NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2019 CA 1686 WILLIE DILLON

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS Judgment rendered: fAUG 0 6 2020

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C688010, Sec. 22

The Honorable Timothy Kelley, Judge Presiding

Willie Dillon #305881 In Proper Person David Wade Correctional Center Homer, Louisiana

Jonathan R. Vining Attorney for Defendant/Appellee Baton Rouge, Louisiana Louisiana Department of Public Safety and Corrections

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, I

Petitioner, Willie Dillon, an inmate in the custody of the Department of Public Safety and Corrections ( the Department), appeals a judgment of the district court dismissing his petition for judicial review of a disciplinary decision on the grounds that he failed to raise a " substantial right" violation. For the reasons that

follow, we affirm.

DISCUSSION

On June 26, 2019, while incarcerated at David Wade Correctional Center,

Dillon was charged with violating Rule # 5 ( Aggravated Disobedience). The

charges were based on an incident report in which Sgt. Johnathan Wood stated

that, while making rounds on the N213 tier, he observed Dillon yelling about the TV by his cell. He disobeyed two direct verbal orders to stop yelling. Dillon only complied after being informed he would receive a Rule Violation Report.

Dillon was placed in administrative segregation pending an investigation and disciplinary hearing. A Disciplinary Board hearing was held on June 28, 2019. He was found guilty of aggravated disobedience and sentenced to twelve weeks loss of yard privileges.

After exhausting his administrative remedies, Dillon filed a petition for judicial review in the Nineteenth Judicial District Court. The matter was then

referred to a commissioner for review pursuant to La. R. S. 15: 1188.' The

commissioner recommended that Dillon' s claim be dismissed, with prejudice, for

failure to set forth a " substantial right" violation that would authorize the court to

intervene and reverse the Department' s decision. Consequently, the commissioner

13: 711 to hear and recommend disposition of criminal and civil proceedings arising out of the La. R. S. 13: 713( A). The district judge " may accept, reject, or incarceration of state prisoners. modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions." La. R.S. 13: 713( C)( 5). stated, the court had no authority to review the claim raised based on the allegations made. Dillon filed a traversal of that recommendation. On October 15,

2019, the district court signed a judgment affirming the Department' s decision and dismissing, with prejudice, Dillon' s petition for judicial review. This appeal by Dillon followed.

We find the commissioner' s recommendation, which we adopt herein and attach as " Appendix A," provides a correct analysis of the applicable law regarding

Dillon' s claim. Accordingly, after a thorough de novo review of the record, we conclude that the district court properly dismissed Dillon' s petition for judicial review.

We issue this summary opinion in accordance with Uniform Rules - Louisiana Courts of Appeal, Rule 2- 16. 2A(2), ( 4), ( 5), and ( 10). The judgment of

the district court is hereby affirmed. No costs are assessed in this pauper suit.

AFFIRMED.

Appendix A"

COMMISSIONER' S SCREENING RECOMMENDATION

Petitioner, an inmate in the custody of the Department of Public Safety and Corrections, filed this appeal of a prison disciplinary decision in DBA # DWCC- 2019- 111. Pursuant to [ La.] R.S. 15: 1178 and [ La.] R.S. 15: 1188, this Court is

required to screen all suits by prisoners before service in order to determine whether the petition states a cause of action or cognizable claim for which relief

may be available, and also to whether it is frivolous and/ or malicious. This

screening report is issued for the Court' s de novo consideration and adjudication of the merits of the Petitioner' s claim for relief.

ANALYSIS OF THE FACTS AND LAW

The scope of this Court' s review is limited by [ La.] R.S. 15: 1177( A)(5) & 9), which states, in pertinent part, as follows:

5) The review shall be conducted by the Court without a jury and shall be confined to the record. The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level.

9) The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

a. In violation of constitutional or statutory provisions; b. In excess of the statutory authority of the Agency; c. Made upon unlawful procedure;

d]. Affected by other error of law;

e]. Arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or f. Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. ( Emphasis added).

According to the administrative record, Petitioner was found guilty of violating Prison Disciplinary Rule # 5 Aggravated Disobedience and received a penalty of twelve ( 12) weeks loss of yard privileges. 2 The record also shows that Petitioner had a hearing on the disciplinary matter and was able to appeal that decision to the Warden.3 The penalty of twelve ( 12) weeks loss of yard privileges, as here, is a valid, authorized penalty for Schedule B Rule violations under the Department' s Rules and Procedures.4 However, Petitioner' s disciplinary board decision was not appealable to the Department' s Secretary because t] he Secretary will only consider appeals from decision which resulted in the imposed or suspended sentences of one or more of the following penalties: 1) forfeiture of good time, 2) custody change from minimum to medium only if it involves transfer to another institution, 3) custody change to maximum, 4) failure to earn incentive wages, or 5) restitution.'

Since Petitioner' s penalty " is not within the specified penalties" that warrant

review, his appeal to the Secretary was rejected.' Therefore, Petitioner has not

alleged a cause of action for judicial review. He has no statutory or constitutional right to particular recreational privileges.

