Delgadillo v. Outlaw
MEMORANDUM OPINION AND ORDER that Delgadillo's petition for a federal writ of habeas corpus is DENIED; 13 MOTION for Declaratory Judgment filed by George Delgadillo is also DENIED. Signed by Magistrate Judge Beth Deere on 3/27/13. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO.: 2:12CV00174 BD
T.C. OUTLAW, Warden,
Federal Correctional Complex,
Forrest City, Arkansas
MEMORANDUM OPINION AND ORDER
Petitioner George Delgadillo, an inmate in the Federal Correctional Institution in
Forrest City, Arkansas (“FCI-FC”), brings this 28 U.S.C. § 2241 petition for writ of
habeas corpus (docket entry #1) challenging a prison disciplinary conviction. Warden
T.C. Outlaw has responded to the petition (#6), and Mr. Delgadillo has replied (#12). For
the following reasons, Mr. Delgadillo’s petition is DENIED and DISMISSED, with
Also Pending is Mr. Delgadillo’s motion for declaratory judgment. (#13) For the
same reasons the petition is denied, Mr. Delgadillo’s motion (#13) is also DENIED.
Mr. Delgadillo is currently serving a 70-month federal sentence. On February 14,
2011, he entered the FCI-FC’s Residential Drug Abuse Program (“RDAP”). The RDAP
offers inmates incentives for successfully completing the program. One incentive is
eligibility for a one-year reduction in the inmate’s sentence. 18 U.S.C. § 3621(e)(2)(B).
On March 19, 2012, while still a student in the RDAP, a fellow student attacked
Mr. Delgadillo with a weapon. Surveillance video showed that Mr. Delgadillo threw at
least one punch at the aggressor, apparently in self defense. (#1 at p. 23)
Mr. Delgadillo successfully completed the institutional portion of the RDAP on
March 29, 2012. (#1, at p. 20) FCI-FC officials also completed the documentation for
Mr. Delgadillo’s transfer to a Residential Reentry Center (“RRC”). This transfer was to
occur on June 1, 2012. (#1, at p. 21) Mr. Delgadillo’s early release to an RRC was the
result of incentives earned through RDAP participation.
On May 15, 2012, FCI-FC officials issued an incident report charging Mr.
Delgadillo with fighting on March 19, 2012. (#1 at p. 22) FCI-FC officials held a
disciplinary hearing on May 23, 2012. On June 6, 2012, FCI-FC officials found Mr.
Delgadillo guilty of fighting. (#1, at pp. 22-24) Mr. Delgadillo lost good-conduct time as
a result of the conviction. Although there is no documentation in this record, it appears
that Mr. Delgadillo also lost his RDAP early release incentive due to the fighting
Mr. Delgadillo argues that the delay in charging him with fighting and his loss of
incentives violated his due process right. Respondent argues that Mr. Delgadillo had no
constitutional right to due process in the prison disciplinary process and that early release
through RDAP incentives is wholly discretionary.
In the prison setting, inmates are entitled to due process protections, but at a
substantially limited level. When revoking good conduct time, these due process rights
are: (1) advanced written notice of the disciplinary violation; (2) an opportunity, with
some exceptions, to call witnesses and present a defense; and (3) a written statement by
the fact-finders as to the evidence relied upon and the reasons for the disciplinary action
taken. Dible v. Scholl, 506 F.3d 1106, 1110 (8th Cir. 2007)(citing Superintendent v. Hill,
472 U.S. 445, 454, 105 S.Ct. 2768 (1985) and Wolff v. McDonnell, 418 U.S. 539, 564571, 94 S.Ct. 2963 (1974)). There is no question here that Mr. Delgadillo received these
procedural protections; the only issue is the long delay in charging Mr. Delgadillo with a
disciplinary violation. (#1 at pp. 22-24)
Evidence Supporting the Disciplinary Conviction
In addition to the procedural requirements for disciplinary proceedings, prison
officials must support disciplinary convictions with “some evidence” to comport with due
process requirements. Flowers v. Anderson, 661 F.3d 977, 980 (8th Cir. 2011)(citing
Superintendent, 472 U.S. at 455, 105 S.Ct. at 2774). In determining whether there was
some evidence to support the disciplinary conviction, the Court is not called upon to
examine the entire record, to independently assess the credibility of witnesses, or to weigh
the evidence. Id. Instead, the relevant question is whether there is evidence in the record
that supports the disciplinary conviction. Id.
In this case, a video showed that an inmate attacked Mr. Delgadillo and that Mr.
Delgadillo threw at least one punch in self-defense. (#1 at p. 23) Throwing a punch,
even in self-defense, is some evidence to support a disciplinary conviction for fighting.
This Court is not free to weigh the evidence or evaluate the fairness of Mr.
Delgadillo’s disciplinary conviction. Instead, the Court is bound by a deferential
standard: Was there “some evidence” to support the conviction? The video evidence in
this case satisfies the “some evidence” standard.
Delay in Disciplinary Conviction
Mr. Delgadillo’s claim rests in part on the fifty-seven-day delay between the fight
and the issuance of the disciplinary. During this delay, Mr. Delgadillo received a
certificate for his successful completion of the institutional portion of the RDAP. (#1, at
p. 20) He also prepared for his authorized transfer to an RRC that was scheduled for June
1, 2012. (#1, at p. 21)
It appears, as Mr. Delgadillo alleges, that the Bureau of Prisons (“BOP”) failed to
follow its own policy regarding the issuance of Mr. Delgadillo’s disciplinary charge.
