     Case: 10-10542 Document: 00511364482 Page: 1 Date Filed: 01/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          January 28, 2011
                                     No. 10-10542
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




PETER J. MCMAHON,

                                                   Petitioner-Appellant,

versus

REBECCA TAMEZ, Warden, FCI-Fort Worth,

                                                   Respondent-Appellee.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                                  No. 4:10-CV-130




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Peter McMahon, federal prisoner # 06394-062, appeals the denial of his 28


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-10542 Document: 00511364482 Page: 2 Date Filed: 01/28/2011

                                   No. 10-10542

U.S.C. § 2241 application challenging a disciplinary determination that he had
violated prison regulations by (1) possessing “anything not authorized” (i.e., to-
bacco) and (2) refusing to obey a staff member’s order. He also moves for sanc-
tions against the state to strike its brief.
      McMahon argues that the state should be collaterally or equitably es-
topped from raising any defenses that were not presented during the administra-
tive remedy process. That argument lacks any merit.
      McMahon asserts that the unit disciplinary committee (“UDC”), which
handles moderate offenses, should not have referred his moderate offense to the
disciplinary hearing officer (“DHO”), who had the authority to impose more se-
vere punishments, such as the loss of good time credit, than did the UDC. A
prison’s violation of its own regulations, however, does not in itself constitute a
constitutional violation. Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000).
      McMahon contends that his due process rights were violated when he did
not receive copies of a prison memorandum or e-mail before or during the disci-
plinary hearing, nor did he even know of the document’s existence until after he
read the DHO’s report. Because the record indicates that McMahon was afford-
ed all the due process protections required by Wolff v. McDonnell, 418 U.S. 539,
563-66 (1974), he has not shown that the district court erred in determining that
his due process rights were not violated under Wolff. See id.; Stewart v. Thigpen,
730 F.2d 1002, 1007 n.3 (5th Cir. 1984). To the extent that McMahon also posits
that he was entitled to receive the memorandum before the disciplinary hearing
under Brady v. Maryland, 373 U.S. 83 (1963), that issue lacks merit, because he
has not shown that the memorandum was favorable to him or that there was a
reasonable probability that the result of the proceeding would have been differ-
ent had the memorandum been disclosed to him beforehand. See Lawrence v.
Lensing, 42 F.3d 255, 257 (5th Cir. 1994); United States v. Bagley, 473 U.S. 667,
682 (1985).
      McMahon maintains that the evidence was not sufficient to find him guil-

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    Case: 10-10542 Document: 00511364482 Page: 3 Date Filed: 01/28/2011

                                  No. 10-10542

ty, because (1) officers did not test the cigarette at issue to determine whether
it contained tobacco, rather than tea leaves, so that evidence was unreliable;
(2) only a photocopy of the cigarette was presented; (3) there was no physical evi-
dence of loose leaves of tobacco; (4) the DHO’s determination that McMahon was
an admitted smoker was based on the DHO’s past experience with him, rather
than any evidence presented at the hearing; (5) the DHO did not make any find-
ings concerning the issue whether McMahon’s actions met the prison regula-
tion’s requirement that the item possessed not be “issued to [the inmate] through
regular channels”; and (6) McMahon’s conduct was excused because it was the
result of side effects of Elavil, which he had taken shortly before the incident.
McMahon has not shown that the district court erred in determining that the
DHO’s finding of guilt was supported by “some evidence” and was thus not arbi-
trary or capricious. See Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994).
      AFFIRMED. ALL OUTSTANDING MOTIONS DENIED.




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