United States District Court, E.D. Texas, Texarkana Division
W. SCHROEDER, III UNITED STATES DISTRICT JUDGE.
De'Von Sean Strong, an inmate of the Gib Lewis Unit with
the Texas Department of Criminal Justice, Correctional
Institutions Division proceeding pro se, filed this
civil rights lawsuit under 28 U.S.C. § 2254. Docket No.
1. Petitioner challenged the validity of his disciplinary
conviction for assault by fighting, for which he lost good
time credit, 45 days recreation, commissary and property
privileges and remained at ¶ 3 status. Petitioner
alleged that his due process rights were violated because the
hearing was not recorded when he waived attendance and TDCJ
abandoned its disciplinary procedures. He also alleged that
evidence used against him was fabricated and that he was
denied the right to face his accuser.
Court referred the case to the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the
Assignment of Duties to United States Magistrate Judges. The
Magistrate Judge issued a Report and Recommendation,
recommending the lawsuit be dismissed. Docket No. 4. In the
report, the Magistrate Judge concluded that the punishment
imposed on Petitioner did not implicate a protected liberty
interest entitling him to due process protections.
objections, Petitioner states that he understands he is not
entitled to certain due process liberties but argues there
are “fundamental rights” that protect him, namely
equal protection of the laws under the 14th
amendment. Docket No. 6 at 1. Petitioner alleges several due
process violations, including that he was not allowed to be
present at the hearing, he was not given a statement of the
evidence relied upon for the disciplinary decision and he was
not allowed to present witnesses and documentary evidence.
Id. at 2-3. Finally, Petitioner asserts that his
punishment uniquely involved sexual harassment by staff and
restrictions that posed hazards to his physical and mental
health. Id. at 4.
Court has conducted a careful de novo review of
those portions of the Magistrate Judge's proposed
findings and recommendations to which the Plaintiff objected
and finds the objections lack merit. See 28 U.S.C.
§ 636(b)(1) (District Judge shall “make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.”). As outlined by the Magistrate
Judge, petitioner concedes he is not eligible for release on
mandatory supervision. As a result, the due process
requirements for disciplinary proceedings outlined in his
objection are inapplicable and his claim is without merit. To
the extent petitioner seeks to assert a claim under the Equal
Protection Clause or a claim for civil rights violations for
the alleged sexual harassment and physical and mental harms,
Petitioner may file a separate civil action. However, such
claims are not properly raised in Petitioner's
is not entitled to a certificate of appealability. An appeal
from a judgment denying post-conviction collateral relief may
not proceed unless a judge issues a certificate of
appealability. See 28 U.S.C. § 2253. The
standard for a certificate of appealability requires the
petitioner to make a substantial showing of the denial of a
federal constitutional right. See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a
substantial showing, the petitioner need not establish that
he would prevail on the merits. Rather, he must demonstrate
that the issues are subject to debate among jurists of
reason, that a court could resolve the issues in a different
manner, or that the questions presented are worthy of
encouragement to proceed further. See Slack, 529
U.S. at 483-84. Any doubt regarding whether to grant a
certificate of appealability should be resolved in favor of
the petitioner, and the severity of the penalty may be
considered in making this determination. See Miller v.
Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
case, Petitioner has not shown that any of the issues would
be subject to debate among jurists of reason and the
questions presented are not worthy of encouragement to
proceed further. Petitioner has failed to make a sufficient
showing to merit the issuance of certificate of
appealability. Accordingly, a certificate of appealability
will not be issued. It is accordingly
that the Petitioner's objections (Docket No. 6) are
OVERRULED and the Magistrate Judge's
Report (Docket No. 4) is ADOPTED as the
opinion of the District Court. It is further
that the above-styled civil action is DISMISSED WITH
PREJUDICE. It is further
that any and all motions which may be pending in this civil
action are hereby DENIED.