Kelly Brooks v. Bruce Pearson , 428 F. App'x 384 ( 2011 )

Case: 10-60882 Document: 00511507722 Page: 1 Date Filed: 06/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 14, 2011
No. 10-60882
Summary Calendar Lyle W. Cayce
Clerk
KELLY TURAN BROOKS,
Petitioner-Appellant
v.
BRUCE PEARSON, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:08-CV-235
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Kelly Turan Brooks, federal prisoner # 42586-037, commenced this 28
U.S.C. § 2241 action asserting that his constitutional rights had been violated
during a prison disciplinary proceeding in which he was found to have
encouraged a group demonstration. His punishment included the loss of 27 days
of good time credit. Brooks seeks the restoration of his good time credit and
expungement of the charge. He argues that the disciplinary charge was
manufactured to interfere with his right to pursue the redress of grievances
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60882
regarding the food service conditions at his correctional facility. He also
contends that he was denied due process in the disciplinary proceeding because
he never met with the staff representative appointed to assist him, which
prevented him from being able to collect and present evidence in his own defense
due to his confinement in the special housing unit.
According to the incident report, Brooks expressed concerns regarding food
issues and the conditions in food service to the food service administrator, the
assistant food service administrator, and a food service assistant. Brooks stated
that he was representing a group of inmates and that they were not going to
take it anymore. He said that he was going to file paperwork with the other
inmates, that the issues were not going to be taken lightly, and that he was
going to represent the other inmates when he was transferred. The food service
administrator stated that in her opinion, “Brooks, could be setting the stage to
sabotage food service operations” and that his demeanor and threat to make
changes led her to believe that he would lead inmates into a disturbance.
Brooks testified at the disciplinary hearing that the charge was not true,
that he told the food service administrator that there were problems in the
kitchen, including violations of policy, and that many inmates had come to him
asking why there were food service issues. However, he testified that he never
said that he was a spokesperson for a group of inmates. The disciplinary
hearing officer (DHO) relied on Brooks’s testimony, the incident report, and the
memoranda submitted by the food service administrator and food service
assistant in determining that the charge was true. The DHO noted that when
inmates attempt to organize or represent other inmates, things have a tendency
to escalate and potentially turn into riots or work stoppages. He noted that
although Brooks had the right to file administrative remedies and to write
letters, he did not have the right to represent a group of inmates or to organize
others. The DHO concluded that Brooks was attempting to encourage a group
demonstration by trying to represent other inmates.
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The district court determined that Brooks had received due process in the
disciplinary proceedings, that he did not have a constitutional right to the
assistance of staff counsel in those proceedings because he was not illiterate and
the issues involved were not complex, and that there was some evidence to
support the DHO’s finding that the charge was true.
“[A] prison inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
Although there is a right to petition for the redress of grievances, Brooks did not
show that he exercised that right in a manner consistent with his status as a
prisoner. See Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th
Cir. 2004). As the DHO found, although Brooks had the right to complain and
file grievances regarding the food service conditions, he did not maintain the
right to represent a group of inmates or to organize other inmates. See Adams
v. Gunnell, 729 F.2d 362, 367-68 (5th Cir. 1984). Thus, the disciplinary charge
was not punishment for a valid exercise of his First Amendment rights.
To the extent that Brooks challenges the finding that the disciplinary
charge was true, he also has not shown a violation of his constitutional rights.
“[P]rison disciplinary proceedings will be overturned only where there is no
evidence whatsoever to support the decision of the prison officials.” Reeves v.
Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994); see also Hudson v. Johnson, 242 F.3d
534, 536 (5th Cir. 2001). Given the incident report, the statements from the food
service administrator and food service assistant, and Brooks’s own admissions,
there was some evidence to support the finding of guilt on the disciplinary
charge. See Hudson, 242 F.3d at 536-37.
Because there are no allegations or evidence that Brooks was illiterate,
and he concedes in his brief that this was not an issue, and the issues presented
were not complex but merely related to whether he had sought to organize a
group demonstration, Brooks has not shown that he was entitled to staff
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representation as a matter of due process. See Wolff v. McDonnell, 418 U.S. 539,
570 (1974); Morgan v. Quarterman, 570 F.3d 663, 668 (5th Cir. 2009). Thus,
Brooks’s allegations regarding the failure to meet with his staff representative
do not establish a constitutional violation.
AFFIRMED.
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