Brown v. Federal Bureau of Prisons

Filing 18

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the District Court, deny the 1 petition for writ of habeas corpus filed on July 24, 2015 on the merits. Signed by Magistrate Judge Leslie A Bowman on 12/10/2015. (See Report/Recommendation attached for details) (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robbin Shea Brown,
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Petitioner,
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vs.
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S. Lake,
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Respondent.
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No. CV 15-0328-TUC-FRZ (LAB)
REPORT AND RECOMMENDATION

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Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C.

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2241, filed on July 24, 2015. (Doc. 1) The petitioner, Robbin Shea Brown, challenges three

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separate disciplinary proceedings.

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The respondent, S. Lake, filed an answer opposing the petition on October 1, 2015.
(Doc. 13) Brown filed a reply on October 16, 2015. (Doc. 16)

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Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate

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Judge Bowman for Report and Recommendation. The petition should be denied on the merits.

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Summary of the Case

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On September 4, 2013, Brown was convicted in U.S. District Court of Possession with

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Intent to Distribute Marijuana and sentenced to a 60-month term of incarceration. (Doc. 13-3,

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p. 2) He is currently incarcerated at the Federal Correctional Institution (FCI) in Safford,

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Arizona. (Doc. 13, p. 1)

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Claim 1: Incident 2648356, Cleaning the Restroom

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On November 6, 2014, Counselor Mondragon inspected the Cholla Unit and found

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Brown asleep in bed. (Doc. 13-3, p. 20) Mondragon woke Brown and instructed him to clean

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the Cholla C/D restroom. Id. When Brown replied that he didn’t work in that bathroom,

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Mondragon explained that all orderlies are responsible for keeping the unit clean. Id. Brown

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did not clean the restroom as instructed, so Mondragon told another inmate to do the job. Id.

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Brown was charged with Refusing a Direct Order. (Doc. 13-3, p. 20) When questioned

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by the investigating officer, Brown conceded that he was awoken by staff and was told to clean

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the restroom. Id., p. 21 He maintained, however, that he found the bathroom had already been

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cleaned. Id.

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Brown later told the Unit Discipline Committee (UDC) that he did, in fact, clean the

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bathroom. (Doc. 13-3, p. 20) Moreover, he insisted that he cleaned the B and C bathrooms

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along with the C/D bathroom and that the Unit Officer saw him clean. Id.

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The Disciplinary Hearing Officer (DHO) conducted a hearing on November 24, 2014.

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(Doc. 13-3, p. 19) Brown was represented by Senior Officer J. Bigler. Id. Brown conceded

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that he was instructed to clean the restroom by Counselor Mondragon. Id. He stated he did not

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clean the restroom immediately, but he went to the Lieutenant’s office instead. Id. He insists

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he cleaned the restroom when he returned to the unit. Id.

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The DHO considered witness statements taken at Brown’s direction by his Staff

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Representative. (Doc. 13-3, p. 20) The DHO did not permit the witnesses to testify in person

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because their testimony would have been “repetitive.” Id., p. 21 Moreover, none of them said

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they saw Brown clean the restroom. Id.

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The DHO found Brown committed the prohibited act of Refusing a Direct Order based

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on Mondragon’ testimony, Brown’s inconsistent statements, and Brown’s history of poor work

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performance. (Doc. 13-3, pp. 20-21) The DHO sanctioned Brown with a loss of 14 days of

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good conduct time, among other things. Id., p. 21

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Claim 2: Incident 2712247, Insolence Toward Staff,
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On May 5, 2015, at 11:55 AM, Brown attempted to use the commissary but found it

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closed. (Doc. 13-3, p. 74) He asked Lieutenant Hendrix why it was not open because it usually

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did not close until noon. Id. Hendrix called Mr. Truelove, who was working in the

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commissary. Id. Hendrix then explained to Brown that the commissary was closed due to

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computer problems. Id. He suggested Brown come back in the evening. Id. Brown replied

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that he could not come back in the evening because he had “call-outs.” Id. Brown stated he

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wanted to talk to the Captain, but Hendrix instructed Brown to come to his office. Id. Brown

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asserted, “The computers aren’t down; they are lying.” Id. When Hendrix instructed Brown

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to lower his voice, Brown replied, “Or what?” (Doc. 13-3, p. 75) Hendrix then placed Brown

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in a holding cell “and conducted a visual search” because Brown “had what appeared to be a

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lot of items in [his] pants pockets.” Id. Hendrix told Brown he was going to place him in SHU

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(special housing unit) for making a threat towards a staff member. Id. Brown said, “You’re

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a fucking idiot and a coward.” Id.

