*1

RECEIVED IN COURT OF CRIMINAL APPEALS AUG 262015

TO:

FAX:

FROM: Telford Unst/Trimate Records

TDCJ-CID
BARRY TELFORD UNIT
NEW BOSTON, TX

PHONE:

FAX: DATE: PAGES: (Including cover)

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*3

*4 (SEND ADDITIONAL INFORM; ON TO HOEACO1 INCLUDE ING; ENT NUMBER AS SUBJECT) PREPARED BY: LIEUTENANT aUBBY BERGT DATE: 03 / 23 / 2009 AUTHORIZED BY: WARDEN DAVID HUDSON

Sent to: EAC/INC 〈list〉 (to)

*5

ALLEGED SEXUAL ASSAULT

EAC Incident No. 1-00899-01-08 Data/Time of incident 1-18-08/unknown Specific location of incident 8 J-58 bell Type of incident that occurred Alleged sexual assault by staff

| {Victim(s) Information
Name} | TDCJ# | Race | Sex | Age | Custody | | :--: | :--: | :--: | :--: | :--: | :--: | | Finley, Jaicounis | 1354874 | B | M | 28 | G-2 | | | | | | | | | | | | | | |

Injuries? Yes $$ No. $𝐱$ if yes, explain $$ Does victim(s) have a history of prior institutional sexual assaults? Yes $$ No $$ Did medical personnel treat victim? Yes $$ No $$ if yes, date and time $$ Was a Sexual Assault Representative requested by victim? no $$ Assailant(s) Information

Does assailant(s) have a history of prior institutional sexual assaults? Yes $$ No $$ Was CIG investigator notified? Yes $$ No $$ If yes, name investigator F. Solla IF OCCURRENCE WAS RECENT: Was staff able to secure crime scene for processing by CIG?. Yes $$ No $$ Were victim and suspect(s) housed together or in close proximity? Yes $$ No $$ Has the victim or suspect(s) housing been changed? Yes $$ No $$

Captain D. Lofton Name of Person Reporting incident Lt. Y. Mozes Name of Person Notified at EAC

*6 I. FACILITY ASSIGNMENT (CHECK ONE) X A. NO RESTRICTION B. BARRIER-FREE FACILITY C. SINGLE LEVEL FACILITY D. SUITABLE FOR TRUSTEE CAMP? X YES__NO II. HOUSSING ASSIGNMENT A. BASIC HOUSSING (CHECK ONE) X 1. NO RESTRICTION 2. SINGLE CELL ONLY 3. SPECIAL HOUSSING (HOUSSING WITH LIKE MEDICAL CONDITION 4. CELL BLOCK ONLY C. ROW ASSIGNMENT (CHECK ONE) 5. NO RESTRICTION 6) 2. GROUND FLOOR ONLY B. BUNK ASSIGNMENT (CHECK ONE) $$ 1. NO RESTRICTION $$ 2. LOWER ONLY 7. SEDENTARY WORK ONLY $$ 4. FOUR HOUR WORK RESTRICTION $$ 6. EXCUSE FROM SCHOOL $$ 7. LIMITED STANDING $$ 8. NO WALKING > YARDS $$ 9. NO LIFTING > LBS. $$ 10. NO BENDING AT WAST $$ 11. NO REPETITIVE SQUATTING $$ 12. NO CLIMBING $$ 13.LIMITED SITTING $$ 14. NO REACHING OVER SHOULDER II. DISCIPIJNARY PROCESS (CHECK ONE) X A. NO RESTRICTIONS $$ B. CONSULT REP OF MENTAL HEALTH DEPT BEFORE TAKING DISCIPIJNARY ACTION $$ C. CONSULT REP OF MEDICAL DEPARTMENT BEFORE TAKING DISCIPIJNARY ACTION V. INDIVIDUALIZED TREATMENT PLAN (CHECK ALL TTHAT APPLY) X A. NO RESTRICTION $$ C. MENTAL HEALTH REPRESENTATIVE REQUIRED $$ B. MEDICAL REPRESENTATIVE REQUIRED VI. TRANSPORTATION RESTRICTIONS (CHECK ONE) X A. NO RESTRICTION $$ B. EMS AMBULANCE $$ C. WHEELCHAIR VAN $$ D. MULTI-RATIENT VEHICDE(MBO) BELCHER, S MD PRINTED NAME AND TITLE OF REVIEWER DATE SIGNATURE OF REVIEWER

