Jordan v. Shartle

Filing 23

ORDER: C. Howard, Warden, is SUBSTITUTED as the sole Respondent, replacing B. Baltazar pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure; and Petitioner's Petition Und er 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1 ) is DENIED; All pending motions are DENIED AS MOOT; and the Clerk of the Court shall enter judgment and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 3/31/2021. (See attached Order for complete details)(DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Jordan,
Petitioner,

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No. CV-18-0056-TUC-BGM
ORDER

v.
C. Howard, Warden,1
Respondent.

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Currently pending before the Court is Petitioner Mark Jordan’s pro se Petition

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Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody

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(“Petition”) (Doc. 1). Respondent has filed a Return and Answer (“Answer”) (Doc. 12).

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Petitioner filed a Traverse and Reply (“Reply”) (Doc. 15). The Petition is ripe for

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adjudication.

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I.

PROCEDURAL BACKGROUND
Petitioner is currently incarcerated at the United States Penitentiary in Tucson,

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Arizona (“USP–Tucson”).

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https://www.bop.gov/inmateloc/ (last visited March 29, 2021).

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sentences for Murder in the Second Degree, and Assault. See Response (Doc. 12)

See Fed. Bureau of Prisons (“BOP”) Inmate Locater,
Petitioner is serving

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The Court takes judicial notice that J. Baltazar is no longer warden of USP–Tucson. As
such, the Court will substitute the new Complex Warden at the Federal Correctional Complex in
Tucson, Arizona, which includes USP–Tucson. Accordingly, Warden C. Howard is substituted
as the sole Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

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Mitchell Decl. (Exh. “A”), Inmate Data (Attach. “1”) at 6–7.2 Petitioner’s projected

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release

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https://www.bop.gov/inmateloc/ (last visited March 29, 2021). On February 2, 2018,

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Petitioner filed a Petitioner Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a

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Person in Federal Custody. See Petition (Doc. 1). Petitioner challenges a disciplinary

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conviction that resulted in his loss of good time credits. See id. Petitioner alleges that

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insufficient evidence, a violation of his religious freedom rights, and due process

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violations during the disciplinary process resulted in the disallowance of twenty-seven

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(27) days of good time credits. See id. Petitioner requests this Court order Respondent to

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expunge the disciplinary violations and return the twenty-seven (27) days of good time

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credits. See id.

date

is

October

20,

2047.

See

Fed.

BOP

Inmate

Locater,

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II.

FACTUAL BACKGROUND

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This matter arises from a July 10, 2010 altercation between two other prisoners.

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The Incident Report and disciplinary proceedings involving Petitioner have been the

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subject prior habeas petitions and rehearing. See Petition (Doc. 1) at 10–16; Response

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(Doc. 12) at 2. Petitioner instituted the current action on February 2, 2018. See Petition

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(Doc. 1).

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A.

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On July 10, 2010, Petitioner was housed at the United States Penitentiary in Lee

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County, Virginia (“USP–Lee”). Petition (Doc. 1) at 10. That afternoon, while watching

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a softball game on the prison yard, Jordan observed two other prisoners, Paul Weakley

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and Kenneth Mills on the ground, fighting. Id. at 10; see also Jordan v. Zych, No. 7:10-

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cv-00491, 2011 WL 2447937, at * 1 (W.D. Va. June 15, 2011). Jordan alleges that he

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observed Mills was unarmed, but Weakley had a weapon, described as a “homemade

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shank.” Petition (Doc. 1) at 10. “Jordan approached the two prisoners and placed his

July 10, 2010 Incident

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Page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page
number for ease of reference.
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foot on the knife-wielding arm and/or wrist of Weakley[.]” Id. Jordan further alleges

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that upon his intervention, “Mills and Weakley disengaged and Jordan immediately

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retreated.” Id. Jordan “remained on the prison yard for two hours following the incident

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after which time he was approached by Special Investigative Services (SIS) Technician

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B. Calton[.]” Id. SIS Tech. Calton “escorted [Jordan] from the prison yard and placed

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[him] in Administrative Detention of the Special Housing Unit.”

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cameras recorded the entire incident. Petition (Doc. 1) at 10.

Id.

Surveillance

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B.

Incident Report Number 2039042—Initial Hearing

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On July 11, 2010 at approximately 6:30 a.m., SIS Tech. Calton prepared an

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incident report regarding Jordan’s participation in the altercation. Response (Doc. 12),

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Mitchell Decl. (Exh. “A”), Incident Report No. 2039042 (Attach. “2”) (Doc. 12-4) at 56.3

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SIS Tech. Calton reported that he “reviewed Vicon video from the recreation yard, which

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was a view of the back wall near the softball bleachers.” Id. SIS Tech. Calton “observed

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Inmate Jordan . . . walk over to the location of were [sic] Inmates Weakley . . . and Mills .

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. . were having an altercation[.]” Id. SIS Tech. Calton further observed Jordan “take his

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right foot and place it on Inmate Weakley[’s] . . . arm and upper area, leaving Inmate

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Weakley . . . not able to defend his self at that time of the altercation.” Id. SIS Tech.

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Calton charged Petitioner with the prohibited act of Assaulting Any Person in violation of

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Code 101. Response (Doc. 12), Exh. “A,” Attach. “2” at 56.

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Later the same day Lieutenant R. Payne delivered the incident report to Petitioner.

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Id. at 56–57. Lt. Payne suspended the Incident Report “pending SIS/FBI referral[.]” Id.

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at 57.

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processing” by SIS Tech. P. Mines. Id. at 57. The release occurred “when the United

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States Attorney’s Office decided it would not pursue a possible criminal prosecution

On July 14, 2010, the “Incident [R]eport was released for administrative

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Attachment “2” is described as “a true and correct copy of Discipline Hearing Officer
(“DHO”) Report #2039042, and related documents, maintained in inmate Jackson’s [sic] Central
File.” Response (Doc. 12), Mitchell Decl. (Exh. “A”) at ¶ 4. There appear to be multiple copies
of SIS Tech. Calton’s original Incident Report contained within Attachment “2”. The one
referenced here is marked “Exhibit 1” and described as “Incident Report # 2039042 (First
Issuance).”
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against Jordan.” Jordan v. Zych, No. 7:10-cv-00491, 2011 WL 2447937, at *1 (W.D. Va.

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June 15, 2011). Petitioner received another copy of the incident report that same day.

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Response (Doc. 12), Mitchell Decl. (Exh. “A”), Incident Report No. 2039042 (Attach.

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“2”) (Doc. 12-4) at 57. Lieutenant M. Schreiber also investigated the incident and

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advised Petitioner of his rights. Id. Lt. Schreiber noted that Petitioner displayed a fair

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attitude, and understood his rights. Id. Petitioner did not request any witnesses. Id. Lt.

