Cato v. Watson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-41244
Summary Calendar
MARKUS A. CATO,
Plaintiff-Appellant,
versus
A. WATSON; CAPTAIN UNIDENTIFIED DELAROSA; J. GIBSON; N. WEBB;
KELLI WARD; WARDEN UNIDENTIFIED HERRERA; CARY COOK,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CV-18
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Markus A. Cato, Texas prisoner # 619610, appeals the
district court’s dismissal of claims raised in his action under
42 U.S.C. § 1983. Cato’s complaint concerned his disciplinary
conviction for establishing a relationship with a correctional
officer and his subsequent transfer to the Robertson Unit.
Cato fails to brief the issue of the district court’s
without-prejudice dismissal of his claim regarding the conditions
at the Robertson Unit, and that claim is therefore waived.
*
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this opinion should not be published and is not precedent except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. 05-41244
-2-
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). To the
extent that Cato claimed that his transfer to the Robertson Unit
violated his First Amendment rights, or that the defendants
conspired to effect a transfer to the Robertson Unit, he has
waived his claims by failing to brief them adequately on appeal.
See id.Cato marshals several arguments in support of his contention
that the disciplinary conviction and transfer violated his
constitutionally protected right of due process. In order to
establish a § 1983 claim, Cato must show that “his federal
statutory or constitutional rights have been violated.” Geter v.
Fortenberry, 849 F.2d 1550, 1556 (5th Cir. 1988).
Cato admitted in the district court that he is not eligible
for release on mandatory supervision; he therefore has no
constitutionally protected interest in good time credits. See
Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002).
Similarly, the reduction in his good time earning status does not
implicate a protectable liberty interest. See Luken v. Scott,
71 F.3d 192, 193 (5th Cir. 1995).
Texas law does not create a liberty interest in parole, and
Texas prisoners have no constitutional expectancy of release on
parole. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997);
Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995). A prison
inmate has no liberty interest in a particular custody
classification. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir.
No. 05-41244
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1992). Loss of recreation and commissary privileges do not
implicate any due process concerns. Malchi v. Thaler, 211 F.3d
953, 958 (5th Cir. 2000); Madison, 104 F.3d at 767-68. Because
Cato’s disciplinary hearing did not threaten a protected liberty
or property interest, the protections of the Due Process Clause
did not attach to the proceeding. See Johnson v. Rodriguez, 110
F.3d 299, 308 (5th Cir. 1997). The fact of Cato’s transfer to
the Robertson Unit does not implicate a constitutionally
protected interest. See Olim v. Wakinekona, 461 U.S. 238, 244-46
(1983). In view of the above, Cato has failed to show error in
the district court’s dismissal of his due process claims
regarding his disciplinary conviction and his transfer to the
Robertson Unit.
Cato argues that the district court erred in dismissing his
equal protection claim. Cato does not identify any suspect class
of which he is a member, nor does he challenge the district
court’s determination that he must show that he was discriminated
against based on a suspect classification in order to establish
an equal protection violation. See Williams v. Bramer, 180 F.3d
699, 705 (5th Cir. 1999). Cato’s contention that his First
Amendment right to the free flow of mail was violated by the
interception of the letter is without merit. See Busby v.
Dretke, 359 F.3d 708, 720-21 (5th Cir. 2004).
Cato argues that the district court erred in dismissing his
retaliation claims. He contends that the defendants pursued the
No. 05-41244
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disciplinary charge and transferred him to the Robertson Unit in
retaliation for his receipt of a letter from the correctional
officer, who had resigned her position. Because Cato failed to
set forth a chronology of events from which retaliation may
plausibly be inferred, and because his allegations did not
establish that, but for the defendants’ alleged retaliatory
motive, the adverse acts would not have occurred, the district
court did not err in dismissing the retaliation claims. See
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Cato renews his claim that the defendants conspired to
violate his constitutional rights in connection with his
disciplinary proceedings. Because Cato has not shown that the
disciplinary proceeding entailed a violation of his
constitutional rights, he has not shown that the district court
erred in dismissing his conspiracy claim. See Villanueva v.
McInnis, 723 F.2d 414, 418 (5th Cir. 1984).
Cato’s remaining argument is that the district court erred
in dismissing his case without giving him the opportunity to
amend his complaint. Our review, however, convinces us that Cato
has pleaded his best case, and accordingly we have determined
that the district court did not err in dismissing the action.
See Jones, 188 F.3d at 327.
AFFIRMED.