BLACK v. WARREN

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Docket Number

No. 96-41238. Summary Calendar.

Advocates

Jerome Black, Lovelady, TX, pro se.

Judges

E. Grady Jolly
Fortunato Pedro Benavides

Acts

Judiciary And Judicial Procedure — Fees And Costs — Procedure — Proceedings In Forma Pauperis

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Smart Summary

Factual and Procedural Background

Jerome Black, a Texas prisoner, filed a civil rights lawsuit alleging due process violations during a prison disciplinary hearing. He claimed that Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) procedural rules created a liberty interest entitling him to certain procedural protections. Black contended that he was denied advanced written notice of the charge, the opportunity to present documentary evidence, and to call witnesses. The district court dismissed his claims as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Black appealed this dismissal.

Legal Issues Presented

Whether the district court erred in dismissing Black's claim that Texas procedural rules created a protected liberty interest entitling him to due process protections during disciplinary hearings.
Whether the dismissal of Black's claims for failure to state a claim and as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) was proper.
Whether Black was deprived of due process by the alleged denial of advanced written notice, opportunity to present documentary evidence, and to call witnesses at the disciplinary hearing.
Whether the disciplinary action against Black was supported by "some evidence" sufficient to satisfy constitutional due process requirements.

Arguments of the Parties

Appellant's Arguments

Black argued that Texas created a liberty interest through TDCJ-ID procedural rules governing disciplinary hearings, entitling him to due process protections.
He contended the district court erred in dismissing his claims of due process violations during the disciplinary hearing.
Black claimed he was not given advanced written notice of the charges against him.
He asserted he was improperly denied the opportunity to present documentary evidence and call witnesses at the hearing.
He argued that no evidence supported the disciplinary action taken against him.

The opinion does not contain a detailed account of the defendants' arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sandin v. Conner, 515 U.S. 472 (1995)	Standards for protected liberty interests and due process in prison disciplinary hearings	Applied to determine that Black's claims did not demonstrate a protected liberty interest or due process violation.
Mitchell v. Farcass, 112 F.3d 1485 (11th Cir. 1997)	De novo standard to review dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii)	Adopted the de novo review standard for dismissal for failure to state a claim.
McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997)	Same as above	Supported application of de novo review standard.
Atkinson v. Bohn, 91 F.3d 1127 (8th Cir. 1996)	Same as above	Supported application of de novo review standard.
Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997)	Standard for reviewing frivolousness under § 1915(e)(2)(B)(i)	Reviewed for abuse of discretion whether the case lacked an arguable basis in law or fact.
Robertson v. City of Plano, Tex., 70 F.3d 21 (5th Cir. 1995)	Due process requirements in civil rights claims	Referenced in rejecting Black's new claim raised on appeal.
Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989)	Threshold for constitutional due process violation in prison disciplinary hearings	Applied to determine that procedural rule violations did not amount to constitutional violations.
Banuelos v. McFarland, 41 F.3d 232 (5th Cir. 1995)	"Some evidence" standard for supporting disciplinary decisions	Found that the disciplinary charge against Black was supported by some evidence, satisfying due process.

Court's Reasoning and Analysis

The court reviewed the district court's dismissal under the standards set forth in 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), applying a de novo standard to the failure to state a claim dismissal and an abuse of discretion standard to the frivolousness dismissal. The court found no error in the district court's determination that Black failed to state a constitutional due process claim based on lack of advanced written notice. Although Black raised for the first time on appeal the claim that he was denied the opportunity to present evidence and call witnesses, he failed to demonstrate plain error. The court noted that even assuming TDCJ-ID procedural rules were violated, such violations did not rise to the level of a constitutional due process violation. Finally, the court determined that the disciplinary decision was supported by "some evidence," satisfying constitutional requirements. Therefore, the district court's dismissal was affirmed.

Holding and Implications

AFFIRMED.

The court upheld the district court's dismissal of Black's civil rights claims as frivolous and for failure to state a claim. The decision directly affects the parties by terminating Black's suit without relief. No new legal precedent was established; rather, the court applied existing standards regarding due process in prison disciplinary hearings and the procedural requirements for prisoner civil rights suits under the Prison Litigation Reform Act.

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JEROME BLACK, PLAINTIFF-APPELLANT, v. J.L. WARREN, DISCIPLINARY CAPTAIN; K. HARBIN, CO III, DEFENDANTS-APPELLEES.

PER CURIAM

Jerome Black, Texas prisoner #634349, appeals the district court's dismissal of his civil rights claims as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) (ii). Black argues that the district court erred in dismissing his claims of due process violations during a disciplinary hearing pursuant to Sandin v. Conner, 515 U.S. 472 (1995). He contends that Texas created a liberty interest by enacting certain Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) procedural rules governing prison disciplinary hearings. He also argues that no evidence supported the disciplinary action taken against him.

The Prison Litigation Reform Act (PLRA) amended § 1915 to require the district court to dismiss in forma pauperis (IFP) prisoner civil rights suits if the court determines that the action is frivolous or malicious or does not state a claim upon which relief may be granted. § 1915(e)(2)(B)(i) (ii); see also, § 1915A(b)(1). The language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6). We will therefore employ the same de novo standard to review the § 1915(e)(B)(ii) dismissal as we use to review dismissal pursuant to 12(b)(6). Mitchell v. Farcass, 112 F.3d 1485, 1489-90 (11th Cir. 1997); accord McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996). As to the dismissal pursuant to § 1915(e)(2)(B)(i), we review a determination by a district court that a case is frivolous for abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A complaint is frivolous if it lacks an arguable basis in law or fact. Id.

We have reviewed the record and find neither error nor abuse of discretion in the reasoning of the district court as to Black's claim of a due process violation because he did not receive advanced written notice of the charge. Black v. Warren, No. 9:96-CV-359 (E.D.Tex. Oct. 28, 1996). Black has not demonstrated plain error with respect to his contention, raised for the first time in this appeal, that he was deprived of due process because he was not allowed to present documentary evidence or to call witnesses at the hearing. See Robertson v. City of Plano, Tex., 70 F.3d 21, 23 (5th Cir. 1995); Sandin, 515 U.S. at 484-85.

Assuming TDCJ-ID procedural rules regarding notice and the right to call witnesses and present documentary evidence were violated, Black has not shown that such errors rise to the level of a constitutional due process claim. See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989). Even if a constitutional liberty interest is implicated by Black's challenge to the disciplinary decision on the ground that no evidence supports the charge, the record reveals that "some evidence" supports the charge. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).

AFFIRMED.