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Schreiber forwarded the Incident Report to the Unit Disciplinary Committee (“UDC”) for

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further disposition. Id.

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On July 16, 2010, the UDC conducted its hearing. Response (Doc. 12), Mitchell

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Decl. (Exh. “A”), Incident Report No. 2039042 (Attach. “2”) (Doc. 12-4) at 56. At the

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hearing, Petitioner stated that “he understood his right to remain silent[,]” and that he

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“did not assault anyone[.]” Id. The UDC referred the matter to the DHO for a further

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hearing, and if Petitioner was found guilty, recommended a loss of forty-one (41) days

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good conduct time (“GCT”) and 180 days loss of commissary privileges. Id. The UDC

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also provided Petitioner with a Notice of Discipline Hearing Before the DHO and his

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rights at that hearing. Response (Doc. 12), Mitchell Decl. (Exh. “A”), Not. of Discipline

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Hr’g Before the (DHO) (Attach. “2”) (Doc. 12-4) at 45–46 & DHO Rpt. (Attach “2”)

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(Doc. 12-4) at 59. Petitioner requested Mr. Cole as his staff representative, and Inmates

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Mills, Weakley, and Vasiliades as witnesses, for his DHO hearing. Id., Exh. “A,” Attach.

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“2” at 45.

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On August 18, 2010, Petitioner had a DHO hearing before DHO T. Trees. See

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Response (Doc. 12), Mitchell Decl. (Exh. “A”), DHO Rpt. (Attach. “2”) (Doc. 12-4) at

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59–64. DHO Trees noted that on July 16, 2010, Counselor J. Lalonde had advised

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Petitioner of his rights before the DHO. Id., Exh. “A,” Attach. “2” at 59. At the DHO

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hearing, Petitioner indicated that he understood his rights, request Mr. L. Cole as his staff

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representative at the DHO hearing, and waived his previous request for witnesses. Id.,

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Exh. “A,” Attach. “2” at 61. Petitioner reportedly stated that “[e]verything [in section 11

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of the incident report] is true[;] I walked up to Weakley because he had a knife[;] I put

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my foot on his arm wanting Mills to break away[;] [and] I wasn’t trying to assault

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anyone.” Id.

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DHO Trees relied on the written report of SIS Tech. B. Calton, who reviewed the

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recorded VICON surveillance, the memorandum of Lt. E. Allen, “who reported this

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incident ended without staff being aware of its occurrence[,]” and Petitioner’s statements

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before the DHO acknowledging that he put his foot on Weakley’s arm, in finding

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Petitioner “violated code 224, Assaulting Without Serious Injury, of the Inmate

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Discipline Policy.” Id., Exh. “A,” Attach. “2” at 62. DHO Trees noted that Petitioner

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“freely chose to intervene into what was clearly an armed confrontation, during which

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serious injuries had been inflicted.” Response (Doc. 12), Mitchell Decl. (Exh. “A”),

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DHO Rpt. (Attach. “2”) (Doc. 12-4) at 62. DHO Trees further noted that Petitioner

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“clearly demonstrated [that he] knew [his] actions and behavior to be assaultive, by both

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leaving the area to avoid identification and by failing to notify staff of [his]

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involvement.” Id. Accordingly, DHO Trees imposed sanctions totaling twenty-seven

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(27) days disallowance of GCT, fifteen (15) days disciplinary segregation (suspended for

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90 days), and loss of visiting privileges for 120 days. Id., Exh. “A,” Attach. “2” at 63.

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On August 18, 2010, DHO Trees signed the DHO report.

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C.

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Petitioner exhausted his administrative remedies and challenged the disciplinary

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conviction via a petition for writ of habeas corpus, alleging twenty (20) claims of due

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process violations and one claim under the Religious Freedom Restoration Act

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(“RFRA”). Jordan v. Zych, No. 7:10-cv-00491, 2011 WL 2447937, at *3 (W.D. Va.

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June 15, 2011). The court found that “[t]he record indicate[d] that the prison officials

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provided Jordan with all of the process he was due under the Fifth Amendment.” Id. The

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court also found that “Jordan’s claims relating to the sufficiency of the evidence relied

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upon to convict him of the minor assault charge must also fail.” Id. at *4. Additionally,

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the court dismissed Petitioner’s RFRA claim. Id. at *6. On June 29, 2011, the court

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granted Petitioner’s motion for reconsideration and vacated it June 15, 2011 opinion,

First Habeas Proceeding

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because “unbeknownst to the court, the Bureau of Prisons vacated the Disciplinary

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Hearing Officer’s original report, the subject of Jordan’s petition, and entered a revised

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report on May 4, 2011, which Jordan did not receive until May 23, 2011.” Response

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(Doc. 12), Jordan v. Zych, No. 7:10-cv-00491, Order (Doc. 33) (W.D. Va. June 29, 2011)

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(Exh. “B”) (Doc. 12-5). “Because the court based its June 15 opinion on the now-vacated

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report, and Jordan ha[d] not exhausted his administrative remedies relating to the revised

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report,” the court vacated its opinion and dismissed Jordan’s petition without prejudice.

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Id.

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D.

Second Habeas Proceeding

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Petitioner exhausted his administrative remedies as to the Amended DHO Report,

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and filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Middle

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District of Pennsylvania. Petition (Doc. 1) at 13; see also Response (Doc. 12), Jordan v.

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Bledsoe, No. 1:11-CV-1836, Order (M.D. Pa. Sept. 11, 2012) (Exh. “C”) (Doc. 12-6).

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The court ordered respondents to file a supplemental answer and gave Petitioner an

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opportunity to reply. Response (Doc. 12), Exh. “C” (Doc. 12-6) at 3. During the

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pendency of Jordan’s petition, he was transferred to the United States Penitentiary in Big

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Sandy, Kentucky. Response (Doc. 12), Mot. to Voluntarily Dismiss Without Prejudice,

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Jordan v. Bledsoe, No. 1:11-cv-01836 WWC (M.D. Pa. May 1, 2013) (Exh. “D”) (Doc.

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12-7) at 1. Petitioner noted that the “since his arrival at his new institution in Kentucky,

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the Bureau of Prisons[] ha[d] held a rehearing on the charge of assault that underlies [the

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then pending] habeas action[,] . . . and Petitioner [wa]s in the process of exhausting his

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administrative remedies with respect to the rehearing[.]” Id., Exh. “D” at 1–2. On May

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15, 2013, the court granted Petitioner’s motion and dismissed the petition without

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prejudice. Response (Doc. 12), Jordan v. Bledsoe, No. 1:CV-11-1836, Order (M.D. Pa.

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May 15, 2013) (Exh. “E”) (Doc. 12-8).

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E.

