Pittman v. Rathman et al
MEMORANDUM OPINION. Signed by Judge James H Hancock on 9/26/2013. (JLC)
2013 Sep-26 PM 01:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
DARNELL PITTMAN, SR.,
JOHN T. RATHMAN, et al.
Case No. 1:12-cv-00046-JHH-HGD
Petitioner, Darnell Pitman, Sr., has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. He challenges the validity of a disciplinary hearing he
received while incarcerated in the Special Management Unit (SMU) at the United
States Penitentiary (USP) in Florence, Colorado. At the time he filed the § 2241
petition, he was incarcerated at the Federal Correctional Institution at Talladega,1
Petitioner alleges that his due process rights were violated because he was
denied the use of camera footage, denied a Unit Discipline Committee (UDC)
Hearing, and denied witnesses at his hearing before the Discipline Hearing Officer
(DHO). He also alleges that the DHO was not impartial because (1) petitioner’s staff
Petitioner is now housed at the USP in Lewisburg, Pennsylvania.
representative was denied access to unspecified disciplinary documents relevant to
his DHO hearing; (2) the DHO withheld the names of petitioner’s witnesses from his
staff representative; and (3) the DHO questioned petitioner’s witness outside
petitioner’s hearing and his staff representative’s presence, without petitioner’s
consent. He also contends that the DHO’s finding of guilt was not based on sufficient
evidence in the record. (Doc. 1, Petition).
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is serving a 142-month sentence followed by five years of supervised
release based on his conviction for Robbery (Carjacking), in violation of 18 U.S.C.
§ 2119. On January 27, 2011, Pittman received Incident Report (IR) 2116975 for
Threatening Another, Code 203. According to the IR, on January 25, 2011, at
approximately 7:00 p.m., Pittman called an officer to his cell and made the following
If they continued to come to my cell and disrespect me by taking the
paper off my light I will throw my feces, cum, and blood on them . . . .
I will kill one of you, it is easy enough to come out of the cuffs and kill
someone. . . . I will prevent one of you from going home to your family.
(Doc. 8-2, IR 2116975; Doc. 8-3, Decl. of DHO Esther Slater (Slater Decl.), at ¶ 4).
Pittman received a copy of the IR on January 26, 2011, at 3:00 p.m. (Id.). An
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investigation was conducted by another staff member later that day. (Id.). During the
investigation, Pittman made the following statement: “I made no threat, I gave them
examples of what could happen if they continue to disrespect inmates.” Pittman
presented no other written statements or evidence during the investigation, and he
exhibited a fair attitude. (Id.).
A hearing before the UDC was held on January 27, 2011; however, Pittman
refused to participate and became verbally aggressive. (Id.).2 Due to the serious
nature of the charges, the UDC referred the matter for a formal hearing before the
DHO. (Doc. 8-4, Notice of Discipline Hearing Before the DHO and Inmate Rights
at Discipline Hearing, dated January 27, 2011; Doc. 8-3, Slater Decl., at ¶ 5).
However, on March 21, 2011, a determination was made that Pittman was entitled to
a second UDC hearing due to an administrative error. It was determined that even if
Pittman refused the hearing, he still had a right to request a staff representative and
(Doc. 8-5, Notice of Discipline Hearing before the DHO, dated
Petitioner alleges in his petition that on January 27, 2011, he was having a conversation
with Lt. J. Dixon, when Counselor O’Niel stood by and eavesdropped on the conversation.
Petitioner further alleges that O’Niel assumed petitioner was being disruptive based on what was
being said in the conversation and left the area. Petitioner claims that O’Niel never advised that he
was there to conduct a UDC hearing and that any indication that he refused the first UDC hearing
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January 27, 2011, with note, and Advisement of Incident Report Delays, dated
March 21, 2011; Doc. 8-3, Slater Decl., at ¶ 5).
The Warden authorized the hearing to go beyond the normal time limitations.
(Id.). The second UDC hearing was held on March 25, 2011. (Doc. 8-6, Page One
of IR 2116975, dated March 23, 2011; Doc. 8-3, Slater Decl., at ¶ 5). At the hearing,
Pittman stated that he never threatened the officer. He also stated there was a camera
at his door that he wanted reviewed. At the conclusion of the hearing, the matter was
referred to the DHO. (Id.). Pittman received and signed for the Written Notice of the
DHO Hearing, and the Inmate Rights at Discipline Hearing form explaining his rights
at the DHO hearing on July 5, 2011. (Doc. 8-7, Notice of the DHO Hearing form,
Inmate Rights at Discipline Hearing form, dated March 23, 2011, Duties of Staff
Representative, dated March 23, 2011, Doc. 8-3, Slater Decl., at ¶ 5).
