United States District Court, S.D. Texas, Corpus Christi Division
TAGLE SENIOR UNITED STATES DISTRICT JUDGE
Jerome Johnson (“Johnson”), an inmate in the
Texas Department of Criminal Justice (“TDCJ”) -
Correctional Institutions Division, has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to
challenge a disciplinary proceeding and his related
conviction at the McConnell Unit in Beeville, Texas, where he
is currently incarcerated. Dkt. No. 1. He has also filed a
request for a preliminary injunction, asking for the Court to
enjoin Respondent Davis and her subordinates from harassing
and retaliating against him as a result of his challenge to
his disciplinary conviction. See Dkt. No. 36.
Johnson does not challenge his holding convictions.
Id. at 2.
disciplinary case number 20150349356, Johnson was accused and
found guilty of attempting to establish an inappropriate
relationship with a correctional officer. Dkt. No. 26-3 at 3.
As to the basis for this disciplinary offense, Johnson was
accused of “throwing kisses” at a correctional
officer and handing her his identification. Id. His
punishment included: (1) the loss of 45 days loss of
commissary, property, and telephone privileges; (2) the loss
of 15 days good-time credits, and (3) a reduction in his line
class from L1 to L2. Dkt. No. 26-3; Dkt. No. 15 at 3. Johnson
disputed his guilt and the findings made in his disciplinary
proceedings, and appealed the finding of guilty through the
TDCJ grievance procedure. His grievance was denied at both
Step 1 and Step 2. Dkt. No. 26-3 at 3.
Court has before it: Johnson's petition, Dkt. No. 1;
Respondents' motion for summary judgment, Dkt. No. 15;
Johnson's response, Dkt. No. 18; the Memorandum and
Recommendations (“M&R”) of the magistrate
judge this case was referred to pursuant to 28 U.S.C. §
636(b) addressing Respondents' motion for summary
judgment, Dkt. No. 35, in which Johnson's objections to
authenticated summary judgment evidence submitted by
Respondents pursuant to the order of the magistrate judge,
Dkt. No. 33, are overruled; Johnson's motion for a
preliminary injunction, Dkt. No. 36; and the magistrate
judge's M&R addressing Johnson's motion for a
preliminary injunction, to which Johnson did not respond. The
Court reviews objected-to portions of a magistrate
judge's proposed findings and recommendations de novo. 28
U.S.C. § 636(b)(1) (“A judge of the court shall
make a de novo determination of those portions of the report
or specified proposed findings and recommendations to which
objection is made.”).
M&R addressing Respondents' summary judgment motion
recommends that it be granted, and Johnson's action for
habeas corpus relief be denied on the merits, with the
exception of one claim under the Eighth Amendment, which it
recommends the Court dismiss without prejudice. Dkt. No. 35
at 10. This M&R details the applicable law and reasons
for these recommendations in detail. See id. It
further recommends that a Certificate of Appealability be
denied. Id. Johnson objects to the M&R
addressing summary judgment on the bases that it applied the
wrong summary judgment standard to Respondents' motion
and Johnson's response, and ignored evidence raising a
genuine issue of material fact. See Dkt. No. 40. On
review of the M&R's application of summary judgment
law to Respondents' motion, the Court finds no legal
error in its application to Johnson's claims.
judgment is appropriate under the Federal Rules of Civil
Procedure “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 65(c). In his petition, Johnson alleges
violations of his due process rights stemming from his
disciplinary hearing and conviction that are not cognizable
under any set of facts. See Dkt. No. 35 at 5-9. For
instance, Johnson's claim that he has a protected liberty
interest in his good-time credits cannot be squared with
settled Fifth Circuit law stating that a petitioner must be
eligible for release to mandatory supervision to claim such
an interest, in view of the fact that Johnson is statutorily
ineligible for such release because of his conviction for
second-degree sexual assault. See Arnold v.
Cockrell, 306 F.3d 277, 278 (5th Cir. 2002); Tex.
Gov't Code § 508.149(a)(8)(West 2001). In sum, on
independent review of Respondents' motion, Johnson's
response, and the M&R addressing them, as well as the
remainder of the record in this case and applicable law, the
Court finds no reason to disturb the findings of this
M&R, Dkt. No. 35.
M&R addressing Johnson's preliminary injunction
suggests that it be denied without prejudice, as it fails to
meet any of the four factors required to obtain a preliminary
injunction under the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 65(a). On independent review of
Johnson's motion and the M&R addressing it, as well
as applicable law, the Court finds no reason to disturb the
findings of this M&R, Dkt. No. 41. Yet Johnson's
request for injunctive relief reiterates Eighth Amendment
claims alleging retaliation and harassment in response to his
challenge to his disciplinary conviction from his petition.
The Court notes, as the magistrate judge did, that while such
claims are not proper under a § 2254 motion, they may be
brought in a civil rights lawsuit filed pursuant to 28 U.S.C.
foregoing reasons, the Court adopts the entirety of the
magistrate judge's proposed findings and recommendations
in Dkt. Nos. 35 and 41; GRANTS Respondent's motion for
summary judgment, Dkt. No. 15; DISMISSES WITHOUT PREJUDICE
Johnson's cause of action for violation of his Eighth
Amendment rights, which he is free to file pursuant to §
1983; DENIES Johnson's cause of action for habeas corpus
relief, Dkt. No. 1; and DENIES Johnson a ...