Third Habeas Proceeding

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Petitioner exhausted his administrative remedies as to the rehearing, and sought

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relief via a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petition

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(Doc. 1) at 13; see also Pet. for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a

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Person in Fed. Custody, Jordan v. Matevousian, No. 1:15-CV-01895-LJO-SKO HC

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(E.D. Cal. Dec. 21, 2015), ECF No. 1. The court dismissed Petitioner’s habeas as moot,

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because in 2016 the Bureau of Prisons again held a rehearing of the charge against

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Petitioner, and “[i]n the ensuing determination, the DHO (1) addressed Petitioner’s

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claims concerning his ability to present witnesses on his behalf and (2) more fully

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articulated the reasoning by which Petitioner’s admitted action in intervening in Mills’

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and Weakley’s fight constituted assault.” Jordan v. Matevousian No. 1:15-cv-01895-

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LJO-SKO HC, Findings and Recommendation that Court Dismiss Pet. as Moot (E.D.

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Cal. Oct. 11, 2016), ECF No. 30; see also Response (Doc. 12), Jordan v. Matevousian

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No. 1:15-cv-01895-LJO-SKO HC, Order Adopting Findings and Recommendations

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Recommending Dismissal of the Pet. for Writ of Habeas Corpus and Denial of a Cert. of

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Appealability (E.D. Cal. Jan. 17, 2017) (Exh. “F”) (Doc. 12-9).

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F.

Incident Report Number 2039042—February 2016 Rehearing

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On January 29, 2016, Lieutenant B. Pavey re-investigated the July 10, 2010

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incident report charging Petitioner with assault. Response (Doc. 12), Mitchell Decl.

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(Exh. “A”), Incident Report No. 2039042 (Attach. “2”) (Doc. 12-4) at 9–10. Lt. Pavey

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noted that “[b]ased on the information in section 11 of th[e] report, it [wa]s [his] opinion

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that the inmate [wa]s properly charged.” Id., Exh. “A,” Attach. “2” at 10. On the same

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date, Lt. Pavey delivered the Incident Report to Petitioner and advised him of his rights.

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Id., Exh. “A,” Attach. “2” at 9–10. Lt. Pavey also noted that Petitioner had a fair attitude

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and did not make any statement. Id., Exh. “A,” Attach. “2” at 10. Lt. Pavey referred the

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incident to the UDC for further disposition. Id.

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On the same date, the UDC conducted its hearing. Response (Doc. 12), Mitchell

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Decl. (Exh. “A”), Incident Report No. 2039042 (Attach. “2”) (Doc. 12-4) at 9. Petitioner

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stated that he “did not assault anyone.” Id. The UDC referred the matter to the DHO for

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further hearing, and if Petitioner was found guilty, recommended any and all appropriate

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sanctions. Id. The UDC also provided Petitioner with a Notice of Discipline Hearing

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Before the (DHO) and his rights at that hearing. Response (Doc. 12), Exh. “A,” Attach.

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“2” at 11–13. Petitioner indicated that he wished to have R. Boudreau as his staff

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representative at his DHO hearing, as well as Inmate Weakley as a witness. Id., Exh.

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“A,” Attach. “2” at 13. Petitioner refused to sign the form BP-294 Notice of Discipline

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Hearing Before the (DHO), because Counselor J. Isho did not put Inmate Mills on

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Petitioner’s witness list, as Inmate Mills was deceased. Id., Exh. “A,” Counselor Isho

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Memo to DHO Liwag 1/29/2016 (Attach. “2”) (Doc. 12-4) at 14; see also Response

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(Doc. 12), Exh. “A,” Not. of Discipline Hr’g Before the (DHO) (Attach. “2”) (Doc. 12-4)

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at 13.

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On February 3, 2016, Petitioner had a DHO hearing before DHO C. Liwag, which

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was postponed so that Petitioner could add Inmate Vasiliades as an additional witness.

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Response (Doc. 12), Mitchell Decl. (Exh. “A”), DHO Rpt. 2/10/2016 (Attach. “2”) (Doc.

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12-4) at 2 & Not. of Discipline Hr’g Before the (DHO) (Attach. “2”) (Doc. 12-4) at 13.

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On February 10, 2016, “the disciplinary rehearing reconvened and all parties were ready

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to proceed as the Staff Representative assisted in obtaining inmate VASILIADES’

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witness statement.”

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2/10/2016 (Attach. “2”) (Doc. 12-4) at 2 (emphasis in original). At the hearing, “[t]he

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DHO confirmed with the inmate that he received a copy of his incident report, DID want

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to call inmate witnesses[], DID want a staff representative and had documentary evidence

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to submit.” Id. (emphasis in original). Petitioner indicated that he understood those

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rights and was prepared to proceed.

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conference, as well as provided a signed written statement, and Inmate Vasiliades

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submitted a written statement answering questions Petitioner had posed. Id. Correctional

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Counselor R. Boudreau appeared as Petitioner’s staff representative. Id.

Response (Doc. 12), Mitchell Decl. (Exh. “A”), DHO Rpt.

Id.

Inmate Weakley appeared via telephone

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DHO Liwag reviewed SIS Tech. Calton’s written report. Response (Doc. 12),

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Mitchell Decl. (Exh. “A”), DHO Rpt. 2/10/2016 (Attach. “2”) (Doc. 12-4) at 2. The

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video of the altercation was presented as evidence at the rehearing. Id., Exh. “A,” Attach.

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“2” at 3. DHO Liwag described the video showing:

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[I]nmates WEAKLEY . . . and MILLS . . . having a physical altercation in a
recreation yard. As MILLS is on top of WEAKLEY, JORDAN walks over
and places his foot on WEAKLEY’S left hand/left arm while MILLS is on
top of WEAKLEY. Inmate JORDAN leaves inmate WEAKLEY with one
hand to defend himself against inmate MILLS. Moments later, inmate
MILLS and inmate WEAKLEY disengage in the physical altercation.

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Id. DHO Liwag reported that during the rehearing Petitioner stated, “I intervened to

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break up the incident. I did put my foot on Weakley’s hand to break it up. I also have a

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written statement. Thank you for giving me a fair shot. I got all my evidence in.” Id.

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Petitioner’s staff representative confirmed that “[t]he video did show he (JORDAN) did

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put his foot on his (WEAKLEY’S) arm/hand[.]” Id. (emphasis in original).

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DHO Liwag also reviewed the written documentary evidence submitted by

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Petitioner, including Petitioner’s statement of facts, questions to inmate Vasiliades, and

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prior written statements from inmates Weakley and Vasiliades. Response (Doc. 12),

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Mitchell Decl. (Exh. “A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 3. “Inmate

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Jordan asserts that inmate MILLS who is deceased would testify that JORDAN’s

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touching of inmate Weakley was merely ‘incidental’ and ‘not intentional.’” Id. (internal

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quotations omitted) (emphasis in original). Petitioner also asserted that “both his prior

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Staff Representatives (H. Chance and L. Cole) stated, “I reviewed the video and it is

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consistent with Jordan’s statement.”

