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Dodd v. Herrera

United States District Court, S.D. Texas, Houston Division

September 18, 2019

ROGER LAVOY DODD, TDCJ #01162194, Plaintiff,
WARDEN ROBERT HERRERA, et al., Defendants.



         The 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.

         I. BACKGROUND

         Dodd is 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 Unit.

         Dodd, 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.”

         On 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 prehearing detention.

         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.


         Dodd, 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).

         Dodd 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).

         Dodd 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).

         Applying 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.[1] 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.


         A. Prison ...

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