When petitioner was served with the Notice of DHO Hearing form on
March 23, 2011, he requested two inmate witnesses, Witness “O” and Witness “G,”
camera footage, and a staff representative. Jay O’Niel, UDC Chairman, ascertained
there was no camera recording of the incident, and he wrote a memorandum stating
such to the DHO. (Doc. 8-8, Memorandum from Jay O’Niel, UDC Chairman, to C.
Miedich, dated March 24, 2011; Doc. 8-3, Slater Decl., at ¶ 5).
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On April 22, 2011, prior to the DHO hearing, Pittman was transferred to the
SMU at FCI Talladega. The DHO hearing was subsequently held on July 14, 2011.
(Doc. 8-9, Discipline Hearing Report #2116975, dated July 14, 2011; Doc. 8-3, Slater
Decl., at ¶ 6). Pittman’s due process rights were read to and reviewed with him by
the DHO at the time of this hearing. (Id.). Pittman stated he understood his rights,
and his staff representative was present.
Both Pittman and his staff
representative stated they had spoken prior to the hearing and were ready to proceed.
Regarding Pittman’s request for camera footage, according to Jay O’Niel,
Counselor, USP Florence, no camera was used. (Id.). Regarding the request for
inmate witnesses, Pittman was advised that Witness “O” had been released from the
BOP and was no longer available. (Doc. 8-3, Slater Decl., at ¶ 6). Witness “G” was
questioned and stated that Pittman did not threaten anyone. (Id.). Pittman did not
specify what additional information Witness “O” would add or how Witness “G’s”
presence at the hearing would alter his testimony. (Id.).
Pittman provided the DHO with several documents he alleged supported his
claim that his hearings should have been conducted prior to his leaving USP
Florence. Pittman also stated he was being retaliated against for filing paperwork.
The staff representative stated Pittman could not provide the names of any other
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witnesses as he did not know their names. The DHO noted the matter was previously
returned for a re-hearing at the UDC level and staff had permission from the Warden
to conduct the UDC hearing later. (Id.).
After reviewing the evidence, the DHO concluded that Pittman had committed
the charged infraction. (Doc. 8-6, Page One of IR 2116975, dated March 23, 2011;
Doc. 8-3, Slater Decl., at ¶ 7). Slater gave the greater weight of the evidence to the
written report and the statement Pittman provided to the investigative lieutenant in
which Pittman stated he gave no threat, just gave examples of what could happen if
staff continued to disrespect inmates. Slater noted the statement to the lieutenant
could only lead the DHO to believe that Pittman made the statements as reported in
DHO Slater imposed sanctions of disciplinary segregation for 30 days,
disallowance of 27 days of good conduct time, forfeiture of non-vested good conduct
time of 27 days, and loss of phone privileges for six months to be restored on
January 13, 2012. (Id.). Slater, explaining the reasons for the sanctions to Pittman,
stated the action of any inmate to threaten staff or other inmates poses a serious threat
to the safety, and welfare of both staff and inmates and the behavior jeopardizes the
orderly running of the institution. (Id.).
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Disciplinary segregation that was imposed as punishment, and the disallowance
of good conduct time and forfeiture of non-vested good conduct time, met petitioner’s
PLRA sentence and put him on notice that should he violate the rules and regulations,
his incarceration would be prolonged. (Id.). Although loss of phone privileges was
not directly related to the act, the DHO found that Pittman’s actions warranted greater
sanctions to demonstrate the seriousness of the act. (Id.). DHO Slater advised
Pittman of his right to appeal the action within 20 calendar days under the
Administrative Remedy Procedure. (Id.). She further advised Pittman that the Report
might be delivered beyond the requisite 10 days due to the volume of hearings
conducted and her lack of clerical assistance. (Id.). Slater completed and signed the
DHO Report on July 22, 2011. (Id.). The Report was delivered to Pittman on
August 9, 2011. (Id.).
Pittman thereafter exhausted his administrative remedies by appealing the
disciplinary to the Regional and Central levels. (Doc. 8-10, Administrative Remedy
Packet 656186-A1). The disciplinary action and sanctions imposed were affirmed at
each level. (Id.).