Under the Supreme Court' s holding in Sandin v. Conner, [ d] iscipline by prison officials in response to a wide range of misconduct falls within the expected

perimeters of the sentence imposed by a court of law, in determining whether such

does not meet the threshold requirement that would permit this court to intervene

in the authority of the prison administration to enforce discipline and security at the prison.9 In Louisiana, prison officials are accorded wide latitude in the administration of prison affairs. Only in extreme cases will courts interfere with the administration of prison regulations or disciplinary procedures."

DETERMINATION OF A SUBSTANTIAL RIGHT VIOLATION

As stated hereinabove in Subsection 9 of [La.] R.S. 15: 1177( A), this Court

may intervene and reverse and/ or modify the decision of the Agency in this matter only if substantial rights of the Petitioner have been prejudiced. In this case, based upon the penalty imposed, no substantial right has, in fact, been violated, and therefore, this Court has no authority to overturn the Department' s decision in this case.

For purposes of a Disciplinary Board Appeal, ( following the Supreme Court' s decision in Sandin v. Conner, infra), the jurisprudence holds that a

The due process clause does not protect every change in conditions of confinement which has a substantial adverse effect upon a prisoner sic].""

As long as the condition or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the due process clause does not in itself subject an inmate' s treatment by prison authorities to judicial oversight."

Whether any procedural protections are due depends on the extent to which an individual will be condemned to suffer `grievous loss'."

In the case of Sandin v. Conner, the Supreme Court sought to clarify the proper analysis to determine liberty interests and due process rights of a prisoner in a disciplinary proceeding, for which judicial intervention might apply." The Court

specifically discussed the circumstances under which a prisoner would be entitled to the protection of the due process clause in facing prison disciplinary charges.

The Sandin court held that no inmate has a constitutionally protected liberty interest in an ordinary disciplinary hearing unless he suffers some " atypical substantial hardship, [ sic]" such as a loss of good time or the involuntary administration of psychotropic drugs— which did not occur in this case. 16 The

Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593 ( 1972) at p. 2600.

Specifically, even confinement to disciplinary segregation was held not to present the type of atypical significant deprivation which a state might

conceivably create a liberty interest in."" Consequently, this penalty does not rise to the level of atypical punishment. If the punishment affects only the custody status or classification of an inmate, and not the date of eventual release, ( such as a

loss of good-time would), and is not a " dramatic departure" from expected

maximum -security prison life, due process merely requires the prisoner to be given the opportunity to give his version of the incident. He need not be

allowed to present evidence, cross- examine witnesses, etc. 19 In this case, the

Petitioner was given a hearing wherein he could state his version of events and the opportunity to appeal that decision to the Warden. Therefore, his due process

rights were satisfied.

Following the lead of the Supreme Court in Wolff v. McDonnell[,] 94 S. Ct. 2963 ( 1974) and Sandin v. Conn[ e] r, supra, the Fifth Circuit noted in the case of

Madison v. Parker, 104 F. 3d. 765 ( 5th Cir. 1997), that no liberty right is created by

a change in the quality of confinement as opposed to the quantity thereof. In the case of Clark v. Rayb[ u] rn, [ 68 F. 3d 474 ( 6th Cir. 1995),] the Sixth Circuit, in

Cir. 1988[)], citing McCrae v. Hankins, 720 F2d. 863 ( 5th Cir. 1983). However, the Supreme Court noted in Sandin that the prior due process analysis using the " mandatory language" criteria was improper and unworkable since Hewitt, and the Court sought to set out a bright line for future decisions regarding Disciplinary Board appeals.

It is difficult to see that any other deprivation in the prison context short of those that clearly impinge on the duration of confinement, will henceforth qualify for constitutional liberty status."

Even assuming the lockdowns were punitive..., they do not present a dramatic departure from the basic conditions of [his] sentence." 21 SUMMARY

In this case, the penalty imposed was twelve ( 12) weeks loss of yard privileges. The Petitioner was afforded a hearing and an appeal of the ruling to the Warden. Considering the nature of the penalty, and the fact that it does not affect the length of the Petitioner' s sentence or present any other drastic departure from expected prison life, the Petitioner fails to set forth a substantial right violation which would authorize this Court to intervene and reverse the Agency' s decision.

Consequently, this Court has no authority to review the claims raised based on the allegations made. This suit must be dismissed because it is without a basis in law

or fact. Based on my analysis herein, my formal recommendation follows.

COMMISSIONER' S SCREENING RECOMMENDATION

Having considered the entire record and the applicable law, I find that the Petitioner fails to show that the decision of the disciplinary board was arbitrary, capricious, or manifestly erroneous in violation of any of his rights. Therefore, I

recommend that the disciplinary decision be affirmed and that this appeal be dismissed with prejudice at Petitioner's costs.

22 See [ La.] R.S. 15: 1177A( 9).

Respectfully recommended, this the 24th day of September 2019, in Baton Rouge, Louisiana.