*7 SUCMTO6 /SUO6/HS16 TEXAS DEPARTMENT OF CRIMINAL JUSTICE HEALTH SUMMARY FOR CLASSIFICATION 08:46:41 05/15/2009 HAME: FINLEY,JAICOURRIE DEWAYNE TDCJ#: 01354674 SID#: 05601473 UNIT: SU HOUSING: SD1-09B JOB: UMASSN MENTAL HEALTH

DOB: 07/31/1979 UGT: 201 LBS HGT: $5^{\prime }{11}^{\prime \prime }$ $|3|1|1|1|2|1|$ $|G|A|A|A|B|A|$ $|P||\mid |P|\mid$

I. FACILITY ASSIGNMENT (CHECK ONE) X A. NO RESTRICTION B. BARRIER-FREE FACILITY C. SINGLE LEVEL FACILITY D. SUITABLE FOR TRUSTEE CAMP? X YES__NO II. HOUSING ASSIGNMENT A. BASIC HOUSING (CHECK ONE) X 1. NO RESTRICTION 2. SINGLE CELL ONLY 3. SPECIAL HOUSING (HOUSING WITH LIKE MEDICAL CONDITION 4. CELL BLOCK ONLY C. ROW ASSIGNMENT (CHECK ONE) 5. H0 RESTRICTION 00 2. GROUND FLOOR ONLY D. WHEELCHAIR USE (CHECK ONE) 6. NO RESTRICTION 7. PHOP ORIGERED 8. UTILITY USE III.WORK ASSIGNMENT/RESTRICTIONS (CHECK ALL THAT APPLY) 1. MEDICALLY UNASSIGNED 2. PSYCHIATRICALLY UNASSIGHED 3. SEDENTARY WORK ONLY 4. FOUR HOUR WORK RESTRICTION 5. EXCUSE FROM SCHOOL 6. LIMITED STANDING 7. H0 LIFTING ) LBS. 10. NO BENDING AT WAST 11. NO REPETITIVE SQUATTING 00 12. NO CLIMBING 13.LIMITED SITTING 14. NO REACHING OVER SHOULDER IV. DISCIPLINARY PROCESS (CHECK ONE) X A. NO RESTRICTIONS B. CONSULT REP OF MENTAL HEALTH DEPT BEFORE TAKING DISCIPLINARY ACTION C. CONSULT REP OF MEDICAL DEPARTMENT BEFORE TAKING DISCIPLINARY ACTION V. INDIVIDUALIZED TREATMENT PLAN (CHECK ALL TTHAT APPLY) X A. NO RESTRICTION C. MENTAL HEALTH REPRESENTATIVE REQUIRED B. MEDICAL REPRESENTATIVE REQUIRED VI. TRANSPORTATION RESTRICTIONS (CHECK ONE) X A. NO RESTRICTION B. EMS AMBULANCE

C. WHEELCHAIR VAN D. MULTI-PATIENT VEHICLE(MPU)

*8

*9

*10

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

| JAICOURRIE DeWAYNE FINLEY, | § | | :--: | :--: | | | § | | Petitioner, | § | | | § | | v. | § 2:10-CV-0166 | | | § | | RICK THALER, Director, | § | | Texas Department of Criminal Justice, | § | | Correctional Institutions Division, | § | | | § | | Respondent. | § |

REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner has filed with this Court a form Petition for a Writ of Habeas Corpus by a Person in State Custody indicating he is challenging a prison disciplinary proceeding that took place at the Clements Unit in Potter County, Texas. Petitioner contends he lost 150 days of previously earned good-time credits as a result of this prison disciplinary proceeding and is eligible for mandatory supervised release.' Petitioner was incarcerated at the Clements Unit at the time he filed this habeas petition and remains incarcerated at the Clements Unit. On August 11, 2010, respondent filed a Motion to Dismiss petitioner's habeas application for failure to state a claim upon which relief may be granted. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge is of the opinion respondent's Motion to Dismiss should be GRANTED and petitioner's application

*11

for federal habeas corpus relief should be DISMISSED.

I.
PROCEDURAL BACKGROUND

Petitioner represents he was found guilty, on March 4, 2010, of the disciplinary violation of "bearing false witness" in case number 20100304FAUL. Petitioner contends his Step 1 grievance was denied March 17, 2010, and his Step 2 grievance was denied April 1, 2010. Petitioner has not replied to respondent's motion to dismiss.

