Eduardo Sanchez v. Shaylon Allen

Case: 13-41247 Document: 00513017413 Page: 1 Date Filed: 04/23/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 13-41247 April 23, 2015

Summary Calendar

Lyle W. Cayce

Clerk

EDUARDO SANCHEZ,

Plaintiff-Appellant

v.

SHAYLON ALLEN, Ad. Seg Captain; JAMES POWERS, Ad. Seg Major;

DAWN E. GROUNDS, Warden; RANDY MCBAIN, Ad. Seg Sergeant;

ANGELA HILBORN, Ad. Seg Officer; MS. REED, Ad. Seg Sub-counsel; MS.

FORTE, Ad. Seg Sub-counsel; UNIT GRIEVANCE DEPARTMENT OF

TELFORD UNIT, Individually and in their Official Capacities,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:13-CV-25

Before JONES, BENAVIDES, and GRAVES, Circuit Judges.

PER CURIAM: *

Eduardo Sanchez, Texas prisoner # 873766, appeals the dismissal of his

42 U.S.C. § 1983 complaint, in which he asserted claims of due process

violations and retaliation against various employees of the Texas Department

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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No. 13-41247

of Criminal Justice stemming from a prison disciplinary proceeding. The

district court granted the defendants’ motion for summary judgment on the

grounds that the claims lacked merit, and the defendants were entitled to

Eleventh Amendment immunity and qualified immunity.

We review the grant of summary judgment de novo, applying the same

standards as the district court. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d

752, 754 (5th Cir. 2011). Summary judgment is appropriate where the “movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

Sanchez first challenges the district court’s determination that his due

process challenge to his reduction in classification from Level 1 to Level 2,

denial of access to property, denial of commissary and visitation privileges, and

recreation restrictions—prior to any disciplinary hearing—lacked merit. This

claim of “punishment” without notice and a hearing fails, however, as

Sanchez’s change in classification status, the denial of commissary and

visitation privileges, and cell restrictions do not implicate a liberty interest

protected by the Due Process Clause. See United States v. Jones, 664 F.3d 966,

974 (5th Cir. 2011); Malchi v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000);

Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999). In addition, Sanchez’s claim

that certain (unidentified) property was taken from him does not state a claim

under § 1983. See Stauffer v. Gearhart, 741 F.3d 574, 583 (5th Cir. 2014).

Further, to the extent Sanchez contends prison rules and regulations were

violated in connection with his reduction in classification, cell restrictions, and

denial of various privileges, he is not entitled to relief. See Jackson v. Cain,

864 F.2d 1235, 1251 (5th Cir. 1989).

Next, Sanchez challenges the dismissal of his claim that the defendants

violated his due process rights throughout the disciplinary hearing

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No. 13-41247

proceedings. As the summary judgment evidence reflects, Sanchez’s

disciplinary conviction resulted in a punishment of 15 days of recreation

restriction, 45 days of commissary restriction, 15 days of cell restriction, a

reduction in classification, and the loss of 90 days of good time. None of those

consequences implicated a protected liberty interest for Sanchez. See Kimbrell

v. Cockrell, 311 F.3d 361, 362 (5th Cir. 2002); Malchi, 211 F.3d at 958-59;

Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Accordingly, Sanchez has not

shown that he was entitled to due process. See Sandin v. Conner, 515 U.S.

472, 484 (1995).

Sanchez also maintains that he was denied due process in the assistance

of his defense because his Counsel Substitute, Sandra Reed and Shelia Forte,

failed to adequately represent him during the preliminary investigation and

the disciplinary hearing. Sanchez, however, cannot maintain a § 1983 action

against Reed and Forte based on their actions as his counsel substitute. See

Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). To the extent

Sanchez contends that Reed’s and Forte’s alleged shortcomings violated TDCJ

rules, he is not entitled to relief under § 1983. See Jackson, 864 F.2d at 1251.

Also without merit is Sanchez’s claim that he was punished in excess of

established prison procedures, thereby resulting in a due process violation.

First, the nature of the complained-of action—failure to promote Sanchez to

Level 1 after 90 days had expired infraction-free in Level 2—is not in the realm

of the “atypical and significant hardship” which would give rise to a protected

liberty interest requiring any particular procedures. See Sandin, 515 U.S. at

484. Second, as stated previously, the reduction in classification and attendant

restrictions did not infringe upon any constitutionally protected liberty

interests. See Malchi, 211 F.3d at 958-59; Luken, 71 F.3d at 193.

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With regard to his claim of retaliation, Sanchez maintains that Officer

Angela Hilborn reported him for a baseless infraction because he made a

statement concerning the possible filing of a grievance against her. This claim

fails for several reasons. In his complaint, Sanchez expressly stated that his

comment to Officer Hilborn was “sarcastic.” Thus, because his threatened

grievance would have been frivolous, it could not form the basis of a retaliation

claim. See Johnson v. Rodriguez, 110 F.3d 299, 311 (5th Cir. 1997). Moreover,

Sanchez’s allegations of retaliation are conclusory and speculative and do not

give rise to any inference that Officer Hilborn’s actions were motivated by a

retaliatory intent. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

Sanchez also challenges the district court’s dismissal of his claim that

Warden Dawn Grounds and Major James Powers created an unwritten custom

and policy to punish inmates, through demotion in classification, without

notice and a hearing and to issue excessive punishment by keeping offenders

in Level 2 for over 90 days. This claim is unavailing, however, because the

purported policy does not result in any constitutional injury. See Wernecke v.

Garcia, 591 F.3d 386, 401 (5th Cir. 2009). Further, to the extent Sanchez

alleged any personal involvement by Warden Grounds or Major Powers, he

abandons these claims by failing to brief them. See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993).

In addition to the foregoing, Sanchez contends that the prison’s use of

food loaf as punishment violates due process; that “punishment” prior to any

procedural protections constituted cruel and unusual punishment, in violation

of the Eighth Amendment; and that prison officials imposed two punishments

for his disciplinary infraction, in violation of the Double Jeopardy Clause.

Sanchez raised these claims for the first time in reply to the defendants’

responsive pleadings, and the district court did not address them in granting

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No. 13-41247

the summary judgment motion. Even if the district court should have allowed

Sanchez to amend his pleadings to add these claims, he cannot show that he is

entitled to any relief. Sanchez’s placement on the food-loaf diet for seven days

does not implicate a liberty interest. See Sandin, 515 U.S. at 484; Jones, 664

F.3d at 974. As to his Eighth Amendment claim, the demotion to Level 2 and

denial of various privileges for up to 92 days does not implicate any life

necessity, and Sanchez did not allege sufficient facts about the prison officials

to show that they were deliberately indifferent. See Palmer v. Johnson, 193

F.3d 346, 352 (5th Cir. 1999). Finally, the constitutional proscription against

double jeopardy does not apply to Sanchez’s disciplinary proceeding. See Wolff

v. McDonnell, 418 U.S. 539, 556 (1974).

Sanchez does not challenge the dismissal of his claims against Captain

Shaylon Allen, Sergeant Randy McBain, and the Unit Grievance Staff.

Consequently, he abandons these claims by failing to brief them. See Yohey,

985 F.2d at 224-25.

The judgment of the district court is AFFIRMED.

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