accordance with this opinion.

BACKGROUND

Madison is incarcerated at the Beto I Unit in Tennessee

Colony, Texas. On May 18, 1995, Madison was in his prison cell

when his cellmate, Garcia, was severely injured. A security

officer on duty that evening, Officer Goodwin, was conducting a

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security check when he saw Garcia standing by the bars with blood

on his face and clothes. Goodwin called for Lieutenant R. Parker,

a correctional officer at the Beto I Unit. When Parker arrived at

the scene he was told by both inmates that Garcia had fallen out of

his bunk. Despite Garcia's and Madison's statements, Lt. Parker

concluded that the numerous facial injuries sustained by Garcia

indicated that he had been assaulted. Madison was removed from the

cell and placed in prehearing detention.

A disciplinary hearing was held on May 23, 1995. Parker

testified that, although he did not witness the alleged fight,

Madison continually tried to assault Garcia after he arrived.

Madison tried to rebut Parker's testimony by attempting to

introduce his medical records of that evening to show that he had

not been injured. He also tried to introduce a witness statement

from Officer Goodwin stating that Garcia had told him that he had

injured himself by falling from his bunkbed. However, Captain

Emerson, the officer presiding over the hearings, denied both of

these requests. Madison was ultimately found guilty and punished

to 30 days of commissary restriction, 30 days of cell restriction,

and 30 days loss of good time already accumulated.

Madison filed suit contending his civil rights were violated

under 42 U.S.C. § 1983 and requested, as relief, that the

disciplinary case be expunged from his record and that he be

awarded $8,000 from Lt. Parker and $3,000 from Capt. Emerson.

Madison and the defendants consented to have this case heard by a

magistrate judge. A hearing in accordance with Spears v. McCotter,

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766 F.2d 179 (5th Cir.1985), was held on February 20, 1996. Upon

reviewing the case, the lower court dismissed Madison's complaint

as frivolous on the grounds that the punishment Madison received

was not sufficient to trigger due process.

DISCUSSION

I. Standard of Review

We review a judgment rendered by a magistrate judge just as

we do a judgment rendered by a district judge. 28 U.S.C. §

636(c)(3). The identification of the liberty interests that are

protected by the Due Process Clause is a question of federal

constitutional law that we review de novo. See Memphis Light, Gas

& Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56

L.Ed.2d 30 (1978).

II. Due Process

Madison complains that he was denied due process at his

disciplinary hearing in that he was refused the opportunity to

present witnesses and offer documentary evidence. In evaluating

Madison's claim, we must first address the issue of whether the Due

Process Clause of the Fourteenth Amendment applies to this

situation.

Although lawful incarceration brings about the necessary

withdrawal of many privileges and rights, prisoners do not shed all

their rights at the prison gate. In fact, the Supreme Court has

recently reiterated and clarified which rights receive

constitutional protection in Sandin v. Conner, --- U.S. ----, 115

S.Ct. 2293, 132 L.Ed.2d 418 (1995). The Court continued to follow

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its prior decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct.

2963, 41 L.Ed.2d 935 (1974), in holding that states may, under

certain circumstances, create liberty interests which are protected

by the Due Process Clause. However, it held that these interests

are generally limited to state created regulations or statutes

which affect the quantity of time rather than the quality of time

served by a prisoner. In coming to this conclusion, the Court

first laid down the principle that the Due Process Clause does not

protect every change in the conditions of confinement which has a

substantial adverse effect upon a prisoner. Id. at ----, 115 S.Ct.

at 2297 (citing Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532,

2538, 49 L.Ed.2d 451 (1976)).

We agree that Madison's 30 day commissary and cell

restrictions as punishment are in fact merely changes in the

conditions of his confinement and do not implicate due process

concerns. They are penalties which do not represent the type of

atypical, significant deprivation in which a state might create a

liberty interest. However, his loss of 30 days good time credit

calls for a more careful analysis.

The Constitution does not guarantee good time credit for

satisfactory behavior while in prison. Wolff v. McDonnell, 418

U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974).

However, some states create such a right. When a state creates a

right to good time credit and recognizes that its revocation is an

authorized sanction for misconduct, a prisoner's interest therein

is embraced within the Fourteenth Amendment "liberty" concerns so

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as to entitle him to those minimum procedures appropriate under the

circumstances and required by the due process clause to insure that

this state-created right is not arbitrarily abrogated. Wolff v.

McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935

(1974). In Texas, a prisoner may be awarded good conduct time

based on his or her specific behavior in various vocations.

TEX.GOV.CODE ANN. § 498.003(a) (Vernon 1996). If an inmate commits

an offense or violates an institutional rule during the course of

his confinement, the Director of the Texas Department of Criminal

Justice—Institutional Division ("TDCJ-ID") is empowered to forfeit

all or any part of the inmate's accrued good time. TEX.GOV.CODE ANN.