II.
NO ACTUAL DISCIPLINARY CASE EXISTS

An actual controversy must exist at all stages of litigation in order for a case to be brought in federal court. Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979). If a petitioner does not challenge an actual disciplinary proceeding, the interests habeas corpus was created to serve are not implicated. See Wolff v. McDonnell, 148 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). Beyond the question of the existence of an actual case or controversy, however, there is a concern a petitioner may be abusing the writ of habeas corpus by intentionally misrepresenting material facts to a federal court in a habeas corpus petition. Even though pro se petitioners are afforded wide latitude, a court need not tolerate abuse of the litigation process by a pro se petitioner. Basing habeas corpus pleadings upon falsities constitutes such an abuse. See McCleskey v. Zant, 499 U.S. 467, 496, 111 S.Ct. 1454, 1471, 113 L.Ed.2d 517 (1991) (establishing federal habeas corpus courts need not tolerate clearly abusive habeas corpus petitions); Rose v. Lundy, 455 U.S. 509, 521 n. 13, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) ("Nothing in the traditions of habeas corpus requires the federal courts to . . . entertain collateral proceedings whose only purpose is to vex, harass, or delay.").

*12

In this case, it appears petitioner has invented the prison disciplinary case upon which his habeas corpus petition is based. First, "bearing false witness" is not an offense for which a disciplinary case can be written under TDCJ-CID policy. See Disciplinary Rules and Procedures for Offenders, published by the Texas Department of Criminal Justice, § XIV, "TDCJ Disciplinary Offenses," pgs. 23-33 (revised Jan. 2005). Second, as respondent verifies in his Motion to Dismiss, TDCJ-CID uses a purely numerical system to identify offender disciplinary actions. The number petitioner provided, 20100304FAUL, is not a valid TDCJ-CID disciplinary case number. (Respondent's Motion to Dismiss with Brief in Support, Exhibit B). Respondent additionally indicates " $[t]$ he numbers listed above are not close to any of the offender disciplinaries shown on the records of Finley, Jaicourrie Dewayne." (Id.).

By basing this habeas corpus petition upon what appears to be a fabricated prison disciplinary action, petitioner has wasted valuable resources of both the federal judiciary and the Attorney General of Texas. Because an actual case or controversy does not appear to exist, this case should be DISMISSED. See Cook, 592 F.2d at 249. Additionally, petitioner should be cautioned that any future habeas corpus petition not based on an actual disciplinary case will not be tolerated. See McCleskey, 499 U.S. at 496, 111 S.Ct. at 1474. Should petitioner continue to file meritless petitions, the Court may impose sanctions upon him which would require him to pay a monetary fee before the Court will consider any habeas corpus petition from him, or which could bar him from filing in federal court in the future.

III.
RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Motion to Dismiss filed by respondent be GRANTED and the Petition for a Writ

*13

of Habeas Corpus by a Person in State Custody filed by petitioner JAICOURRIE DEWAYNE FINLEY be DISMISSED.

IV.
INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED this 4th day of October, 2010.

* NOTICE OF RIGHT TO OBJECT*

Any party may object to these proposed findings, conclusions and recommendation. In the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is fourteen (14) days from the date of filing as indicated by the "entered" date directly above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the "entered" date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled "Objections to the Report and Recommendation." Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

*14 IN THE UNITED STATES DISTRICT COUR0 FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

JAICOURRIE DEWAYNE FINLEY, | 8 | | :-- | | | | Petitioner, | | v. | | RICK THALER, | | Director, Texas Dep't of Criminal Justice, | | Correctional Institutions Division, | | Respondent. |

| | | | :-- | :-- | | | | | | | | | | | | | | | | | | | | | | | | | | | |

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION TO DISMISS, and DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner has filed with this Court a petition for a writ of habeas corpus purportedly challenging at least one prison disciplinary case. On September 30, 2010, the United States Magistrate Judge issued a Report and Recommendation in this cause, recommending therein the petition for a writ of habeas corpus be dismissed as petitioner failed to challenge any actual prison disciplinary proceeding. As of this date, petitioner has not filed objections to the Report and Recommendation.

