Neal v. Casterline ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-30909
Summary Calendar
DENARD DARNELL NEAL,
Petitioner-Appellant,
versus
CARL CASTERLINE,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:03-CV-1743-FAL
Before GARWOOD, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Denard Darnell Neal, federal prisoner # 23843-008, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus
petition, challenging his prison disciplinary conviction of
attempted assault of a staff member. Neal was sentenced to lose 27
days of good-conduct time and to other penalties. Neal contends
that he was denied due process at his disciplinary hearing in
*
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opinion should not be published and is not precedent except under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.
several respects.
The incident report alleged that on January 14, 2003, as
Neal’s cell door was being opened, he rushed toward the door and
attempted to strike Officer Reed with his upper body. After being
placed back in his cell, Neal did it again. Reed reported that
Neal then had to be physically pushed back into his cell. In his
habeas petition Neal alleged, however, that on that date he was
assaulted by three members of the prison staff and that Reed then
falsely charged Neal with attempted assault as a cover-up.
A federal prisoner inmate has a liberty interest in his
accumulated good-time credit. See Henson v. U.S. Bureau of
Prisons, 213 F.3d 897, 898 (5th Cir. 2000). “When a prisoner has
a liberty interest in good time credit, revocation of such credit
must comply with minimal procedural requirements.” Id. However,
“[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556
(1974).
“[T]he requirements of due process are satisfied if some
evidence supports the decision by the prison disciplinary board to
revoke good time credits.” Superintendent, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 455 (1985). Furthermore, a court’s
determination “whether this standard is satisfied does not require
examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence.” Id.Neal argues that he is entitled to relief because the
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disciplinary hearing officer (DHO) erroneously assumed that a
prison rule required an inmate to move to the back of his cell when
his cell door was being opened. Neal also asserts that the DHO
found that the attempted assault occurred inside the cell whereas
Officer Reed stated that it took place at the cell door. Neal
avers that both the DHO’s report and Reed’s incident report are
false.
Neal’s argument has no merit because the hearing report shows
that the DHO found the facts to be as stated in Reed’s incident
report and in other hearing evidence. It is immaterial whether
Neal violated a rule requiring him to stand at the back of his
cell, because he was charged with attempted assault.
Neal complains that the DHO erred by relying on a memorandum
from a correctional officer who did not witness the incident. He
also asserts that the DHO relinquished control of the hearing to
the officer. This is refuted by the DHO’s report of the hearing,
which includes his findings and reasons for the decision. The DHO
stated that he based his decision on Reed’s report and testimony
and the eyewitness testimony of a prison counselor. This was fully
adequate evidence to support Neal’s conviction. See Hill, 472 U.S.
at 455-56.
Neal contends that he was denied due process by the DHO’s
refusal to review the surveillance videotape of the incident. He
asserts that the tape shows that Officer Reed is lying. As proof,
he attached as an exhibit to his brief copies of six still photos
of the area outside his cell, made from the tape. Neal asserts
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that they show an officer pushing (assaulting) him.
The still photos are not conclusively favorable to Neal,
however. They also support Reed’s evidence, accepted by the DHO,
that Neal had to be physically pushed back into his cell.
Moreover, there is no indication that any of the tape shows what
happened inside Neal’s cell, which is where, Reed testified, the
offense took place. If the tape showed that, then Neal should have
filed relevant extracts from the tape as his exhibits – apparently
he had access to the complete tape. Accordingly, Neal has not
shown that the DHO’s refusal to review the videotape denied him due
process, i.e., fundamental fairness. See, e.g., Neal v. Cain, 141
F.3d 207, 214 (5th Cir. 1998).
Neal contends that he was denied due process because the DHO
failed to give him access to four memorandums used to find him
guilty. However, the report indicates that the DHO based Neal’s
conviction on evidence provided by Reed and the counselor. The
report does not advert to whether Neal asked to see these
memorandums, what they stated, or that Neal knew they existed. At
any rate, he has not shown or even argued that they had any effect
on the result of the hearing, or how the DHO may have
abused his discretion in not providing Neal access to the
memorandums. See Wolff, 418 U.S. at 566 (discretion of prison
officials); Richards v. Dretke, 394 F.3d 291, 294-96 (5th Cir.
2004); Smith v. Rabalais, 659 F.2d 539, 541, 546 (5th Cir. 1981).
Neal contends that he is entitled to relief because the
magistrate judge obtained relevant documents from prison officials
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without giving him access to them. He argues that this denied him
the right to challenge evidence the DHO used against him. This
lacks merit because Neal could have sought to obtain the record and
exhibits from this court for use in preparing his brief.
Furthermore, most if not all of the relevant evidence is summarized
in the DHO’s report, a copy of which Neal undoubtedly received.
See Hill, 472 U.S. at 455; Richards v. Dretke, supra; Smith v.
Rabalais, supra.Neal argues that the magistrate judge adjudicated his case on
the merits without the parties’ consent pursuant to 28 U.S.C. §
636(c). This is refuted by the magistrate judge’s report, which
shows that he merely proposed findings and recommendations, and by
the district court’s final order that adopts the report.
Neal asserts that the magistrate judge violated 28 U.S.C. §
636 by denying his motion for discovery. Because Neal did not
appeal the magistrate judge’s ruling to the district court,
however, this court lacks jurisdiction to consider the issue. See
Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1988).
AFFIRMED.
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