     Case: 10-40391 Document: 00511400487 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011

                                       No. 10-40391                         Lyle W. Cayce
                                                                                 Clerk

JOHN GUIDO MASCITTI, JR.,

                                                          Petitioner - Appellee

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                          Respondent - Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 2:09-cv-93


Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       The Texas Department of Criminal Justice appeals the district court’s
judgment granting habeas corpus relief to John Guido Mascitti on his claim of
a constitutionally deficient prison disciplinary proceeding.               The TDCJ was
ordered to grant him a new hearing or reinstate 180 days of good time credit that




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40391

had been taken away as discipline.           Because we conclude that Mascitti’s
procedural rights were not violated, we REVERSE and RENDER.
                          FACTUAL BACKGROUND
      Mascitti is incarcerated at a state prison in Beeville, Texas, where he has
served roughly 20 years on his 35-year sentence for burglary of a habitation. On
April 8, 2008, the TDCJ charged Mascitti with violating prison rules by
establishing an inappropriate relationship with a prison officer. The notice
stated that
      [o]n [April 7, 2008 at 2:15 p.m.], and at the Line Building, Offender
      Mascitti . . . did establish an inappropriate relationship with Officer
      Sanchez which jeopardizes or has the potential to jeopardize the
      security of the agency, or compromise the effectiveness of the
      employee by accepting free world products from Officer Sanchez.
The notice did not explain that “free world products” referred to creatine, or that
Officer Sanchez admitted smuggling creatine to Mascitti. Officer Sanchez was
terminated following the investigation. The notice also failed to state that
another inmate named Dyer told the investigating officer that he purchased
creatine from Mascitti. Finally, the date listed – April 7 – was not the correct
date of the alleged offense.
      On April 9, the disciplinary hearing occurred.          The hearing officer
considered the investigating officer’s report, which was based both on interviews
with Officer Sanchez and on Dyer’s statement that he purchased creatine from
Mascitti. Mascitti and his counsel substitute were present at the hearing, and
Mascitti testified on his own behalf. Throughout the hearing, Mascitti insisted
that he “never accepted anything” from Officer Sanchez. After considering all
the evidence, the disciplinary hearing officer found Mascitti guilty of the offense.
He assessed several minor penalties and, relevant here, the loss of 180 days of
good time credit.




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       Mascitti followed the two-step process for appealing adverse disciplinary
findings. He filed a Step One appeal with the TDCJ on June 5, 2008. He listed
five points of error, arguing that he was denied: (1) a “due process right to notice
to enable him to marshal facts and prepare a defense”; (2) a due process right to
call Officer Sanchez, who was no longer employed at the prison; (3) a
“fundamental right not to suffer adverse disciplinary [sic] absent proof of some
evidence”; (4) a “fundamental right not to have state officials make purposefully
false statements against him”; and (5) a “fundamental right for the disciplinary
hearing officer to make an independent evaluation of the credibility and
reliability of informants.” In support of his due process claim, Mascitti claimed
that, had he been informed of Dyer’s statement that Dyer purchased creatine
from Mascitti, he could have called Dyer as a witness to refute the charge. The
TDCJ denied the Step One appeal, and Mascitti filed a Step Two appeal, again
alleging that his due process rights were violated and complaining that the
TDCJ had committed procedural default by failing to reply to his Step One
complaint within 30 days. The TDCJ denied that appeal as well.
       Mascitti filed an application for a writ of habeas corpus under 28 U.S.C.
§ 2254, again citing due process violations. The TDCJ moved for summary
judgment. The magistrate judge recommended sua sponte that the court grant
summary judgment to Mascitti.1 The magistrate judge’s recommendation was
based in part on the Second Circuit’s decision in Sira v. Morton, 380 F.3d 57 (2nd
Cir. 2004). The district judge granted Mascitti summary judgment, concluding
that the TDCJ violated Mascitti’s due process rights because he was not
provided sufficient notice to enable him to prepare a defense.


       1
         A district court may grant summary judgment on its own initiative, but it must first
notify the party against whom judgment will be granted so that the party has the opportunity
to present all its evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). It is not
clear that the court notified the TDCJ in advance, but regardless, the TDCJ has not objected
to the lack of advance notice, and so we do not consider this issue.