The undersigned United States District Judge has made an independent examination of the record in this case. The Magistrate Judge's Report and Recommendation is hereby ADOPTED. Accordingly, the Motion to Dismiss filed by respondent is GRANTED, and the petition for a writ of habeas corpus filed by petitioner is DISMISSED.

*15

IN THE UNITED STATES DISTRICT COURT 2010 OCT 22 AM 9: 57 FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION
DEPU'TY CLERK

JUDGMENT

Of equal date herewith, the undersigned United States District Judge has entered an Order adopting the Report and Recommendation issued by the United States Magistrate Judge, granting respondent's Motion to Dismiss, and dismissing petitioner's application for a federal writ of habeas corpus.

JUDGMENT IS ENTERED ACCORDINGENT ENTERED this day of 2010.

*16

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

ORDER DENYING ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Having considered the record in this case, the undersigned is of the opinion petitioner has not made a prima facie showing for issuance of a certificate of appealability under 28 U.S.C. section 2253(c)(1). Consequently, for this reason and the reasons stated in the Report and Recommendation and the Order adopting the Report and Recommendation, granting respondent's Motion to Dismiss, and dismissing the petition, a Certificate of Appealability is hereby denied.

IT IS SO ORDERED. ENTERED this day off

*17

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

| JAICOURRIE DeWAYNE FINLEY, | § | | :--: | :--: | | Petitioner, | § | | v. | § 2:10-CV-0168 | | | § | | RICK THALER, Director, | § | | Texas Department of Criminal Justice, | § | | Correctional Institutions Division, | § | | | § | | Respondent. | § |

REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner has filed with this Court a form Petition for a Writ of Habeas Corpus by a Person in State Custody indicating he is challenging a prison disciplinary proceeding that took place at the Clements Unit in Potter County, Texas. Petitioner contends he lost 120 days of previously earned good-time credits as a result of this prison disciplinary proceeding and is eligible for mandatory supervised release. ^[1] Petitioner was incarcerated at the Clements Unit at the time he filed this habeas petition and remains incarcerated at the Clements Unit. On August 11, 2010, respondent filed a Motion to Dismiss petitioner's habeas application for failure to state a claim upon which relief may be granted. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge is of the opinion respondent's Motion to Dismiss should be GRANTED and petitioner's application

*18

for federal habeas corpus relief should be DISMISSED.

I.
PROCEDURAL BACKGROUND

Petitioner represents he was found guilty, on February 18, 2010, of the disciplinary violation of "activating [the] First Amendment" in case number 20090218WALT. Petitioner contends his Step 1 grievance was denied February 26, 2010, and his Step 2 grievance was denied March 19, 2010. Petitioner has not replied to respondent's motion to dismiss.

II.
NO ACTUAL DISCIPLINARY CASE EXISTS

An actual controversy must exist at all stages of litigation in order for a case to be brought in federal court. Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979). If a petitioner does not challenge an actual disciplinary proceeding, the interests habeas corpus was created to serve are not implicated. See Wolff v. McDonnell, 148 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). Beyond the question of the existence of an actual case or controversy, however, there is a concern a petitioner may be abusing the writ of habeas corpus by intentionally misrepresenting material facts to a federal court in a habeas corpus petition. Even though pro se petitioners are afforded wide latitude, a court need not tolerate abuse of the litigation process by a pro se petitioner. Basing habeas corpus pleadings upon falsities constitutes such an abuse. See McCleskey v. Zant, 499 U.S. 467, 496, 111 S.Ct. 1454, 1471, 113 L.Ed.2d 517 (1991) (establishing federal habeas corpus courts need not tolerate clearly abusive habeas corpus petitions); Rose v. Lundy, 455 U.S. 509, 521 n. 13, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) ("Nothing in the traditions of habeas corpus requires the federal courts to . . . entertain collateral proceedings whose only purpose is to vex, harass, or delay.").

*19

In this case, it appears petitioner has invented the prison disciplinary case upon which his habeas corpus petition is based. First, "activating [the] First Amendment" is not an offense for which a disciplinary case can be written under TDCJ-CID policy. See Disciplinary Rules and Procedures for Offenders, published by the Texas Department of Criminal Justice, § XIV, "TDCJ Disciplinary Offenses," pgs. 23-33 (revised Jan. 2005). Second, as respondent verifies in his Motion to Dismiss, TDCJ-CID uses a purely numerical system to identify offender disciplinary actions. The number petitioner provided, 20090218WALT, is not a valid TDCJ-CID disciplinary case number. (Respondent's Motion to Dismiss with Brief in Support, Exhibit B). Respondent additionally indicates "[t]he numbers listed above are not close to any of the offender disciplinaries shown on the records of Finley, Jaicourrie Dewayne." (Id.).