In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974),
state inmates filed suit under § 1983 alleging several prison rules and regulations “did
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not comply with the Due Process Clause of the Fourteenth Amendment . . . .” Id. at
542-43, 94 S.Ct. at 2968. In Nebraska, a state statute created good time credits and
state prisoners could lose those good time credits if they were guilty of “serious
misconduct.” Id. at 547, 94 S.Ct. at 2970. The Supreme Court held that a prisoner
had a protected liberty interest in statutory good time credits, and thus had a
constitutional right to procedural due process in a disciplinary hearing. Id. at 555-57,
94 S.Ct. at 2974-75.
The Supreme Court in Wolff outlined the specific hearing procedures that
prison disciplinary panels must comply with to satisfy the standards of procedural due
process in the prison setting. Id. at 556, 94 S.Ct. at 2975 (“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.”). Wolff instructed that prisoners
must receive: (1) advance written notice of the charges against them; (2) an
opportunity for the inmate to call witnesses and present documentary evidence, so
long as doing so is consistent with institutional safety and correctional goals; and
(3) a written statement by the factfinder outlining the evidence relied on and the
reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. at 2978-80. Inmates do not
“have a right to either retained or appointed counsel in disciplinary hearings.” Where
an illiterate inmate is involved, however, or when the complexity of the issue makes
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it unlikely that the inmate will be able to collect and present the evidence necessary
for an adequate comprehension of the case, Wolff requires that the inmate should be
free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate
substitute aid in the form of help from the staff or from a sufficiently competent
inmate designated by the staff. Id. at 570, 94 S.Ct. at 2982.
Similarly, in Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d
356 (1985), the Supreme Court addressed the requirements of procedural due process
in the prison setting.
Inmate Hill had his good-time credits revoked after a
disciplinary board found him guilty of violating prison regulations for his
involvement in an assault on another prisoner. Id. at 448, 105 S.Ct. at 2770. His
conviction, in turn, was based on testimony by a prison guard at his disciplinary
hearing. Id. at 447, 105 S.Ct. at 2770. Hill instructed that the revocation of good
time credits only satisfies minimal standards of procedural due process if “the
findings of the prison disciplinary board are supported by some evidence in the
record.” Id. at 454, 105 S.Ct. at 2773 (emphasis added). The Supreme Court also
advised that “[a]scertaining whether this [due process] standard is satisfied does not
require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence.” Id. at 455, 105 S.Ct. at 2774. According to
the Supreme Court, “the relevant question is whether there is any evidence in the
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record that could support the conclusion reached by the disciplinary board.” Id. at
455-56, 105 S.Ct. at 2774 (emphasis added).
To the extent that petitioner challenges the imposition of the sanctions of
disciplinary segregation and loss of telephone privileges, he has not stated a claim for
a due process violation. An inmate would only be constitutionally entitled to
procedural due process if he were deprived of a protected liberty interest. See, e.g.,
Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 2302, 132 L.Ed.2d 418 (1995).
in Sandin v. Conner, the United States Supreme Court held that the touchstone of the
inquiry into whether a protected liberty interest exists is whether the conditions
“impose[ ] atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” 515 U.S. at 484, 115 S.Ct. at 2300, implicitly overruled on
other grounds by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906
(1997). An inmate contending that the conditions of confinement give rise to a
constitutionally-protected liberty interest must show that the conditions constitute an
“atypical and significant hardship” when compared to the ordinary incidents of prison
life. Wilkinson v. Austin, 545 U.S. 209, 223, 125 S.Ct. 2384, 2394, 162 L.Ed.21d 174
(2005). See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (“[T]he
Supreme Court held that a deprivation occasioned by prison conditions or a prison
regulation does not reach protected liberty interest status and require procedural due
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process protection unless it imposes an ‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’”) (quoting Sandin, 515
U.S. at 484, 115 S.Ct. at 2300). Whether confinement “conditions impose such an
atypical and significant hardship that a liberty interest exists is a legal determination.
. . .” Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997) (citing Sandin, 515 U.S.
at 485-87, 115 S.Ct. at 2301-02).
The mere confinement to disciplinary segregation and loss of telephone
privileges did not impose an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Therefore, any due process claim
with respect to those sanctions is without merit. However, the loss of good conduct
time does implicate a liberty interest and requires the procedural due process
requirements set out in Wolff.
With regard to petitioner’s claim that he did not have an impartial hearing
officer, Wolff’s requirement prohibits only officials with a direct personal or
otherwise substantial involvement in the circumstances underlying the charge from
acting as hearing officer. This includes only those such as the charging and the
investigating staff officers who were directly involved in the incident or a witness.
Because DHO Slater was not involved in the circumstances underlying the charge or
the investigation and charging, she was “impartial” as Wolff defines that term. The
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actions which petitioner alleges do not call into question her impartiality. Petitioner
does not specify what disciplinary documents were allegedly withheld from his staff
representative. The names of the witnesses requested by petitioner clearly appear on
the Notice of DHO Hearing form (Doc. 8-7); therefore, they were available to
petitioner’s staff representative.3 Further, the fact that Counselor O’Niel was on the
UDC, reported that petitioner refused his initial UDC hearing, and also reported that
there was no recording of the incident does not violate the requirement for an
impartial hearing officer.
