Cotton v. Chapman ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2009
No. 08-11013
Summary Calendar Charles R. Fulbruge III
Clerk
JULIET R COTTON, also known as J R Woodard,
Petitioner-Appellant
v.
W ELAINE CHAPMAN, Warden, Federal Medical Center Carswell,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CV-403
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Juliet R. Cotton, federal prisoner # 53034-019, appeals the district court’s
denial of her 28 U.S.C. § 2241 petition challenging a prison disciplinary
proceeding in which she was found guilty of refusing to provide a urine sample
and displaying insolence to staff members. Cotton argues that the district court
erred in determining that the evidence was sufficient to support the decision of
the disciplinary hearing officer (DHO). She also contends that the DHO violated
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-11013
her due process rights and that the disciplinary action was retaliation for filing
a civil lawsuit.
The DHO was presented with evidence from Officer Escalera and
Lieutenant Johnson that Cotton yelled and insulted Officer Escalera before
leaving Officer Escalera’s side and walking towards her room. Though Cotton
testified that she did not act in this manner, the DHO chose to give greater
weight to the evidence from Officer Escalera and Lieutenant Johnson than the
evidence from Cotton. The DHO’s decision has some basis in fact and therefore
is not in error. See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 455-56 (1985).
Cotton’s asserts that her due process rights were violated. The denial of
a continuance, the withholding of memoranda from Lieutenant Johnson and
other documentation, and technical errors in the transcribing of sanctions do not
state constitutional claims or implicate due process rights. See Jackson v. Cain,
864 F.2d 1235, 1251 (5th Cir. 1989); Wolff v. McDonnell, 418 U.S. 539, 564-69
(1974). Cotton’s argument that the DHO denied her due process rights by
preventing her from calling witnesses is not supported by the record. Cotton did
not attempt to call her purported witness at the hearing and did not learn of her
identity until months later. Cotton’s argument that she was not informed of her
rights prior to the disciplinary hearing is also not supported by the record. The
report written by the DHO states that Cotton was informed of her rights prior
to the hearing. Cotton has not shown that the district court erred in
determining that her due process rights were not violated in conjunction with
the disciplinary proceeding. See Wolff, 418 U.S. at 564-69.
Cotton’s claim of retaliation also fails. Her allegation is based on the fact
that the incident with Officer Escalera occurred two days after she was granted
in forma pauperis status in an unrelated civil action. Cotton does not allege that
Officer Escalera is a party to the civil lawsuit. Cotton fails to allege facts
showing that, but for a retaliatory motive, she would not have been disciplined
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No. 08-11013
for being insolent and refusing to provide a urine sample. See Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995).
Accordingly, the judgment of the district court is AFFIRMED.
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