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Brown was charged with Threatening with Bodily Harm/Insolence Towards Staff. (Doc.
13-3, p. 81) The DHO conducted a hearing on May 14, 2015. Id., p. 73

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Brown testified that he told Hendrix, “The computers aren’t down, you can hear them

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working.” (Doc. 13-3, p. 73) He said he did not remember saying Hendrix was lying, but it is

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possible he said that. Id. He conceded that when Hendrix told him to not go over his head and

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respect his answers, he told Hendrix, “Or what?” Id. Brown maintained he was agitated but

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not aggressive. Id. He testified Hendrix escorted him to a holding cell and conducted a visual

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search. Id. He stated he did not say, “You’re a fucking idiot and a coward.” Id. Instead, he

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said, “Why are you screaming and waiving your hands millimeters from my face; is it because

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you’re a bully, or a coward who is scared to hit me?” Id.

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The DHO found Brown committed the act of Insolence Towards Staff based on

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Hendrix’s testimony and the testimony of SIS (special investigation supervisors) Technicians

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Gonzales and Delgado, who both witnessed Brown say to Hendrix, “You’re a fucking idiot and

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a coward.” (Doc. 13-3, p. 76) The DHO sanctioned Brown with a loss of 14 days of good

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conduct time, among other things. Id.
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Claim 3: Incident 2719109, Religious Medallion

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On May 2, 2015, Officer J. Clifford was supervising inmate movement when he ordered

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Brown to tuck his religious medal under his shirt. (Doc. 13-3, pp. 123-124, 135) Brown

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responded, “You can’t tell me what to do, base[d] [on] your religious preference.” Id., p. 124

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Clifford stated that “it is policy for inmates to keep religious medallions under their shirts while

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not in a religious service.” Id. Later that day, Clifford gave Brown a copy of the regulation that

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explains, “All religious medallions will be worn inside the shirt except during services.” Id.,

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(citing FCI Safford’s Institutional Supplement, SAF 5360.09F)

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On May 25, 2015, Senior Officer M. Espinoza was assisting with the 4:00 PM count

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when he noticed Brown was wearing his medallion outside of his shirt. (Doc. 13-3, p. 133) He

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confiscated the medallion because Brown had been told earlier that he could not display the

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medallion outside of his shirt. Id. In fact, this was not the first time the medallion was

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confiscated because Brown had worn it over his shirt. Id.

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Brown was charged with Refusing to Obey an Order. (Doc. 13-3, p. 133) Brown told

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the investigating Lieutenant, “I just woke up for count, and did not know it was outside my

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shirt.” Id., p. 123 He told the UDC (Unit Discipline Committee) , “He never gave me an order

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and just took my necklace.” Id.

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The DHO conducted a hearing on June 26, 2015. (Doc. 13-3, p. 122) Brown submitted

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witness statements that Espinoza ordered Brown to surrender his medallion without prior

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explanation. Id., p. 123

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The DHO found Brown committed the act of Refusing to Obey an Order of a Staff

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Member. (Doc. 13-3, p. 124) He rejected Brown’s argument that he just woke up, and his

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clothing was in disarray. Id. He explained that inmates know when count time is and must be

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presentable at that time. Id. The DHO rejected the witnesses’ statements as irrelevant because

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they seem to have been submitted to prove that Espinoza did not give Brown an order just prior

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to confiscating the medallion on May 25th , and therefore Brown could not have committed the

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act of Refusing to Obey an Order. Id. In fact, the order Brown disobeyed was given to him
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earlier, on May 2nd, when Clifford first showed him the regulation that requires religious

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medallions to be worn inside the shirt except during services. Id.