By basing this habeas corpus petition upon what appears to be a fabricated prison disciplinary action, petitioner has wasted valuable resources of both the federal judiciary and the Attorney General of Texas. Because an actual case or controversy does not appear to exist, this case should be DISMISSED. See Cook, 592 F.2d at 249. Additionally, petitioner should be cautioned that any future habeas corpus petition not based on an actual disciplinary case will not be tolerated. See McCleskey, 499 U.S. at 496, 111 S.Ct. at 1474. Should petitioner continue to file meritless petitions, the Court may impose sanctions upon him which would require him to pay a monetary fee before the Court will consider any habeas corpus petition from him, or which could bar him from filing in federal court in the future.

III.
RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Motion to Dismiss filed by respondent be GRANTED and the Petition for a Writ

*20

| JAICOURRIE FINLEY, PRO SE, also known as | § | | :--: | :--: | | JAICOURRIE DEWAYNE FINLEY, also known as | § | | MATTHEW MacCALLISTER, TDCJ-CID No. 1354674, | § | | | § | | Plaintiff, | § | | v. | § 2:11-CV-0055 | | | § | | BRUCE ZELLER, Regional Staffer, TDCJ, | § | | | § | | Defendant. | § |

ORDER DENYING MOTION FOR STAY AND APPOINTMENT OF COUNSEL

Before the Court is plaintiff's March 29, 2012 Motion for Stay and Appointment of Counsel filed in the above-referenced and numbered cause. By this motion, plaintiff states that, as a defendant in a state court proceeding, he was found incompetent to stand trial. The Court notes that, in a nearly identical motion filed in cause no. 2:10-CV-0262 at docket no. 20, plaintiff gives the date of that determination as March 10, 2010.

On this basis, plaintiff requests a stay of all proceedings except an order to answer until he is competent. Plaintiff also requests appointment of counsel.

The Court notes an evidentiary hearing was conducted in Cause No. 2:10-CV-0227 on December 16, 2010 to consider an earlier motion for appointment of counsel. A Spears ^[1] hearing was also conducted then. Plaintiff motion for appointment of counsel was subsequently denied by separate order. Plaintiff does not indicate anything has changed since that time.

*21 Texas Department of Criminal Justice online records indicate plaintiff has been serving a 16year sentence for a theft conviction out of Harris County since August 2, 2006. Plaintiff does not identify the cause number of the alleged state court proceeding in which he was determined to be incompetent nor does he identify the court in which it was pending, the nature of the case, or whether any resolution to the case was subsequently reached. Further, plaintiff does not explain what the basis was for the state court's ruling or whether he has since received psychological or psychiatric treatment.

Plaintiff initiated the instant case on March 18, 2011, more than a year after the alleged finding of incompetency. Plaintiff offers no explanation why he did not inform the Court of this circumstance sooner.

Critically, plaintiff does not identify when, if ever, he expects to be found competent or resume prosecution of this case.

For all the reasons set forth above, plaintiff's motion for appointment of counsel and his motion for stay are DENIED.

It is SO ORDERED. Signed this the $\mathrm{D}\mathrm{A}$ day of April, 2012.

NOTES

${}^1$ Petitioner is presently incarcerated pursuant to a 2004 conviction for harassment by a person in a correctional facility out of Washington County, Texas and a 2006 conviction for theft greater than $\backslash$ 20,000 $butlessthan$ \ $100,000$ out of Harris County, Texas. Respondent's Motion to Dismiss with Brief in Support, Exhibit A. Petitioner's offense history is confirmed by the online Offender Information Detail database maintained by the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID).

${}^1$ Petitioner is presently incarcerated pursuant to a 2004 conviction for harassment by a person in a correctional facility out of Washington County, Texas and a 2006 conviction for theft greater than $\backslash$ 20,000 $butlessthan$ \ $100,000$ out of Harris County, Texas. Respondent's Motion to Dismiss with Brief in Support, Exhibit A. Petitioner's offense history is confirmed by the online Offender Information Detail database maintained by the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID).

${}^1$ Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).