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statements as follows:

Id.

DHO Liwag described Petitioner’s prior

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During the 10-9-12 DHO rehearing you stated, “Everything is True. I
walked up to WEAKLEY because he had a knife. I put my foot on his arm,
wanting MILLS to break away. I wasn’t trying to assault anyone, I was just
trying to breakup the fight.” Upon review during the 8-18-2010 DHO
hearing you essentially said the same thing to T. Trees, DHO, USP Lee. As
such, the DHO deemed these statements to be consistent with your
statements during the rehearing at USP Atwater which were, “I intervened
to break up the incident. I did put my foot on Weakley’s hand to break it
up.”

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Response (Doc. 12), Exh. “A,” Attach. “2” at 3 (emphasis in original). DHO Liwag also

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considered the written statement of Inmate Vasiliades, as well as his prior statement. Id.

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In both statements, Vasiliades noted that Petitioner had intervened to stop a fight between

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two other prisoners, and opined that Petitioner did not assault either prisoner. Id. DHO

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Liwag also reviewed Inmate Weakley’s written statement, his answers to questions

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during the rehearing, as well as a November 8, 2010 written statement. Id. DHO Liwag

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described Inmate Weakley’s statements and testimony as follows:

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In the written statement, WEAKLEY states, “I was attacked by an inmate
with a knife, who was trying to murder me for no good reason. A friend of
mine, Mark Jordan, attempted to help me escape this attack by getting in
between me and this attacker. If it wasn’t for Mr. Jordan’s help, I may have
been dead.” JORDAN also handed the DHO a list of proposed questions
for WEAKLEY. The DHO read these questions to WEAKLEY during the
telephone conference.
In summarizing the witness questions for
WEAKLEY, inmate WEAKLEY states that JORDAN’S touching of him
was not “unwanted” and he was gracious for JORDAN’S interference.
JORDAN also presented a written declaration from Inmate WEAKLEY
dated 11/8/2010.
This declaration was presented in response to
JORDAN’S Secure Management Unit (SMU) referral, which occurred after
the incident. In the declaration, Inmate WEAKLEY also states that he
believes that JORDAN’S interference of the altercation between him and
MILLS was not an assault. WEAKLEY states that JORDAN only placed
his foot on his arm, which prevented him from stabbing MILLS. . . . [I]n
the 11/8/2010 statement, section (4) WEAKLEY states, “I did not know
prisoners Mills or Jordan prior to the 7/10/2010 incident.” In the 1/26/16
statement Inmate WEAKLEY states, “A friend of mine Mark Jordan
attempted to help me escape this attack by getting between me and the
attacker.”
Response (Doc. 12), Exh. “A,” Attach. “2” at 3–4 (emphasis in original).

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DHO Liwag considered the written and verbal statements of Inmate Jordan, the

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written and verbal statements of Inmate Weakley, Inmate Vasiliades’s written statements,

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and prior Staff Representative statements, as well as the written reports, supporting

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memoranda, and the video of the incident. Response (Doc. 12), Mitchell Decl. (“Exh.

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“A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 4.

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“essentially all parties state and agree that JORDAN stepped on Weakley’s hand or

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arm[.] Id. DHO Liwag further observed that “ultimately, JORDAN’S stepping of [sic]

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Inmate WEAKLEY’S arm/hand is by definition an assault (unwanted touching of

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DHO Liwag observed

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another).” Id. (emphasis in original). DHO Liwag disagreed with Petitioner’s contention

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that his conduct was “incidental contact,” stating, “[I]t is clear on the video that inmate

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JORDAN ‘freely’ goes over to inmate WEAKLEY and placed his foot on WEAKLEY’s

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left hand/arm.” Id. (emphasis in original). DHO Liwag further opined that “[d]espite

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JORDAN’S intentions and WEAKLEY’S gratitude, the DHO believes JORDAN had no

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right to step in and physically break up an altercation between two inmates[,] . . . [and]

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this could have resulted in MILLS having an advantage against WEAKLEY and the

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incident could have resulted in more serious injuries or death for inmate WEAKLEY. Id.

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(emphasis in original).

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DHO Liwag deemed Inmate Weakley’s testimony less credible, finding that his

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written statements conflicted. Response (Doc. 12), Mitchell Decl. (Exh. “A”), DHO Rpt.

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2/18/2016 Attach. “2” at 4. DHO Liwag also “considered JORDAN’S stat[e]ments,

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inmate witnesses’ and staffs[’] exculpatory statements, but still deemed [Petitioner’s]

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interference to be an assault on Inmate WEAKLEY.” Id. “Based on the greater weight

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of evidence (the officer’s written report, the supporting memo, the video and the

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statements of the Inmate, the inmate witnesses statements & the staff representative

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review of the video),” DHO Liwag found that Petitioner committed the prohibited act of

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Assaulting Any Person (without serious injuries), in violation of Code 224. Id. DHO

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Liwag imposed the previously served sanctions totaling twenty-seven (27) days

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disallowance of GCT, fifteen (15) days disciplinary segregation (suspended for ninety

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(90) days with clear conduct), and 120 days loss of visiting privileges. Id. On February

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18, 2016, DHO Liwag signed the DHO report and delivered it to Petitioner via

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institutional mail on the same date. Response (Doc. 12), Exh. “A,” Attach. “2” at 5.

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G.

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On February 2, 2018, Petitioner filed his Petition (Doc. 1) challenging the

26

February 10, 2016 re-hearing. Petitioner asserts six (6) grounds for relief, alleging his

27

disciplinary conviction was obtained in violation of 1) “28 C.F.R. §541.8(f) as the DHO

28

decision that Jordan committed an assault, that Jordan’s touching of Weakley was

The Instant Habeas

- 11 -

1

‘unwanted,’ is not supported by the greater weight of the evidence”; 2) “28 C.F.R. §

2

541.8(f) as the DHO refused to recieve [sic] into evidence and consider Jordan’s

3

proffered documentary evidence in the form of written statements of inmate witnesses

4

prepared in 2010 and collected by his previous staff representative, Lance Cole”; 3) “his

5

religious freedom rights protected by statute, 42 U.S.C. §§2000bb-cc, in that it

6

substantially burdens Jordan’s religious exercise, . . . while failing to further a compelling

7

government interest by the least restrictive means”; 4) “his due process rights as the DHO

8

decision that Jordan committed an assault, the unwanted touching of Weakley, is not

9

supported by any evidence”; 5) “his due process rights to present witnesses and

10

documentary evidence in that the DHO refused to recieve [sic] into evidence and

11

consider Jordan’s documentary evidence in the form of written statements collected from

12

inmate witnesses in 2010 by Jordan’s previous staff representative, Lance Cole”; and 6)

13

“his due process rights to be heard at a meaningful time by virtue of the undue delay

14

between the underlying incident on July 10, 2010 and the February 10, 2016 rehearing,

15

prejudicing Jordan’s ability to defend against the charge by depriving him of favorable

16

evidence and witnesses, specifically, the testimony of witness Kenneth Mills, whose

17

testimony was otherwise available were the hearing properly held in a reasonable manner

18

and at a meaningful time.” Petition (Doc. 1) at 17–18.

