Jones v. Woerner

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 25, 2002
• Docket: 01-40867
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40867 Summary Calendar

REGINALD JONES,

Plaintiff-Appellant,

versus

TAWANA WOERNER; DEBORAH DENBY; MICHAEL TAVARES; RICHARD ALFORD; TRACY MCLIN; SHENANE BOSTON; CHARLES HESTER; C.A. WILLIAMSON; DAVID SWEETIN; PRISCILLA DALY; KELLI WARD; GARY JOHNSON,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:01-CV-61 -------------------- February 22, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Reginald Jones, Texas prisoner # 781143, appeals from the

district court's judgment dismissing his 42 U.S.C. § 1983 action

as frivolous. We review the district court's determination for

abuse of discretion. Harper v. Showers, 174 F.3d 716, 718 (5th

Cir. 1999)

Jones argues that Defendant Woerner filed false disciplinary

reports against him in retaliation for grievances that Jones

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40867 -2-

filed against Woerner. Jones has not addressed in his brief the

district court's holding that he is barred by the statute of

limitations from pursuing claims based on events occurring prior

to February 28, 1999, or that the instant complaint properly

concerned only the disciplinary cases filed by Woerner on

December 31, 1999, and December 28, 2000. Jones has also not

briefed his contention in the district court that the December

31, 1999, disciplinary case was retaliatory. Accordingly, these

claims are deemed abandoned. See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993). As for the December 28, 2000,

disciplinary case, which was filed nearly one year after Jones's

previous contact with Woerner, we conclude that Jones has failed

to show a chronology of events from which a retaliatory motive

may plausibly be inferred. See Woods v. Smith, 60 F.3d 1161,

1166 (5th Cir. 1995).

Jones also argues that defendants Denby, Tavares, and Alford

failed to follow proper procedure in reviewing the disciplinary

complaint and discovering Woerner's alleged retaliation. To the

extent that Jones challenges the defendants' compliance with

internal rules for conducting disciplinary proceedings, the

failure of prison administrators to follow prison rules and

regulations does not, without more, give rise to a constitutional

violation. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).

Jones next argues that his due process rights were violated

in the disciplinary hearing conducted by defendant Hester.

Because Jones seeks damages and the restoration of lost good time

credits as a result of the disciplinary hearing, he cannot assert No. 01-40867 -3-

his due process claims in a 42 U.S.C. § 1983 action unless he

first shows that the result was reversed on direct appeal,

expunged by executive order, declared invalid by an authorized

state tribunal, or called into question by a federal court's

issuance of a writ of habeas corpus under 28 U.S.C. § 2254. See

Heck v. Humphrey, 512 U.S. 477, 486 (1994); Edwards v. Balisok,

520 U.S. 641, 648 (1997). Jones has not made such a showing, and

his claims are barred by Heck and Balisok.

Jones also argues that he received inadequate assistance

from his counsel substitute. Because there is no constitutional

right to counsel in prison disciplinary hearings, Jones's claim

is without merit. See Enriquez v. Mitchell, 533 F.2d 275, 276

(5th Cir. 1976); Wainwright v. Torna, 455 U.S. 586, 587-88

(1982)(when no right to counsel exists, one cannot be deprived of

the effective assistance of counsel).

Jones further argues that defendants Williamson, Sweetin,

Daly, Ward, and Johnson denied his administrative grievances

without affording him due process or any investigation of the

matter. These claims are conclusional allegations that fail to

support a civil rights claim. See Moody v. Baker, 857 F.2d 256,

258 (5th Cir. 1988); Booker v. Koonce, 2 F.3d 114, 117 (5th Cir.

1993).

Finally, Jones contends that he was denied a fair

opportunity to present his claims at the Spears hearing because

he was not allowed to present a tape of the disciplinary hearing.

The purpose of a Spears hearing is to flesh out the substance of

the prisoner's claims, not to address the merits of the No. 01-40867 -4-

complaint. See Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir.

1990). We conclude that there was no error in the district

court's refusal to consider the disciplinary tape.

Accordingly, the district court's judgment is AFFIRMED.