     Case: 11-40298     Document: 00511612805         Page: 1     Date Filed: 09/26/2011




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

                                                                            FILED
                                                                        September 26, 2011
                                     No. 11-40298
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JED STEWART LINEBERRY,

                                                  Petitioner-Appellant

v.

FEDERAL BUREAU OF PRISONS,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:09-CV-177


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Jed Stewart Lineberry, federal prisoner # 10296-078, is appealing from the
district court’s denial of his 28 U.S.C. § 2241 habeas petition challenging
disciplinary action taken against him for the possession of anything
unauthorized. As a result of the disciplinary action, Lineberry lost 60 days of
visitation rights and his transfer to a less secure facility was suspended until he
served 180 days with clear conduct.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40298

      Lineberry argues that he was entitled to due process during the
disciplinary proceeding because he faced the potential loss of good time credits.
He asserts that the punishment imposed was atypical for the violation involved
and further contends that there was no evidence presented to support the
finding of guilt. Lineberry’s argument that due process rights were triggered
because the disciplinary action involved the potential loss of good time is without
merit. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Nor did the
suspension of his transfer to a less secure facility that may have delayed his
opportunity to earn good time credits implicate a liberty interest because the
effect of the inmate’s prison classification on his ultimate release date is too
attenuated to give rise to the protection of the Constitution. See Malchi v.
Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000).
      Because the disciplinary penalties imposed on Lineberry do not implicate
a liberty interest protected by the Due Process Clause, this court need not
address the substance of his argument challenging the sufficiency of the
evidence presented at his disciplinary proceeding.        See Kentucky Dep’t of
Corrections v. Thompson, 490 U.S. 454, 460-465 (1989).             However, the
disciplinary hearing report reflects that the hearing officer relied on a
photograph of the contraband and the written statement of the officer who
discovered the contraband in a bag that was attached to a string leading directly
to Lineberry’s cell window. This introduction of “some evidence” to support the
finding of Lineberry’s guilt was sufficient to satisfy due process concerns. See
Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985).
      Lineberry argues that he received an atypical punishment that was not
imposed on others who were similarly situated and, thus, he was denied equal
protection. Lineberry failed to make a showing that he was denied the benefit
of a fair disciplinary hearing based upon an improper discriminatory motive. See
Sonnier v. Quarterman, 476 F.3d 349, 367 (5th Cir. 2007). An equal protection
claim did not arise merely because the disciplinary action against Lineberry

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                                 No. 11-40298

resulted in an application or result that was inconsistent with the outcomes
resulting in disciplinary cases involving other inmates.      See Thompson v.
Patteson, 985 F.2d 202, 207 (5th Cir. 1993).
      Lineberry’s pleadings reflect that his cellmate and other inmates were
subject to disciplinary charges for possessing DVD players and DVDs. Although
he alleges that he was similarly situated to these other inmates because all of
the contraband was found in a common area, Lineberry’s situation differed in
that he had access to the contraband through his cell window. Lineberry failed
to state an arguable equal protection claim.
      The judgment of the district court is AFFIRMED.




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