At the DHO hearing, Pittman had a staff representative. The record does not
reflect whether the staff representative received a copy of the Incident Report before
the hearing. However, at the DHO hearing, Pittman stated that both he and his
representative were ready to proceed. Furthermore, the record does reflect that
petitioner was advised of the charges against him well in advance of the hearings on
these incidents. This is all that is required by Wolff.
In this case, the record evidence submitted by respondent reflects that the
prison officials complied with the requirements of Hill and Wolff. Pittman received
Title 28 C.F.R. § 541.14(b)(2) states, in relevant part, “[I]f the case is ultimately forwarded
to the Discipline Hearing Officer, the DHO shall give a copy of the investigation and other relevant
materials to the inmate’s staff representative for use in presentation on the inmate’s behalf.” There
is no evidence, apart from petitioner’s conclusory assertions, that his staff representative was not
provided with all materials required by this regulation.
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a detailed written notice of the charges against him, and of his rights during the
investigations and hearings. See Wolff, 418 U.S. at 563, 94 S.Ct. at 2978 (requiring
advance written notice of charges). Pittman had a staff representative for the DHO
hearing and had the opportunity to present evidence and witnesses, as stated in the
notice provided before his disciplinary hearings. See id. at 566, 94 S.Ct. at 2979
(stating that prisoners should be allowed to call witnesses and present evidence so
long as it does not interfere with institutional safety or legitimate correctional goals).
Respondent also presented evidence that Pittman received a written statement of the
findings against him and the evidence relied upon by the DHO. See id. at 563, 94
S.Ct. at 2978 (requiring that fact-finder give prisoner written notice of evidence relied
on and reasons for disciplinary action).
Petitioner received notice of the charge against him less than three days after
the incident. On March 23, 2011, he met with the UDC and was advised of his right
to have a written copy of the charges against him at least 24 hours before a hearing
before a DHO, the right to have a staff representative to assist him and the right to
call witnesses in his behalf. The fact that the original UDC hearing was not held on
January 27, 2011, for whatever reason, was not a constitutional violation.4
Title 28 C.F.R. § 541.7(c) states that the UDC will ordinarily review an incident report
within five work days after it is issued.. However, “a violation of a prison regulations in itself is not
a constitutional violation.” Edwards v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000) (citing Jackson
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Petitioner was afforded a staff representative at the DHO hearing and was
allowed to present the statement of one of his requested witnesses. That witness
stated that Pittman did not threaten anyone. Pittman stated when he received the
Notice of DHO Hearing form that his other witness also would have denied that
petitioner threatened anyone, and the Court will assume that the witness would have
testified accordingly. After the hearing, petitioner was given a written statement by
the fact-finder of the evidence relied upon and the reasons for each disciplinary
action. A review of the disciplinary shows that it was supported by some evidence
in the record.
The DHO stated that she found the greater weight of the
evidence–specifically the written disciplinary report and the statement provided by
petitioner to the investigative lieutenant in which he admitted that he did not make
a threat, only gave examples of what could happen if officers continued to disrespect
inmates–supported a finding that petitioner made threats. Bureau of Prisons (BOP)
Program Statement (PS) 5270.09 states that “[t]he phrase ‘greater weight of the
evidence’ refers to the strength of the evidence, not to its quantity or to the number
of witnesses testifying.” Therefore, the additional testimony of the witness who had
been released before the DHO hearing would not have changed the outcome of the
v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989)).
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hearing. While petitioner complains that he was not allowed to introduce a recording
of the incident at the hearing, the evidence is that no such recording was made.
According to PS 5270.09, there is no specific time limit for a DHO hearing to
be conducted after a UDC hearing, as long as the inmate receives written notice of the
DHO hearing at least 24 hours in advance. Further, if a witness requested by the
inmate is not available to appear, a written statement may be requested by the DHO
or staff representative for consideration at the hearing.
See also 28 C.F.R.
§ 541.8(f)(4). The PS and regulations also provide that, “Only the DHO may directly
question witnesses at the DHO’s hearing. Any questions by you or your staff
representative must be submitted to the DHO, who will present the question to the
witness in his/her discretion.” 28 C.F.R. § 541.8(f)(5). Therefore, any delay in the
conduct of the DHO hearing did not rise to the level of a deprivation of constitutional
due process. The same is true with respect to petitioner’s complaint that he and his
staff representative were not allowed to question witnesses directly.
Based on the foregoing, the Court finds that Pittman’s disciplinary proceeding
comported with the due process requirements of Wolff, and there was some evidence
to support the finding of guilt, as required by Hill. Therefore, the petition for writ of
habeas corpus is due to be denied.
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A separate order in conformity with this Memorandum Opinion will be entered
DONE this the
day of September, 2013.
SENIOR UNITED STATES DISTRICT JUDGE
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