§ 498.004(a) (Vernon 1996). Once an inmate acquires good time, the

only way it can be revoked is if he or she commits an offense or

violates an institutional rule. The question here is whether Texas

has created a liberty interest in disseminating good conduct

credit, thereby invoking the due process requirements under the

Fourteenth Amendment.

There are two ways in which a prisoner becomes eligible for

release under Texas law. The first is by parole and the second is

under a mandatory supervised release program. "Parole" means the

discretionary and conditional release of an eligible prisoner

sentenced to the institutional division so that the prisoner may

serve the remainder of his sentence under the supervision and

control of the pardons and paroles division. TEX.CODE CRIM.P.ANN.

art. 42.18 § 2(1) (Vernon 1996). "Mandatory supervision" means the

release of an eligible prisoner sentenced to the institutional

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division so that the prisoner may serve the remainder of his

sentence not on parole, but under the supervision and control of

the pardons and paroles division. TEX.CODE CRIM.P.ANN. art. 42.18 §

2(2) (Vernon 1996).

In Texas, it is entirely speculative whether an inmate will

actually obtain parole, inasmuch as there is no right to be

released on parole. TEX.CODE CRIM.P.ANN. art. 42.18 § 8(a) (Vernon

1996); Allison v. Kyle, 66 F.3d 71 (5th Cir.1995). In fact, we

have expressly held that there is no constitutional expectancy of

parole in Texas. Creel v. Keene, 928 F.2d 707 (5th Cir.1991).

However, we have not yet addressed the issue of whether there is a

constitutional expectancy of early release under mandatory

supervision when an inmate has acquired good time credits.

Texas Code of Criminal Procedure article 42.18 § 8(c) provides

that "a prisoner who is not on parole shall be released to

mandatory supervision" when his calender time plus his accrued

good-conduct time equals the maximum term to which he was

sentenced. Furthermore, "a prisoner released to mandatory

supervision shall, upon release, be deemed as if released on

parole." TEX.CODE CRIM.P.ANN. art. 42.18 § 8(c) (Vernon 1996).

According to the Supreme Court in Wolff, a Nebraska statutory

provision that bestowed mandatory sentence reductions for good

behavior created a liberty interest for prisoners. This interest

in a shortened prison sentence resulted from good time credits,

credits which were revocable only if the prisoner was guilty of

serious misconduct. Wolff, 418 U.S. at 557, 94 S.Ct. at 2975.

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 Texas law parallels the Nebraska law interpreted by the Court

in Wolff in two ways. First, both states have statutes which

bestow mandatory sentence reductions for good behavior. Second,

both states have statutes which allow for a revocation of good

conduct credit for misbehavior. However, we note that under the

Texas statute, certain inmates are not eligible for release to

mandatory supervision. A prisoner is not eligible for release to

mandatory supervision if he has been convicted of certain crimes

listed under art. 42.18 § 8(c).

The lower court relies heavily on Sandin in its decision. In

Sandin, a Hawaii prison inmate was charged with "high misconduct"

for using physical interference to impair a correctional function,

and "low moderate misconduct" for using abusive or obscene language

and harassing employees. He appeared before an adjustment

committee at a disciplinary hearing, but was not permitted to call

witnesses. He was convicted of the charges and sentenced to 30

days of disciplinary segregation on the high misconduct charge and

four hours of segregation for each of the other two charges. In

its decision, the Court re-evaluated the circumstances under which

state prison regulations afford inmates a liberty interest

protected by the Due Process Clause and determined, as it did in

Meachum, that the punishment received did not trigger the

Fourteenth Amendment.

Wolff is distinguishable from Sandin in one very important

facet. In Wolff, the Court based its analysis on the freedom from

restraint, while in Sandin it grounds its opinion on the type of

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restraint. It is a matter of kind rather than degree.

Furthermore, the Court in Sandin clearly left intact its holding in

Wolff, namely, that the loss of good time credits under a state

statute that bestowed mandatory sentence reductions for good

behavior must be accompanied by certain procedural safeguards in

order to satisfy due process. In Murphy v. Collins, 26 F.3d 541,

543 n. 5 (5th Cir.1994), we noted in dictum that such punishment

(loss of good time credit as the result of a disciplinary charge)

would trigger the higher standard of due process enunciated in

Wolff.

Unfortunately, the record lacks significant information as to

whether Madison was eligible for mandatory supervised release.

Therefore, we cannot determine whether he was entitled to due

process until sufficient facts have been revealed. Accordingly, we

vacate the judgment of the district court and remand this case for

further proceedings. In the event the lower court finds that

Madison is not eligible for mandatory release under 42.18 § 8(c),

the dismissal of Madison's complaint may be reinstated. In the

event the lower court finds that Madison is eligible for mandatory

release, the lower court should call for briefing from both the

State and Madison as to (1) whether the statutes regarding

mandatory release create a liberty interest requiring a higher

level of due process; and if so, (2) whether the disciplinary

hearing in this case satisfied the higher levels of due process

contemplated by the Supreme Court in Wolff.

VACATED and REMANDED.

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