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The DHO sanctioned Brown with the loss of 45 days of good conduct time, among other
things. (Doc. 13-3, p. 124)

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Procedural History

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On July 24, 2015, Brown filed in this court a petition for writ of habeas corpus pursuant

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to 28 U.S.C. 2241 challenging these three disciplinary actions. (Doc. 1) Regarding the ’356

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incident, Brown argues the evidence presented was insufficient, and the DHO improperly

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refused to admit his witnesses violating BOP rules. Id. Regarding the ’247 incident, Brown

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argues Hendrix lied and manipulated the system to place the incident before a DHO rather than

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a UDC. Id. Regarding the ’109 incident, Brown argues the rule requiring religious medallions

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to be worn under the shirt is a violation of RFRA (the Religious Freedom Restoration Act of

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1993) and RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000). Brown

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concedes he has not exhausted all of his administrative appeals. He argues, however, that this

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is because his appeals are not being adjudicated in a timely manner.

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The respondent filed an answer arguing the petition should be dismissed for failure to

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exhaust administrative remedies. (Doc. 13) In the alternative, the respondent argues all claims

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should be denied on the merits. Id.

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Brown filed a reply on October 16, 2015. (Doc. 15) The court finds that the petition

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should be denied on the merits. The court expresses no opinion on the respondent’s alternative

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arguments.

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Discussion

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“Lawful imprisonment necessarily makes unavailable many rights and privileges of the

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ordinary citizen.” Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Nevertheless, prisoners do

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retain some constitutional rights concerning the procedures for administering prison discipline.

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Id. These rights are not as extensive as those due a defendant in a criminal proceeding, but they

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are not negligible. Id.

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“Due process in a prison disciplinary hearing is satisfied if the inmate receives written

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notice of the charges, and a statement of the evidence relied on by the prison officials and the

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reasons for disciplinary action.” Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987), cert.

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denied, 487 U.S. 1207 (1988). “The inmate has a limited right to call witnesses and to present

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documentary evidence when permitting him to do so would not unduly threaten institutional

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safety and goals.” Id.

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The final decision to revoke good time credits must be based on “some evidence.”

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). “The relevant question is whether there is any

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evidence in the record that could support the conclusion reached by the disciplinary board.”

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Id. at 455-56. If so, then due process is satisfied. Id. The court need not examine the entire

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record, independently assess the credibility of the witnesses, or weigh the evidence. Id. at 455.

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Regarding incident ’356, Brown claims first that the evidence presented was insufficient

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to find he committed the prohibited act of Refusing a Direct Order. He is incorrect. The DHO

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found Brown refused an order to clean the C/D restroom based on the testimony of Mondragon,

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his inconsistent statements, and his history of poor work performance. (Doc., 13-3, pp. 20-21)

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The DHO’s decision was based on “some evidence.” That is enough.

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Brown argues there was no direct evidence presented against him, and the DHO’s

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decision was based on circumstantial evidence only. That does not matter. As long as the

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DHO’s decision was based on “some evidence,” due process was satisfied.

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Brown further argues the DHO improperly refused to allow his witnesses to testify in

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person violating BOP rules. Here, the DHO considered witness statements taken at Brown’s

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direction by his staff representative. (Doc. 13-3, p. 20) The DHO did not permit the witnesses

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to testify in person, however, because their testimony would not have been particularly relevant

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and would have been “repetitive.” Id., pp. 20, 21 Some of the witnesses heard Mondragon

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order Brown to clean the restroom. Id. Some heard Brown complain about Mondragon. Id.

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None of them saw Brown clean the restroom. Id., p. 21
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The DHO’s failure to call Brown’s witnesses to testify in person did not violate his due

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process rights. The due process right to call witnesses at a disciplinary hearing is a right

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circumscribed by the prison’s need to provide a timely and prudent disciplinary system. Ponte

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v. Real, 471 U.S. 491, 495, 105 S. Ct. 2192, 2195 (1985). Here, the DHO properly balanced

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Brown’s desire for live witnesses with the evidentiary value of the expected testimony. His

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decision to admit the witnesses statements but not the live testimony was proper.

