United States District Court, S.D. Texas, Houston Division
RANDY J.J. KAIZER, TDCJ-CID #1730604 Plaintiff,
SERGEANT SPIVEY, et al, Defendants.
MEMORANDUM ON DISMISSAL
VANESSA D GILMORE UNITED STATES DISTRICT JUDGE
J.J. Kaizer, an inmate of the Texas Department of Criminal
Justice - Correctional Institutions Division, sued in August
2017, alleging civil rights violations resulting from a
denial of access to the courts and a denial of due process.
Kaizer, proceeding pro se and in forma pauperis, sues
Sergeant Spivey; Lieutenant Scott; John Doe, Unit Major; and
threshold issue is whether Kaizer's claims should be
dismissed as frivolous.
alleges that on March 10, 2017, Officer Falsey charged Kaizer
with possessing a weapon, a saw-like blade, in disciplinary
case number 20170204425. On March 24, 2017, Captain Watkins
presided at Kaizer's disciplinary hearing. Captain
Watkins found Kaizer guilty and punished him with a loss of
recreation privileges for forty-five days; a loss of
commissary privileges for forty-five days; suspension of
contact visits through June 1, 2017; placement in solitary
confinement for 15 days; and a reduction in good-time earning
class status from State Approved Trusty 3 to Line 1.
Spivey allegedly withheld evidence and falsified government
documents. Kaizer claims that Sergeant Spivey had told Kaizer
exactly who planted the weapon and why, but he refused to
present this evidence at the disciplinary hearing. Lieutenant
Scott did not present evidence to the court and falsified
government documents by not including Spivey's testimony
on the report. Kaizer complains that the Unit Major withheld
evidence, destroyed evidence, and did not allow Kaizer to
defend himself in court. Warden Jones, who is ultimately
responsible for her staff, did not allow Kaizer to defend
himself at the Unit Classification Committee hearing. On
March 10, 2017 all of his legal work was confiscated and was
not returned to him until May 3, 2017. Kaizer did not have
access to any of his legal work for a total of 55 days.
asks that Civil Action Number 2:15-0396 be dismissed until he
has access to the prison law library. He also requests
placement in protective custody and access to 24-hour medical
federal court has the authority to dismiss an action in which
the plaintiff is proceeding in forma pauperis before
service if the court determines that the action is frivolous
or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint
is frivolous if it lacks an arguable basis in law or fact.
See Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997)). "A complaint lacks an arguable basis
in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a
legal interest which clearly does not exist." Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormickv. Stalder, 105 F.3d 1059, 1061 (5th Cir.
protections in the context of prison discipline is not the
same as due process in the criminal law context because
"[p]rison discipline proceedings are not a part of a
criminal prosecution, and the full panoply of rights due a
criminal defendant does not apply." Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). The Supreme Court
has historically held that the Due Process Clause is
applicable to disciplinary proceedings where a prisoner is
threatened with a loss of good-time or the imposition of
solitary confinement. Id. The Court held that
inmates must be afforded written notice of the claimed
violation at least twenty-four hours before a disciplinary
hearing, a written statement of the fact finders as to the
evidence relied on and reasons, and the right to call
witnesses and present documentary evidence where such would
not be unduly hazardous to institutional safety or
Supreme Court subsequently limited challenges to disciplinary
cases in Sandin v. Conner, 515 U.S. 472 (1995). The
Court referred to its discussion in Wolff v.
McDonnell, regarding solitary confinement as
"dicta." Id. The Supreme Court went on to
hold that when discipline, even segregated confinement, did
not "present the type of atypical, significant
deprivation in which a state might conceivably create a
liberty interest, " there was no "protected liberty
interest" that would entitle the inmate to the
procedural protections set forth in Wolff. Id. at
Fifth Circuit has applied Sandin to a number of
situations. Punishment consisting of placement in
administrative segregation or the loss of the opportunity to
earn good-time is not enough to trigger the protection of the
Constitution. Lukenv. Scott, 71 F.3d 192(5thCir.
1995). The loss of the opportunity to earn good-time will not
trigger the protection of the Constitution even when an
inmate is eligible for mandatory supervision. Malchi v.
Thaler, 211 F.3d 953 (5th Cir. 2000). The imposition of
commissary and cell restrictions likewise will not trigger
the protection of the Constitution. Madison v.
Parker, 104 F.3d 765, 768 (5th Cir. 1997). The loss of
good-time will not support relief to the extent that it
adversely affects parole eligibility. Sandin, 515
U.S. at 487. However, the loss of good-time will trigger the
protection of the Constitution if, and only if, a prisoner is
eligible for release on mandatory supervision. Madison v.
Parker, 104 F.3d at 769.
punishment consisted of a loss of recreation privileges for
forty-five days; a loss of commissary privileges for
forty-five days; suspension of contact visits through June 1,
2017; placement in solitary confinement for 15 days; and a
reduction in good-time earning class status from State
Approved Trusty 3 to Line 1. Kaizer states that he is
ineligible for release on mandatory supervision. (Docket
Entry No. 13, p. 4). The restrictions on Kaizer's
privileges are merely changes in the conditions of his
confinement, which do not implicate due process concerns.
Madison v. Parker,104 F.3d 765, 768 (5th Cir.
1997). They are not penalties that would be considered
"the type of atypical, significant deprivation"
that would be actionable. Id. See also Malchi v.
Thaler,211 F.3d 953, 958 (5th Cir. 2000); Pichardo
v. Kinker,73 F.3d 612, 612-13 (5th Cir. 1996). The
Fifth Circuit has specifically held commissary and telephone
restrictions do not implicate protected liberty interests.
Lewis v. Dretke, No. 02-40956, 54 Fed.Appx. 795,
2002 WL 31845293 (5th ...