     Case: 10-60967     Document: 00511662802         Page: 1     Date Filed: 11/10/2011




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

                                                                            FILED
                                                                        November 10, 2011

                                       No. 10-60967                        Lyle W. Cayce
                                                                                Clerk

RODNEY ARCENEAUX

                                                  Petitioner-Appellant
v.

BRUCE PEARSON, Warden
FCC-Yazoo City

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                 for the Southern District of Mississippi, Vicksburg
                                  No. 5:09-CV-86


Before JONES, Chief Judge, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Petitioner Rodney Arceneaux appeals the denial of his 28 U.S.C. § 2241
petition challenging his prison disciplinary conviction, arguing that the prison
disciplinary officer’s failure to view a surveillance tape and the prison’s failure
to provide him a staff representative violated his due process rights. We
conclude that the prison disciplinary hearing satisfied the requirements of due
process and therefore AFFIRM.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60967


                                       I.
      In 2009, Rodney Arceneaux (Arceneaux) was convicted in a prison
disciplinary hearing of assault and refusing to obey an order. In issuing his
decision, the disciplinary hearing officer (DHO) relied on a written statement
made by Officer J. Ponthieux (Ponthieux). According to Ponthieux’s statement,
on August 7, 2008, he was escorting Arceneaux back to his cell from the
recreation area when Arceneaux sat on the floor and refused to stand up. When
Ponthieux and Officer J. Johnson (Johnson) tried to lift Arceneaux, Arceneaux
laid down and began kicking and cursing at the officers. After the officers
gained control of Arceneaux and escorted him to the shower, Arceneaux kicked
Ponthieux in the groin. Johnson’s written statement confirmed Ponthieux’s
account.
      An inmate testifying on Arceneaux’s behalf at the disciplinary hearing
stated that he saw the officers holding Arceneaux by the arms and dragging him
to the shower, and that it looked like they were trying to “rough him up.”
Arceneaux testified that the officers never ordered him to stand up and that they
were trying to drag him while he was handcuffed. Arceneaux denied kicking
Ponthieux.
      The DHO also considered reports by prison medical staff, which stated
that Ponthieux reported being kicked in “a private area” and that Arceneaux
showed no signs of injury but complained of chest pain.
      Arceneaux filed a § 2241 petition, arguing that the DHO violated his due
process rights by declining to view a surveillance video of the incident despite
Arceneaux’s request that he view it. Arceneaux also asserted that he was not
informed of his right to have staff representation and to obtain and review
exculpatory evidence.



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                                        No. 10-60967

      The magistrate judge recommended dismissal of Arceneaux’s § 2241
petition, based on his determination that Arceneaux failed to show that the video
had prejudicial value. The magistrate judge further determined that Arceneaux
had no constitutional right to a staff representative and that sufficient evidence
was presented to satisfy the “some evidence” standard to support the sanctions.
      Arceneaux filed objections. The district court adopted the magistrate
judge’s report and recommendation and dismissed Arceneaux’s § 2241 petition.
                                              II.
      Because Arceneaux is proceeding under § 2241, he is not required to obtain
a COA to pursue his appeal.1 “In an appeal from the denial of habeas relief, this
court reviews a district court’s findings of fact for clear error and issues of law
de novo.”2
                                              III.
      Arceneaux contends that his due process rights were violated in a prison
disciplinary proceeding that resulted in the loss of, inter alia, fifty percent of his
accumulated good-time credits. “Prison disciplinary proceedings are not part of
a criminal prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.”3           But a state-created right to credit for good
behavior confers a liberty interest in prisoners who earn it,4 and “revocation of
such credit must comply with minimal procedural requirements.”5 In the prison
disciplinary hearing context, due process typically requires notice, an
opportunity to call witnesses and present evidence, and that “some evidence”


      1
          See Jeffers v .Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
      2
          Id.
      3
          Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
      4
          Id. at 557.
      5
          Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000).

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supports the ruling, but those requirements are flexible and must be balanced
against “legitimate penalogical interests.”6
                                               A.
       Arceneaux claims that the DHO’s failure to watch a surveillance tape of
the footage was a violation of his due process right to present documentary
evidence.       The right to present documentary evidence is not an absolute
requirement of due process in prison disciplinary hearings, it is one of a set of
flexible factors that the Supreme Court has identified as characteristic of fair
hearings. We have held prison hearings to be fair where inmates sought to
introduce surveillance video and were not permitted to do so.7 In Neal v.
Casterline, 129 Fed. App’x 113 (5th Cir. 2005), the DHO’s failure to watch
security footage did not violate the inmate’s due process rights, because still
photos from the tape tended to support the wardens’ account of the incident, and
because the inmate did not prove that the tape would have shown the inside of
his cell. This case differs from Neal in that neither still photographs from
surveillance footage nor the footage itself was available to Arceneaux. But the
Neal case illustrates the basic principle that a failure to review available
documentary evidence does not in itself render a hearing unfair.
       Arceneaux was given notice of the charges against him and had the
opportunity to call witnesses. He had ample opportunity to present his account
of the events, both through his own statement and the testimony of the inmate
he called to testify on his behalf. Furthermore, while the incident report
indicates that Arceneaux told officers to look at the video, there is no evidence



       6
           Id.; Wolff, 418 U.S. at 556.
       7
          See Neal v. Casterline, 129 Fed. App’x 113, 114 (5th Cir. 2005) (holding that the
DHO’s failure to observe a surveillance video did not violate inmate’s due process rights);
Clements v. Dobre, 273 F.3d 1107, at *1 (5th Cir. 2001) (unpublished)(holding that prison’s
failure to produce video of the incident in question did not violate inmate’s due process rights).

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that Arceneaux made any official request for the video before or during the
hearing, which he could have done when requesting his own witnesses. In fact,
there is no evidence that a surveillance video existed at the time of the hearing,
much less that such a video, if it existed, would have contained any exculpatory
evidence. The fact that the DHO did not watch surveillance footage, assuming
such footage existed, did not in itself render the hearing unfair.
                                            B.
      Arceneaux also contends that his due process rights were violated when
the prison staff failed to read him his rights before his hearing, thus depriving
him of his right to obtain a staff representative.
      An inmate does not have a constitutionally protected                     right to
representation during prison disciplinary hearings.8 Wolff held that an inmate
should be allowed to seek the assistance of a fellow inmate or staff member if the
inmate is illiterate or “the complexity of the issue makes it unlikely that the
inmate will be able to collect and present the evidence necessary for an adequate
comprehension of the case.”9 Arceneaux is not illiterate, nor does he contend to
be. The sole issue in his case was whether he disobeyed orders and kicked
Ponthieux, which was not complex. Arceneaux therefore has not shown that he
required the assistance of a fellow inmate or staff representative.
                                            IV.
      Arceneaux has not shown either that the DHO’s failure to watch a
surveillance tape rendered his hearing unfair, or that he was entitled to a
representative at the hearing. The disciplinary hearing complied with the
“minimal procedural requirements” established in Wolff, and we therefore
AFFIRM the district court’s dismissal of Arceneaux’s § 2241 petition.


      8
          Morgan v. Quarterman, 570 F.3d 663, 668 (5th Cir. 2009).
      9
          Wolff, 418 U.S. at 570.

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