United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
plaintiff, Roger Lavoy Dodd (TDCJ #01162194), is currently
incarcerated in the Texas Department of Criminal Justice
– Correctional Institutions Division
(“TDCJ”). Dodd has filed a hand-written pleading
entitled “Extraordinary Petition Complaint . . . That
Exerts a Magnitude of Unconstitutional Rights Against Prison
Disabled Offender” [Doc. # 1], which includes exhibits
associated with a prison disciplinary proceeding. The
clerk’s office construed this pleading as one asserting
the violation of civil rights under 42 U.S.C. § 1983.
The Court concludes that this action must be dismissed for
reasons outlined below.
currently incarcerated at the Pack Unit in Navasota. Dodd has
filed this civil action against the following defendants who
are employed by TDCJ at the Pack Unit, including Warden
Robert Herrera, Building Major D. Sullivan, Captain Nixon,
Classification Officer B. Tilley, an unidentified Gang
Intelligence Officer, and Officer K. Merryman. Dodd’s
primary complaint against these defendants is that his
constitutional rights were violated in connection with
disciplinary charges that were lodged against him at the Pack
who describes himself as elderly, blind, and disabled,
reports that he was assaulted by another inmate named Long
Nguyen (TDCJ #1879355) in the chow hall on July 9, 2019.
According to Dodd, Nguyen is “an active gang
member” who was working as a porter in the chow hall
when he assaulted Dodd by striking him with a serving tray
and his fists. Dodd was taken to prehearing detention and
charged in TDCJ Case No. 20190275336 with violating prison
disciplinary rules by engaging in a fight with Nguyen. At a
disciplinary hearing on July 22, 2019, Dodd protested that he
was attacked from behind and denied participating in a fight.
Based on a report by the charging officer (Officer Merryman)
and witness testimony, the hearing officer (Captain Nixon)
found Dodd guilty as charged. As punishment, Dodd lost
recreation and commissary privileges for 30 days. Dodd was
released from pre-hearing detention the same day as the
disciplinary hearing on July 22, 2019, after spending 13 days
in “solitary confinement.”
August 21, 2019, the Court received the pending
“Extraordinary Petition” from Dodd, alleging that
he was wrongfully convicted of disciplinary charges while the
inmate who attacked him appears to have gone unpunished. Dodd
contends that Nguyen should be charged with aggravated
assault in violation of Texas law and transferred to another
unit. Dodd contends further that Officer Merryman violated
his rights by lodging false charges against him and that
Captain Nixon violated his rights by finding him guilty based
on Officer Merryman’s false report. Dodd contends that
Merryman should be reprimanded and that Nixon should be
forced to “step down” as a disciplinary hearing
officer. Dodd holds Warden Herrera and Building Major
Sullivan responsible for the violation of his constitutional
rights. Dodd asks for his prison disciplinary conviction to
be “removed” from his record and he also seeks
compensatory damages for certain items of personal property
that were “lost or stolen” when he was in
support of his complaint, Dodd provides a copy of the TDCJ
Disciplinary Hearing Report and Record for Case No.
20190275336 [Doc. # 1-3, at 1]. He also provides a Step One
Grievance form [Doc. # 1-3, at 2], which he filed on July 9,
2019 to challenge the disciplinary charges that had been
lodged against him that same day. That grievance
(#2019154189) was returned to Dodd unprocessed on July 15,
2019, noting that the disciplinary case against him had not
yet been entered in the system.
APPLICABLE LEGAL STANDARDS
who represents himself, does not invoke any particular legal
authority on which his Extraordinary Petition is based.
Dodd’s pro se pleadings are entitled to a liberal
construction, meaning they are subject to “less
stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 596 (1972). The title a prisoner gives to
pro se pleadings is not controlling; rather, courts
look at the content of the pleading. United States v.
Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983).
seeks relief from a prison disciplinary conviction, asking
that it be removed from his record. Although the punishment
imposed reflects that he did not lose any good-time credit,
challenges to prison disciplinary convictions are routinely
asserted in a petition for a writ of habeas corpus, which
provides a remedy for prisoners challenging the “fact
or duration” of confinement. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973).
also asserts claims concerning the conditions of his
confinement, which are actionable, if at all, under 42 U.S.C.
§ 1983. See Cook v. Texas Dep’t of Criminal
Justice Transitional Planning Dep’t, 37 F.3d 166,
168 (5th Cir. 1994). In that respect, a civil rights action
under § 1983 is the appropriate remedy where a prisoner
challenges “the rules, customs, and procedures
affecting ‘conditions’ of confinement, ”
and not the “fact or duration of confinement.”
Cook, 37 F.3d at 168 (quoting Spina v.
Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987)). Where there
is any doubt about the proper vehicle, the Fifth Circuit has
adopted a “bright-line rule” for resolving
whether a claim is actionable on habeas corpus review or must
be raised in a civil rights complaint under § 1983:
“If ‘a favorable determination . . . would not
automatically entitle [the prisoner] to accelerated
release’ . . . the proper vehicle is a § 1983
suit.” Carson v. Johnson, 112 F.3d 818, 820-21
(5th Cir. 1997) (internal citation omitted).
a liberal construction to the pleading filed by Dodd, the
Court concludes that he presents a mix of habeas corpus and
civil rights claims. The Fifth Circuit has counseled that if
a complaint contains both habeas and civil rights claims
under 42 U.S.C. § 1983, “the district court should
separate the claims and decide the § 1983 claims.”
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)
(citing Serio v. Members of La. State Bd. of
Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987)). The
distinction matters because claims alleging violations of
civil rights under § 1983 are subject to different
filing-fee and screening requirements under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915A and 1915, et
seq. As discussed further below, the Court has
separated Dodd’s claims and concludes that neither his
habeas corpus challenge nor his related civil rights claims
are cognizable. Therefore, under either legal theory this
case must be dismissed for failure to state a viable claim
upon which relief may be granted.