19
20

III.

ANALYSIS

21

A.

22

“Federal courts are always ‘under an independent obligation to examine their own

23

jurisdiction,’ . . . and a federal court may not entertain an action over which it has no

24

jurisdiction.”

25

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Habeas corpus proceedings

26

are the proper mechanism for a prisoner to challenge the ‘legality or duration’ of

27

confinement.” Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v.

28

Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833, 36 L. Ed. 2d 439 (1973)).

Jurisdiction—In General

Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting

- 12 -

1

“Generally, motions to contest the legality of a sentence must be filed under § 2255 in the

2

sentencing court, while petitions that challenge the manner, location, or conditions of a

3

sentence’s execution must be brought pursuant to § 2241 in the custodial court.”

4

Hernandez, 204 F.3d at 864. Therefore, before proceeding to any other issue a court

5

must establish whether a habeas petition is filed pursuant to § 2241 or § 2255 to

6

determine whether jurisdiction is proper. Id. at 865.

7

Here, Petitioner does not claim that the sentencing court imposed an illegal

8

sentence; rather he seeks relief with respect to disciplinary proceedings while

9

incarcerated at a federal facility. As such, Petitioner is challenging the manner, location,

10

or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d

11

349 (1st Cir. 1999) (Section 2241 petition is appropriate vehicle to challenge the

12

correctness of a jail-time credit determination, once administrative remedies have been

13

exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc),

14

(“[c]hallenges to the validity of any confinement or to the particulars affecting its

15

duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S.

16

749, 750, 124 S. Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v. Carlson, 925 F.2d 330, 332

17

(9th Cir. 1991) (a prisoner’s challenge to the “manner in which his sentence was executed

18

. . . [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. §

19

2241”). Such a challenge must be brought pursuant to § 2241 in the custodial court. At

20

the time of filing the Petition, Petitioner was incarcerated at USP – Tucson in Arizona.

21

Accordingly, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353

22

(9th Cir. 1990).

23

B.

24

Exhaustion
1. In General

25

The Ninth Circuit Court of Appeals has stated:

26

[28 U.S.C. § 2241] does not specifically require petitioners to exhaust
direct appeals before filing petitions for habeas corpus. [Footnote omitted.]
However, we require, as a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking relief under §

27
28

- 13 -

1

2241.

2

Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds

3

by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct. 2422, 165 L. Ed. 2d 323

4

(2006). “The requirement that federal prisoners exhaust administrative remedies before

5

filing a habeas corpus petition was judicially created; it is not a statutory requirement.”

6

Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno

7

v. Koray, 515 U.S. 50, 54–55, 115 S. Ct. 2021, 2023–24, 132 L. Ed. 2d 46 (1995).

8

“Nevertheless, ‘[p]rudential limits like jurisdictional limits and limits on venue, are

9

ordinarily not optional.’” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (alterations

10

in original) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001),

11

abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S. Ct.

12

2422, 165 L.Ed.2d 323 (2006)).

13

“Courts may require prudential exhaustion if ‘(1) agency expertise makes agency

14

consideration necessary to generate a proper record and reach a proper decision; (2)

15

relaxation of the requirement would encourage the deliberate bypass of the administrative

16

scheme; and (3) administrative review is likely to allow the agency to correct its own

17

mistakes and to preclude the need for judicial review.’” Id. (quoting Noriega-Lopez v.

18

Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does not exhaust

19

administrative remedies, a district court ordinarily should either dismiss the petition

20

without prejudice or stay the proceedings until the petitioner has exhausted remedies,

21

unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir.

22

2011) (citations omitted). Exhaustion may be excused if pursuing an administrative

23

remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th

24

Cir. 1993).

25

If a prisoner is unable to obtain an administrative remedy because of his failure to

26

appeal in a timely manner, then the petitioner has procedurally defaulted his habeas

27

corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis,

28

Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570,

- 14 -

1

571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the

2

petitioner to demonstrate cause for the procedural default and actual prejudice from the

3

alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause

4

and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106 S.

5

Ct. 2639, 2647–48, 91 L. Ed. 2d 397 (1986) (cause and prejudice test applied to

6

procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905,

7

906–08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).

8

2. BOP Administrative Procedures

9

The BOP has established an administrative remedy process permitting an inmate

10

to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R.

11

§ 542.10(a). Under that process, an inmate seeking to appeal a DHO decision shall

12

submit the appeal “initially to the Regional Director for the region where the inmate is

13

currently located.” 28 C.F.R. § 542.14(d)(2). “An inmate who is not satisfied with the

14

Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to

15

the General Counsel within 30 calendar days of the date the Regional Director signed the

16

response.” 28 C.F.R. § 542.15(a). The deadlines contained within this process may be

17

extended upon request by the inmate and a showing of a valid reason for delay. 28

18

C.F.R. § 542.15(a); 28 C.F.R. § 542.14(b). An appeal is considered filed on the date it is

19

logged in the Administrative Remedy Index as received. 28 C.F.R. § 542.18. Once an

20

appeal is filed, a Regional Director shall respond within 30 days; General Counsel shall

21

respond within 40 calendar days. Id. “If the inmate does not receive a response within

22

the time allotted for reply, including extension, the inmate may consider the absence of a

23

response to be a denial at that level.” Id.

24

3. Exhaustion in the Instant Case

25

Here, Respondent did not comment regarding Petitioner’s exhaustion of his

26

administrative remedies and the record does not contain any information regarding

27

Petitioner’s administrative appeal of the February 10, 2016 disciplinary rehearing. The

28

Ninth Circuit Court of Appeals, however, has recognized that:

- 15 -

1
2
3
4

[T]he requirement of exhaustion of remedies [is to] aid judicial review by
allowing the appropriate development of a factual record in an expert
forum; conserve the court’s time because of the possibility that the relief
applied for may be granted at the administrative level; and allow the
administrative agency an opportunity to correct errors occurring in the
course of administrative proceedings.

5
6

Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). In this case, the factual record is

7

adequately developed, and nothing in the record suggests that further administrative

8

review would result in any changes. Accordingly, the Court finds the Petitioner’s claims

9

exhausted; however, even if the exhaustion is faulty, it shall be excused and the Court

10

will reach the merits.