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                                  No. 10-40391

      The TDCJ raises two points on appeal. First, it agues that Mascitti’s due
process claim was not properly exhausted in state administrative proceedings,
and that the district court therefore erred in considering it. Second, the TDCJ
argues that the district court erred substantively in determining that the notice
provided to Mascitti was constitutionally inadequate.
      We have jurisdiction under 28 U.S.C. § 2253(a).
                                 DISCUSSION
      When reviewing a grant of a habeas petition, issues of law are reviewed
de novo and findings of fact for clear error. Woodfox v. Cain, 609 F.3d 774,
788-89 (5th Cir. 2010).    In prison discipline cases, only “some evidence” is
required to comport with the requirements of due process when good time credits
are revoked. See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.
445, 455-57 (1985).      Further, given the rehabilitative nature of prison
disciplinary proceedings and the highly controlled prison setting, prison officials
are entitled to a high degree of deference. Id. at 454-56. Consequently,
      the right to call witnesses [is] a limited one, available to the inmate
      when permitting him to do so will not be unduly hazardous to
      institutional safety or correctional goals. . . . Prison officials must
      have the necessary discretion to keep the hearing within reasonable
      limits and to refuse to call witnesses that may create a risk of
      reprisal or undermine authority, as well as to limit access to other
      inmates to collect statements or to compile other documentary
      evidence.
Ponte v. Real, 471 U.S. 491, 499 (1985) (internal quotations and citations
omitted).
I.    Exhaustion of Remedies
      In finding that the TDCJ had violated Mascitti’s due process rights, the
district court first held that the TDCJ improperly failed to provide notice of
Dyer’s statement and the correct date and time of the alleged offense. This issue
was raised in the administrative proceedings and was properly before the federal


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district court. Second, the district court concluded that the TDCJ’s failure to
provide Mascitti with details on the location and parties involved in the alleged
transaction violated his due process right. The TDCJ argues that this issue was
not properly exhausted in state proceedings. We disagree.
       State prisoners must exhaust all administrative remedies before filing a
petition for a writ of habeas corpus in federal court. Baxter v. Estelle, 614 F.2d
1030, 1031-32 (5th Cir. 1980). The claims presented to the administrative body
must be the “substantial equivalent” of the claims asserted in the federal habeas
petition. Picard v. Connor, 404 U.S. 270, 278 (1971).        “For a claim to be
exhausted, the state court system must have been apprised of the facts and the
legal theory upon which the petitioner bases his assertion.”          Galtieri v.
Wainwright, 582 F.2d 348, 353 (5th Cir. 1978) (en banc). It is not enough that
the prisoner brought the same legal claim; rather, the prisoner must present the
same substance to both the state administrative body and the federal court.
Burns v. Estelle, 695 F.2d 847, 849-50 (5th Cir. 1983).
       As was noted above, Mascitti has consistently complained of insufficient
“notice to enable him to marshal facts to prepare a defense.” This claim may be
somewhat open-ended, but it plainly encompasses a lack of notice of the facts —
who, what, when, where—constituting a violation. Given the straightforward
and limited facts and procedure attending his disciplinary case, Mascitti’s claim
was sufficiently exhausted in the prison disciplinary process and raised in
substantially the same form before the district court.
II.    Due Process
       The Supreme Court’s opinion in Wolff v. McDonnell set out the minimum
due process requirements required of prison disciplinary proceedings. 418 U.S.
539, 563-64 (1974). Thus, inmates are entitled to three protections: (1) written
notice, at least twenty-four hours in advance, of the claimed violation that will
clarify the charges and give the charged party a chance to prepare a defense;

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                                  No. 10-40391

(2) a written statement of the evidence relied on and the reasons for disciplinary
action; and (3) the ability to call witnesses and present documentary evidence,
when doing so “will not be unduly hazardous to institutional safety or
correctional goals.” Id. at 564-66. However, even in the event of a constitutional
violation, a habeas petition may not be granted unless the petitioner
demonstrates that he was prejudiced by the violation. See, e.g., Hallmark v.
Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (holding that a petition must
explain “how the lack of that piece of information was prejudicial to the
preparation of his defense”); Simpson v. Ortiz, 995 F.2d 606, 609 (5th Cir. 1993).
      We need not reach whether Mascitti received constitutionally adequate
notice of the charges because Mascitti has presented no evidence that he was
prejudiced by any deficiency. First, although the wrong date of the offense was
listed on the notice, his defense was that he “never” accepted contraband from
Officer Sanchez—not that he did not engage in a prohibited transaction on
April 7 or any specific date. He also admitted having spoken to Officer Sanchez
about the free world products that could be brought into the prison. Notice of a
specific date was irrelevant, either because he already knew the date of the
offending conduct or because it was immaterial to his defense.        As for the
absence of fellow prisoner Dyer from the hearing, his testimony had no direct
bearing on the charge, i.e., that Mascitti engaged in an improper relationship
with Officer Sanchez. This case is readily distinguishable from Sira v. Morton,
380 F.3d 57 (2d Cir. 2004), on which Mascitti relies, because of the lack of
prejudice and because Mascitti received far more detail about what he was
charged with, with whom he committed the violation (Officer Sanchez), and who
“informed” on him (Dyer).




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                                 No. 10-40391

                               CONCLUSION
      Because Mascitti demonstrated no prejudice resulting from the alleged
deficiencies in his violation notice and disciplinary proceeding, we REVERSE the
grant of habeas relief and RENDER judgment for the TDCJ.
                                              REVERSED and RENDERED.




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