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See Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002) (“[P]risoners do not have the right

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to call witnesses whose testimony would be irrelevant, repetitive, or unnecessary.”).

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Brown further argues the DHO’s decision violated BOP policy 5270.09(f). (Doc. 15, p.

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1); see also 28 C.F.R. § 541.8(f)(3). He states this policy only permits the exclusion of

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witnesses if they are not available, there are security concerns, or the evidence would be

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repetitive. Id. He asserts “[n]one of those factors [were] given by DHO Kane.” Id. Brown is

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incorrect. The DHO explicitly stated that the witnesses’ testimony would be “repetitive.” (Doc.

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13-3, pp. 20-21); see also Armstrong v. Warden of USP Atwater, 2011 WL 2553266, *8

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(E.D.Cal. 2011) (“A violation of a BOP regulation, without more, is not a constitutional

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violation.”). The DHO acted in accordance with BOP policy when he chose to admit the

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witnesses’ statements instead of permitting them to testify in person.

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Regarding the ’247 incident, Brown claims Hendrix lied and manipulated the system to

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place the incident before a DHO (Disciplinary Hearing Officer) rather than a UDC (Unit

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Disciplinary Committee). (Doc. 1) He further argues that if his charge remained with the UDC

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he would not have lost good time credits. Id.

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Brown’s argument is not entirely clear. All disciplinary incidents are first screened by

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the UDC. They are referred to a DHO based on the “seriousness” of the prohibited act. 28

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C.F.R. § 541.7(a)(3). Brown was charged with the acts Threatening with Bodily Harm and

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Insolence Towards Staff. (Doc. 13-3, p. 81) Threatening with Bodily Harm is a High Severity

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Act, and all High Severity Acts are automatically referred to a DHO. 28 C.F.R. §§ 541.3;

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541.7(a)(4). Insolence Toward Staff is only a Moderate Severity Act and could be adjudicated

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by the UDC. Id. The UDC cannot impose a penalty of loss of good time credits. 28 U.S.C. §

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541.7.

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Brown seems to be arguing that if Hendrix had not lied about feeling threatened, the

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incident would have been charged only as Insolence Toward Staff and would not have been

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referred to the DHO. The court does not agree with Brown’s logic. Insolence Toward Staff is

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only a Moderate Severity Act, and therefore referral to the DHO is not mandatory. 28 C.F.R.

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§§ 541.3; 541.7(a)(4). Nevertheless, referral to the DHO still could be made based on the

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seriousness of the incident. 28 C.F.R. § 541.7(a)(3). And here, Brown’s insolence was fairly

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serious. Apart from Brown’s speculation, there is nothing to indicate that things would have

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been different had the incident been charged only as “Insolence Toward Staff.”

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Brown further argues the evidence was insufficient to prove he committed the prohibited

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act “Insolence Toward Staff.” Here, the DHO found Brown committed the prohibited act based

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on the testimony of Hendrix and the SIS Technicians Gonzales and Delgado, who all witnessed

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Brown say to Hendrix, “You’re a fucking idiot and a coward.” (Doc. 13-, p. 76) There was

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“some evidence” to support the decision of the DHO. Brown’s due process rights were not

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violated.

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Regarding incident ’109, Brown argues the rule requiring him to wear his religious

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medallion inside his shirt violates RFRA, the Religious Freedom Restoration Act of 1993, and

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RLUIPA, the Religious Land Use and Institutionalized Persons Act of 2000. In response to his

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administrative appeal, the Warden explained that “[t]his is for the security, safety, and good

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order of the institution.” (Doc. 1, pp. 6, 27)

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“Congress enacted RFRA in 1993 in order to provide very broad protection for religious

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liberty.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014). RFRA provides

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that “Government shall not substantially burden a person’s exercise of religion even if the

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burden results from a rule of general applicability.” Id. at 2761. “RLUIPA essentially

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reinstitutes the demanding RFRA standard of review for intrusions on religious liberty in the

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limited contexts of prisoners and federal land.” Walker v. Beard, 789 F.3d 1125, 1134 (9th Cir.