11

C.

12

Petitioner asserts due process violations arising from the February 10, 2016

13

disciplinary rehearing, including 1) the DHO’s decision that Petitioner “committed an

14

assault, the unwanted touching of Weakley, is not supported by any evidence”; 2) the

15

DHO’s refusal to receive written inmate witness statements collected by Petitioner’s

16

previous staff representative, L. Cole; and 3) the undue delay between the underlying

17

incident and the rehearing. Petition (Doc. 1) at 17–18.

18

Due Process (Grounds Four through Six)

1. Legal Standard

19

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

20

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

21

officials and the reasons for disciplinary action.” Zimmerlee v. Keeny, 831 F.2d 183, 186

22

(9th Cir. 1987) (citing Wolff v. McDonnell, 418 U.S. 539, 563–66, 94 S. Ct. 2963, 2978–

23

79, 41 L. Ed. 2d 935 (1974)). Additionally, “[t]he inmate has a limited right to call

24

witnesses and to present documentary evidence when permitting him to do so would not

25

unduly threaten institutional safety and goals.”

26

illiterate inmate is involved . . . [or] the complexity of the issue makes it unlikely that the

27

inmate will be able to collect and present the evidence necessary for an adequate

28

comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that

- 16 -

Id. (citations omitted).

“Where an

1

is forbidden to have adequate substitute aid in the form of help from the staff or from a

2

sufficiently competent inmate designated by the staff.” Wolff, 418 U.S. at 570, 94 S. Ct.

3

at 2981. Finally, inmates have a right to an impartial decision maker. Id. at 571, 94 S.

4

Ct. at 2982. “Prison disciplinary proceedings[, however,] are not part of a criminal

5

prosecution, and the full panoply of rights due a defendant in such proceedings do[] not

6

apply.” Wolff, 418 U.S. at 556, 94 S. Ct. at 2975.

7

Once the minimal procedural requirements of Wolff are met, the district court must

8

ask “whether there is any evidence in the record that could support the conclusion

9

reached by the disciplinary board.” Superintendent, Mass. Corrections Inst. v. Hill, 472

10

U.S. 445, 455–56, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985). “[T]he requirements

11

of due process are satisfied if some evidence supports the decision by the prison

12

disciplinary board to revoke good time credits.” Id. “Ascertaining whether this standard

13

is satisfied does not require examination of the entire record, independent assessment of

14

the credibility of witnesses, or weighing of the evidence.” Id. Indeed, “[t]he standard is

15

‘minimally stringent’ only requiring ‘any evidence in the record that could support the

16

conclusion reached by the disciplinary board.’” Cato v. Rushen, 824 F.2d 703, 705 (9th

17

Cir. 1987) (citing Hill, 472 U.S. at 454–56, 105 S. Ct. at 2774) (emphasis added in Cato).

18
19

2. Petitioner’s Disciplinary Proceedings
a. Ground Four: Finding that Petitioner committed an assault

20

Petitioner asserts that his due process rights were violated when the DHO found

21

him guilty of assault. Petition (Doc. 1) at 7, 17. Petitioner argues that his conviction “is

22

not supported by evidence that Jordan’s touching of Weakley was ‘unwanted.’” Id. at 7.

23

The record before the Court indicates that Petitioner received written notice of the

24

charges; had the opportunity to call witnesses and present documentary evidence; had a

25

staff representative; received a statement of the evidence relied on by the prison officials;

26

and the reasons for disciplinary actions. See Response (Doc. 12), Mitchell Decl. (Exh.

27

“A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 1–5. DHO Liwag considered the

28

written and verbal statements of Inmate Jordan, the written and verbal statements of

- 17 -

1

Inmate Weakley, Inmate Vasiliades’s written statements, and prior Staff Representative

2

statements, as well as the written reports, supporting memoranda, and the video of the

3

incident.

4

“essentially all parties state and agree that JORDAN stepped on Weakley’s hand or

5

arm[.] Id. DHO Liwag further observed that “ultimately, JORDAN’S stepping of [sic]

6

Inmate WEAKLEY’S arm/hand is by definition an assault (unwanted touching of

7

another).” Id. (emphasis in original). DHO Liwag disagreed with Petitioner’s contention

8

that his conduct was “incidental contact,” stating, “[I]t is clear on the video that inmate

9

JORDAN ‘freely’ goes over to inmate WEAKLEY and placed his foot on WEAKLEY’s

10

left hand/arm.” Id. (emphasis in original). DHO Liwag further opined that “[d]espite

11

JORDAN’S intentions and WEAKLEY’S gratitude, the DHO believes JORDAN had no

12

right to step in and physically break up an altercation between two inmates[,] . . . [and]

13

this could have resulted in MILLS having an advantage against WEAKLEY and the

14

incident could have resulted in more serious injuries or death for inmate WEAKLEY.”

15

Id. (emphasis in original).

16

credible, finding that his written statements conflicted. Response (Doc. 12), Mitchell

17

Decl. (Exh. “A”), DHO Rpt. 2/18/2016 Attach. “2” at 4. DHO Liwag also “considered

18

JORDAN’S stat[e]ments, inmate witnesses’ and staffs[’] exculpatory statements, but still

19

deemed [Petitioner’s] interference to be an assault on Inmate WEAKLEY.” Id. “Based

20

on the greater weight of evidence (the officer’s written report, the supporting memo, the

21

video and the statements of the Inmate, the inmate witnesses statements & the staff

22

representative review of the video),” DHO Liwag found that Petitioner committed the

23

prohibited act of Assaulting Any Person (without serious injuries), in violation of Code

24

224.4 Id.

Response (Doc. 12), Exh. “A,” Attach. “2” at 4.

DHO Liwag observed

DHO Liwag deemed Inmate Weakley’s testimony less

25
26
27
28

DHO Liwag defined Code 224 as “Assaulting any person (a charge at this level is used
when less serious physical injury or contact has been attempted or accomplished by an inmate)[;]
See Code 101. Assault is an attempt or threat to do violence to another and includes battery or
the UNCONSENTED TOUCHING OF ANOTHER.” Response (Doc. 12), Mitchell Decl. (Exh.
“A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 4 (emphasis in original).
4

- 18 -

1

The requirements of due process are satisfied if “there is some evidence from

2

which the conclusion of the administrative tribunal could be deduced[.]” Hill, 472 U.S.

3

at 455, 105 S. Ct. at 2774 (quoting United States ex rel. Vajtauer v. Commissioner of

4

Immigration, 273 U.S. 103, 106, 47 S. Ct. 302, 303, 71 L. Ed. 560 (1927)). DHO Liwag

5

considered and weighed the evidence in reaching his conclusion. The Court finds that

6

there is “some evidence” to support the DHO’s finding, and Petitioner received the

7

requisite due process. See Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987).

