Tubwell v. Roberts

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60233
Summary Calendar
_____________________
ROBERT E. TUBWELL,
Plaintiff-Appellant,
versus
RAYMOND ROBERTS, Superintendent, Mississippi
State Penitentiary; JOHN WESTLY BECK, Area
III Warden, Mississippi State Penitentiary;
CAROL ARNOLD, Superintendent’s Secretary/Clerk,
Mississippi State Penitentiary; KENARD WEST, K-9
Unit Sergeant, Mississippi State Penitentiary;
ANTHONY PORTER, K-9 Unit Lieutenant, Mississippi
State Penitentiary; STANLEY FLAGG, Case Manager
Supervisor, Mississippi State Penitentiary; RONNIE
FLEMING, Unit Administrator, Mississippi State
Penitentiary; OLA RIMPSON, Assistant Unit Administrator,
Mississippi State Penitentiary; LINDA JONES, Disciplinary
Committee Member; PAM ROBINSON, Disciplinary Committee
Member; WILLIE FULLER,Disciplinary Committee Member;
ETHEL CARLIZE, Disciplinary Committee Chairperson,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:96-CV-47-S-A
_________________________________________________________________
January 13, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Robert E. Tubwell, Mississippi state prisoner #31930, filed a
civil rights complaint against various prison officials and
*
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this opinion should not be published and is not precedent except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.
employees alleging that he was penalized as a result of an unfair
disciplinary proceeding that was not conducted with the requisite
procedural safeguards. He further alleged that as a result of the
disciplinary proceedings, he lost his class “A” classification,
which resulted in the loss of his housing assignment and writ
writing position and also affected the success of his future parole
applications.
Tubwell alleged that the change in classification also
deprived him of attending religious services along with his wife
and spiritual speakers. Tubwell alleged that the disciplinary
actions were filed in retaliation for his filing a grievance
against certain officers and because of his writ writing
activities.
Tubwell argues that the district court erred in granting the
defendants’ motion for summary judgment because it was not timely
filed in accordance with the magistrate judge’s scheduling order.
The district court’s order that Tubwell is referring to was an
order that limited the time for the defendants to file a motion for
summary judgment and/or to dismiss based on the defense of
qualified immunity. The motion that was ultimately filed by the
defendants was not based on the defense of qualified immunity and
was timely under the magistrate judge’s scheduling order. This
claim has no merit.
Tubwell also argues that the district court should not have
granted the defendants’ motion because he was not allowed to obtain
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sufficient discovery, and the magistrate judge did not give him
sufficient time to file a response to the defendants’ motion. The
record reflects that Tubwell was in possession of the relevant
documents necessary to respond to the motion and that he had more
than sufficient time to respond, and did in fact respond, to the
defendants’ motion. This claim also has no merit.
Tubwell argues that the district court erred in granting the
defendants’ motion for a summary judgment because there are many
outstanding genuine issues of material fact remaining with respect
to his claims.
Although the magistrate judge granted the defendants’ motion
for summary judgment, the magistrate judge concluded that Tubwell
had not stated a claim of constitutional significance. Therefore,
the correct standard of review is that required for a Fed. R. Civ.
P. 12(b)(6) ruling.
A district court’s ruling on a Rule 12(b)(6) motion is subject
to de novo review. See Barrientos v. Reliance Standard Life Ins.
Co., 911 F.2d 1115, 1116 (5th Cir. 1990). The motion may be
granted only if it appears that no relief could be granted under
any set of facts that could be proved consistent with the
allegations. Id.
Tubwell argues that he was entitled to the procedural
safeguards announced in Wolff v. McDonnell, 418 U.S. 539 (1974) in
the light of the penalties resulting from the disciplinary
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hearings. He also argues that the evidence presented at the
hearing did not support the finding of guilt.
Tubwell has no liberty interest in his classification, work,
or housing assignment, and, thus, cannot complain about any lack of
procedural due process in connection with the loss of those
privileges. See Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir.
1988); Meachum v. Fano, 427 U.S. 215, 225 (1976); Jackson v. Cain,
864 F.2d 1235, 1250 (5th Cir. 1989).
The record also reflects that the decision of the disciplinary
committee was not arbitrary and capricious because it was supported
by evidence presented at the hearing. See Stewart v. Thigpen, 730
F.2d 1002, 1005-06 (5th Cir. 1982).
Insofar as the disciplinary violation may have influenced the
decision of the parole board to deny Tubwell parole, he cannot
complain because a Mississippi prisoner does not have a liberty
interest in parole release. See Irving v. Thigpen, 732 F.2d 1215,
1217-18 (5th Cir. 1984); Scales v. Mississippi State Parole Bd.,
831 F.2d 565, 566 (5th Cir. 1987); Harden v. State, 547 So. 2d
1150, 1152 (Miss. 1989).
Tubwell has not alleged facts that show that he has not been
afforded a reasonable opportunity to exercise his religious
freedom. His allegations merely reflect that he is not entitled to
attend the services that may be attended by speakers and family
members. Tubwell has not alleged a viable First Amendment claim.
See Pedraza v. Meyer, 919 F.2d 317, 320 (5th Cir. 1990).
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Tubwell has also failed to allege a constitutional retaliation
claim because he has failed to allege a chronology of events from
which retaliation may be plausibly inferred. See Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995).
Tubwell argues for the first time on appeal that the
disciplinary committee and the classification committee consisted
of the same individuals and that his punishment was approved in one
proceeding without any break. He argues for the first time in his
supplemental brief that because he was exonerated of the charge
underlying the disciplinary charge in the state court, double
jeopardy should have precluded his conviction. Tubwell also argues
for the first time in his supplemental brief that because the
district attorney nolle prosequied the charge against him, he has
shown that the state court has invalidated the finding of his guilt
in accordance with Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),
and, thus, he is entitled to seek damages. Id. at 15.
The court will not consider an issue that a party fails to
raise in the district court in the absence of extraordinary
circumstances. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999). Therefore, these claims are not subject
to review.
The dismissal of Tubwell’s complaint for failure to state a
claim upon which relief may be granted is
A F F I R M E D.
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