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2015).
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RLUIPA reads in pertinent part as follows:

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No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution . . . unless the government
demonstrates that imposition of the burden on that person--

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(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc-1.

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“RLUIPA defines a religious exercise to include any exercise of religion, whether or not

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compelled by, or central to, a system of religious belief.” Walker v. Beard, 789 F.3d 1125, 1134

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(9th Cir. 2015) (punctuation modified). “The definition is intentionally broad.” Id. “It covers

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not only belief and profession but the performance of physical acts such as assembling with

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others for a worship service or participating in sacramental use of bread and wine.” Id.

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(punctuation modified).

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“To constitute a substantial burden, a limitation of religious practice must impose a

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significantly great restriction or onus upon such exercise.” Id. (punctuation modified) “A

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substantial burden need not actually force a litigant to change his practices; a violation may

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occur where the [government] denies an important benefit because of conduct mandated by

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religious belief, thereby putting substantial pressure on an adherent to modify his behavior and

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to violate his beliefs.” Id. (punctuation modified)

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Brown identifies his faith as Odinist/Asatru. (Doc. 1, p. 6) He explains he is required to

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follow the Nine Noble Virtues and wearing his Thor’s hammer medallion wards off the forces

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of chaos. Id. He asserts, “I believe if I hide my hammer, I am omitting my religion, my faith,

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may fidelity to MY GODS.” (Doc. 15, p. 4) (emphasis in original)

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FCI Safford has a rule, SAF5360.09F, stating as follows: “Each religion is authorized

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its sacred book and a religious medallion (No more than 2 inches in diameter) with chain (not

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to exceed 24 inches in length).” (Doc. 13-3, pp. 124, 140) “All religious medallions will be

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worn inside the shirt except during services.” Id. (emphasis added) It is this last requirement

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that is the crux of the case here. Assuming without deciding that the BOP’s policy substantially

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burdens Brown’s religious exercise, the court finds that policy is the “least restrictive means of

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furthering a compelling governmental interest.” Id.

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The Warden explained to Brown that the rule advances the “security, safety, and good

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order of the institution.” (Doc. 1, pp. 6, 27) Prison security is a compelling state interest for

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the purposes of RLUIPA. Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir. 2005). Allowing

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prisoners to possess religious medallions could compromise security. The possession of jewelry

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in general could encourage theft. And the possession of religious medallions could be even

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more problematic. The medallions could be used by gangs as indicia of membership. Charles

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v. Frank, 2004 WL 1303403 (7th Cir. 2004) (unpublished). Moreover, the medallions could

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trigger animosity in other prisoners who do not welcome the message they believe, rightly or

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wrongly, is conveyed by the medallion. See, e.g., Borzych v. Frank, 2005 WL 2206785, at *6

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(W.D. Wis. 2005) ([A]mong the signs that are readily recognized by inmates as associated with

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white supremacy are depictions of Thor’s hammer. . . .”).

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Forbidding all religious medallions would further the government’s interest in safety and

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security, but such a rule might not be the least restrictive means of furthering that interest.

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Accordingly, the BOP has fashioned a rule that permits inmates to possess religious medallions

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but requires them to wear their medallions inside the shirt except during services. It is the least

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restrictive means of furthering the prison’s interest in security, safety, and good order. See, e.g.,

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Charles v. Frank, 2004 WL 1303403 (7th Cir. 2004) (unpublished) (Policy that required

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Muslim prisoner to wear prayer beads under his shirt when he was not in his cell satisfied

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RLUIPA.); Jihad v. Fabian, 680 F. Supp. 2d 1021, 1027-28 (D. Minn. 2010) (“Furthermore,

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even if a substantial burden existed, the compelling interest of prison safety and security justify

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these narrowly-tailored regulations, which prohibit the display of the Kufi and medallion

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outside of an inmate’s cell, but allow an inmate to freely wear these items within his cell.”).

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order denying the petition for writ of habeas corpus filed on July 24, 2015

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on the merits. (Doc. 1)

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this Report and Recommendation. If objections are not

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timely filed, they may be deemed waived. The Local Rules permit a response to an objection.

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They do not permit a reply to a response.

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DATED this 10th day of December, 2015.

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