8
9

b. Ground Five: Right to present witnesses and documentary
evidence

10

Petitioner asserts that his due process rights were violated, because the “DHO

11

refused to recieve [sic] into evidence and consider Jordan’s documentary evidence in the

12

form of written statements collected from inmate witnesses in 2010 by Jordan’s previous

13

staff representative, Lance Cole[.]” Petition (Doc. 1) at 17–18. Petitioner alleges that:

14
15
16
17
18
19
20
21
22
23
24
25

In the days preceding February 10, 2016, Jordan was summoned before the
DHO, C. Liwag, for rehearing on the Incident Report. At this time, DHO
Liwag refused to accept into evidence and consider Jordan’s proffered
written inmate witness statements that had been prepared in July of 2010
and collected by his previous staff representative, Lance Cole, from other
USP-Lee inmates who witnessed the incident. These documents included
the written statements of inmates Matt Campbell, Mike Hoffman, T.
Arthur, Jeremiah McGuire, Justin Raions, Anthony Verdenski, Charles
Dewabel, Mary Burt, Tom Martin, Daniel Magee, Robert George, Adam
Verdekal, T. Robinson, Anthony Sabetta, Tommy Jackson, and Randy
Souza. Each of these inmate written witness statements averred that Jordan
did not assault either Weakley or Mills during the incident and that any
touching of either by Jordan was merely incidental to his obvious attempt to
break up the altercation. DHO Liwag stated that he could not consider
these exculpatory statements because they were “dated” and not collected
through Jordan’s current staff representative, Counselor R. Boudreau, who
had been assigned as Jordan’s staff representative for the second rehearing.

26

Petition (Doc. 1) at 13–14. Matt Campbell stated that he “personally witnessed the

27

events of July 10th 2010” and opined that “Mark Jordan simply tried to break up a fight

28

on the yard. No more. No less.” Response (Doc. 12), Mitchell Decl. (Exh. “A”), USP–

- 19 -

1

Lee Inmate Written Statements (Attach. “2”) (Doc. 12-4) at 90. Mike Hoffman also

2

indicated that he “witnessed the events of July 10, 2010, and “[i]n [his] honest opinion,

3

Mark only attempted to beak [sic] up an altercation between two other inmates, and

4

otherwise had nothing to do with the incident . . . [and] did not assault either prisoner.”

5

Id., Exh. “A,” Attach. “2” at 91. The remaining witnesses signed statements identical to

6

that signed by Inmate Vasiliades. See Id., Exh. “A”, Attach. “2” at 33, 92–99. DHO

7

Liwag accepted and considered Inmate Vasiliades’s statements. Response (Doc. 12),

8

Mitchell Decl. (Exh. “A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 2–4.

9

“During the DHO rehearing, JORDAN was presented with the video of the

10

incident and stated, ‘I intervened to break up the incident[;] I did put my foot on

11

Weakley’s hand to break it up.” Id., Exh. “A,” Attach. “2” at 3. DHO Liwag noted that

12

“[a]ssaulting another inmate by putting your foot on their hand/arm during a physical

13

altercation between two inmates can escalate the incident between both inmates[;]

14

[t]hough your intent may have been to quell the situation, you have no right to place your

15

foot on another inmate.” Id., Exh. “A,” Attach. “2” at 4. Even if the other inmate

16

statements had been admitted, they do not change Petitioner’s own admission.

17

Furthermore, the statements do not provide any additional factual evidence, merely the

18

opinions of the signors.

19

WEAKLEY’S gratitude, the DHO believes JORDAN had not right to step in and

20

physically break up an altercation between two inmates[;] . . . [t]he DHO believes that

21

JORDAN’S stepping on WEAKLEY’s hand or arm rendered him with only one arm to

22

defend himself against inmate MILLS who was on top of inmate WEAKLEY[,] . . . [and]

23

this could have resulted in MILLS having an advantage against WEAKLEY and the

24

incident could have resulted in more serious injuries or death for inmate WEAKLEY.”

25

Id., Exh. “A,” Attach. “2” at 4 (emphasis in original). Accordingly, Petitioner’s due

26

process rights were not violated as a result of the exclusion of the signed witness

27

statements.

As the DHO found, “[d]espite JORDAN’S intentions and

28

- 20 -

1

c. Ground Six: Delay of hearing

2

Petitioner asserts that his due process rights were violated “by virtue of the undue

3

delay between the underlying incident on July 10, 2010 and the February 10, 2016

4

rehearing[.]” Petition (Doc. 1) at 18. Petitioner argues that the length of time between

5

the incident and the rehearing “depriv[ed] him of favorable evidence and witnesses,

6

specifically, the testimony of witness Kenneth Mills, whose testimony was otherwise

7

available were the hearing properly held in a reasonable manner and at a meaningful

8

time.” Id. The record before the Court indicates that Petitioner received written notice of

9

the charges; had the opportunity to call witnesses and present documentary evidence; had

10

a staff representative; received a statement of the evidence relied on by the prison

11

officials; and the reasons for disciplinary actions. See Response (Doc. 12), Mitchell

12

Decl. (Exh. “A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 1–5. As such,

13

Petitioner received all of the procedural protections that he was due.

14

McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).

See Wolff v.

15

Even if Petitioner had a right to a disciplinary hearing at a certain time, he has

16

failed to demonstrate how Inmate Mills’s testimony would have changed the DHO’s

17

findings. DHO Liwag acknowledged that Inmate Mills “would testify that JORDAN’s

18

touching of inmate Weakley was merely ‘incidental’ and ‘not intentional.’” Response

19

(Doc. 12), Mitchell Decl. (Exh. “A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at

20

3. Petitioner has not presented any evidence show how this testimony would have altered

21

the DHO’s findings based upon Petitioner’s own statements and the video. See Section

22

III.C.2.b., supra. As such, the Court finds that Petitioner’s due process rights were not

23

violated.

24

D.

25

Petitioner asserts his disciplinary conviction was obtained in violation of 28 C.F.R.

26

§ 541.8(f) because 1) the DHO’s finding that Jordan committed an assault was “not

27

supported by the greater weight of the evidence”; and 2) “the DHO refused to recieve

28

[sic] into evidence and consider Jordan’s proffered documentary evidence in the form of

Sufficiency of Evidence (Grounds One and Two)

- 21 -

1

written statements of inmate witnesses prepared in 2010 and collected by his previous

2

staff representative, Lance Cole[.]” Petition (Doc. 1) at 17.

3

1. Ground One: Weight of evidence

4

Petitioner asserts that the DHO’s decision that Jordan committed an assault was

5

not supported by the greater weight of the evidence in contravention of Section 541.8(f),

6

Title 28, Chapter V, Code of Federal Regulations. Petition (Doc. 1) at 17. Section

7

541.8(f) provides in relevant part:

8

11

You are entitled to make a statement and present documentary evidence to
the DHO on your own behalf. The DHO will consider all evidence
presented during the hearing. The DHO’s decision will be based on at least
some facts and, if there is conflicting evidence, on the greater weight of the
evidence.

12

28 C.F.R. § 541.8(f). As discussed in Section III.C.2.a., supra, DHO Liwag considered

13

all of the evidence presented at the hearing, weighed the evidence, and made findings.

14

Additionally, Petitioner’s focus on whether or not the contact was “unwanted” is without

15

merit. Prohibited Act Code 224 provides “Assaulting any person (a charge at this level is

16

used when less serious physical injury or contact has been attempted or accomplished by

17

an inmate).” 28 C.F.R. § 541.3, tbl. 1. As DHO Liwag found, “[d]espite JORDAN’S

18

intentions and WEAKLEY’S gratitude, the DHO believes JORDAN had no right to step

19

in and physically break up an altercation between two inmates[,] . . . [and] this could have

20

resulted in MILLS having an advantage against WEAKLEY and the incident could have

21

resulted in more serious injuries or death for inmate WEAKLEY.” Response (Doc. 12),

22

Mitchell Decl. (Exh. “A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 4 (emphasis

23

in original). Given all the evidence presented, the Court finds a greater weight of the

24

evidence supports the DHO’s determination in this case.

9
10

25

2. Ground Two: Additional Witness Statements

26

Petitioner asserts that his disciplinary convictions violated his rights pursuant to 28

27

C.F.R. § 541.8(f) because “the DHO’s refused to recieve [sic] into evidence and consider

28

Jordan’s proffered documentary evidence in the form of written statements of inmate

- 22 -

1

witnesses prepared in 2010 and collected by his previous staff representative, Lance

2

Cole[.]” Petition (Doc. 1) at 17. Section 541.8(f)(3) provides in relevant part:

3

6

You or your staff representative may request witnesses appear at the
hearing to testify on your behalf. Your requested witnesses may not appear
if, in the DHO’s discretion, they are not reasonably available, their presence
at the hearing would jeopardize institution security, or they would present
repetitive evidence.

7

28 C.F.R. § 541.8(f)(3). As discussed in Section III.C.2.b., supra, the majority of the

8

additional statements Petitioner sought to present were identical to that signed by inmate

9

Vasiliades which was accepted and considered by the DHO.

4
5

Response (Doc. 12),

10

Mitchell Decl. (Exh. “A”), DHO Rpt. 2/18/2016 (Attach. “2”) (Doc. 12-4) at 33, 92–99.

11

The two statements that were not identical, did not provide any additional information.

12

See id., Exh. “A,” Attach. “2” at 90–91. The DHO properly exercised his discretion in

13

excluding the repetitive evidence.

14

E.

Religious Freedom (Ground Three)

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Petitioner describes himself as “a practitioner of Judaism, and sincerely believes in

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exercise thereof that he is religiously obliged to intervene to prevent the murder and/or

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unjustified assault of a fellow human being.” Petition (Doc. 1) at 11. As such, Petitioner

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characterizes his intervention in the Mills/Weakley altercation to be a religious exercise.

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Id. Petitioner asserts that his “disciplinary conviction was obtained in violation of his

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religious freedom rights protected by statute, 42 U.S.C. §§ 2000bb-cc, in that it

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substantially burdens Jordan’s religious exercise . . . while failing to further a compelling

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government interest by the least restrictive means.” Petition (Doc. 1) at 17.

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“Congress enacted the [Religious Freedom Restoration Act of 1993 (“RFRA”)] in

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1993 in order to provide very broad protection for religious liberty.” Burwell v. Hobby

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Lobby Stores, Inc., 573 U.S. 682, 693, 134 S. Ct. 2751, 2760, 189 L. Ed. 2d 675 (2014).

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RFRA provides that the “Government shall not substantially burden a person’s exercise

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of religion even if the burden results from a rule of general applicability[.]” 42 U.S.C. §

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2000bb-1(a). “Enacted after the Supreme Court held [RFRA] unconstitutional[,] . . . as

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applied to the states, in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L.

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Ed. 2d 624 (1997), [the Religious Land Use and Institutionalized Person Act

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(“RLUIPA”)] essentially reinstitutes the demanding RFRA standard of review for

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intrusions on religious liberty in the limited contexts of prisoners and federal land.

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Walker v. Beard, 789 F.3d 1125, 1134 (9th Cir. 2015). RLUIPA provides in relevant

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part:

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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, as defined in section
1997 of this title, even if the burden results from a rule of general
applicability, 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

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(2) is the least restrictive means of furthering that compelling
governmental interest.

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42 U.S.C.A. § 2000cc-1. RLUIPA defines “religious exercise” to include “any exercise

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of religion, whether or not compelled by, or central to, a system of religious belief.” 42

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U.S.C. § 2000cc-5(7)(A). “To constitute a substantial burden, a limitation of religious

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practice must impose a significantly great restriction or onus upon such exercise.”

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Walker, 789 F.3d at 1135 (quotations and citations omitted).

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Assuming, without deciding, that the BOP regulations substantially burden

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Petitioner’s exercise of his religious beliefs, prison security is a compelling governmental

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interest. Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir. 2005). Furthermore,

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BOP’s “rules preventing an inmate from joining in an ongoing melee, even if the inmate

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does so with the intention of stopping the fight, are the least restrictive means of

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accomplishing this interest.” Jordan v. Zych, No. 7:10-cv-00491, 2011 WL 2447937, at

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*6 (W.D. Va. June 15, 2011). The Court finds Petitioner’s RFRA claim without merit.

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IV.

CONCLUSION
Based on the foregoing, the Court finds that the due process requirements as

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delineated by Wolff were met in this case. The Court further finds that the DHO findings

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were supported by “some evidence” as required by Hill. Additionally, the Court finds

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Petitioner’s evidentiary objections are without merit and his religious freedom was not

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violated. Therefore, the Petitioner’s Petition (Doc. 1) shall be denied. Accordingly, IT

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IS HEREBY ORDERED that:

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(1)

C. Howard, Warden, is SUBSTITUTED as the sole Respondent, replacing

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B. Baltazar pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule

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43(c)(2) of the Federal Rules of Appellate Procedure; and

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(2)

Petitioner’s Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus

by a Person in Federal Custody (Doc. 1) is DENIED;

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(3)

All pending motions are DENIED AS MOOT; and

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(4)

The Clerk of the Court shall enter judgment and close its file in this matter.

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Dated this 31st day of March, 2021.

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