Under 28 C.F.R. § 541.5(a), an inmate will ordinarily receive an incident report within
twenty-four hours of the BOP staff’s becoming aware of the incident. Clearly that did not
occur here. As Respondent correctly notes, however, the twenty-four-hour time frame is
not mandatory. (#6 at pp 2-3) Inclusion of the word “ordinarily” as a modifier for
“within twenty-four hours” shows that the time limit is not mandatary. It also shows,
however, that twenty-four hours was the amount of time that drafters of the regulation
thought to be reasonable for investigating an incident and issuing a report.
At least one court has found that the BOP should show good cause for departing
from its own time frames. Lopez v. Bureau of Prisons, 221 F.3d 1339 (7th Cir. 2000)
(BOP has discretion to depart from time frames in 28 C.F.R. for good cause). Possibly in
an attempt to show good cause, Respondent states that it took BOP staff time to
investigate whether Mr. Delgadillo committed a disciplinary violation. (#6, at p. 3) This
explanation strains credulity. An FCI-FC official called Mr. Delgadillo into his office the
day after the fight. (#1, at p. 23) The same day, the official reviewed the recorded video
tape. (#1, at p. 23) This was fifty-six days before issuance of the incident report. For
some reason, and despite calling Mr. Delgadillo into the office the day after the fight, the
official did not interview Mr. Delgadillo until April 12, 2012. (#1, at p. 23) FCI-FC
officials waited until May 15, 2012, to issue the incident report charging Mr. Delgadillo
with fighting. (#1, at p. 22) The disciplinary hearing officer did not use any evidence
collected after the April 12, 2012 interview when determining Mr. Delgadillo’s guilt.
(#1, at p. 23)
As Respondent notes, BOP regulations can provide more protection than the
Constitution requires, but the regulations do not raise the standard of constitutional due
process. Goff v. Dailey, 991 F. 2d 1437, 1442 n. 9 (8th Cir. 2003). The regulations
themselves do not create a liberty interest or define the procedural requirements of due
process. Jones v. Cross, 637 F.3d 841, 846 (7th Cir. 2011). So even if the BOP failed to
follow its own regulations, this failure standing alone cannot support a constitutional due
process claim. Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003).
Mr. Delgadillo claims, however, that the delay denied him due process. (#12)
Respondent states that Mr. Delgadillo “has no constitutional right to due process in the
prison disciplinary process.” (#6 at p. 2) This statement is not necessarily true. Mr.
Delgadillo does not have a liberty interest in the procedures used to determine his
confinement. Id. But when, as here, good conduct time is revoked, Mr. Delgadillo’s
interest has “real substance and is sufficiently embraced within Fourteenth Amendment
‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances
and required by the Due Process Clause.” Wolff, 418 U.S. at 557.
Reduction in a sentence for RDAP completion, like reduction of a sentence for
good conduct, is discretionary. See Zacher v. Tippy, 202 F.3d 1039, 1041 (8th Cir. 2000)
(the language of section 3621(e)(2)(B) is permissive, stating that the BOP “may” grant
early release, but not guaranteeing eligible inmates early release). A change in sentence
reduction eligibility, however, does not implicate a protected liberty interest. Id. at 104546 (inmate’s change in sentence-reduction eligibility status does not implicate a liberty
interest protected by the Due Process Clause); Gore v. Fondren, 2008 WL 4787652 (D.
Minn. Oct. 31, 2008)(under BOP Regulations governing the RDAP sentence reduction
program, an inmate found guilty of fighting may lose eligibility for a RDAP sentence
reduction); Bureau of Prisons Program Statement 5331.02 (inmate may lose early release
eligibility at any time).
Even if FCI-FC officials had already transferred Mr. Delgadillo to the RRC, loss
of this placement would not provide the basis of a due process claim. See Staszak v.
Romine, 221 F.3d 1344 (8th Cir. 2000) (unpublished) (citing Callender v. Sioux City
Residential Treatment Facility, 88 F.3d 666, 668 (8th Cir.1996)(placement in a halfway
house did not provide the sort of substantial freedom that gives rise to a liberty interest
inherent in the Due Process Clause; revocation of halfway-house placement was not an
atypical or significant deprivation of liberty interests).
Mr. Delgadillo does not have a liberty interest in receiving a sentence reduction, or
any incentive, for RDAP completion. Cf. Greenholtz v. Nebraska Penal Inmates, 442
U.S. 1, 7, 99 S.Ct. 2100, 2104 (1979) (there is no constitutional or inherent right of a
convicted person to be conditionally released before the expiration of a valid sentence.);
Giannini v. Fed. Bureau of Prisons, 405 F. App’x 96, 97 (8th Cir. 2010)(unpublished)
(citing Richardson v. Joslin, 501 F.3d 415, 420 (5th Cir. 2007)(neither the Due Process
Clause nor 18 U.S.C. § 3621(e)(2)(B) creates a liberty interest in receiving a sentence
reduction upon completion of the RDAP)).
Further, it appears that Mr. Delgadillo has not completed all the components of the
RDAP. In addition to completing the institutional portion of the RDAP, inmates must
also complete the Transitional Drug Abuse Treatment (“TDAT”) component to
successfully compete RDAP. See Staszak, 221 F.3d 1344 (unpublished)(early release was
conditioned on completion of both the institutional and community transition components
of the drug treatment program); 28 C.F.R. § 550.53(a)(3)(inmates who have completed
the unit-based program must successfully complete community-based drug abuse
treatment in a community-based program to have successfully completed RDAP); 28
C.F.R. § 550.56(a)(“For inmates to successfully complete all components of RDAP, they
must participate in TDAT in the community.”).
Before his disciplinary conviction, Mr. Delgadillo was scheduled to participate in
the TDAT from June 1, 2012, to September 28, 2012. (#1, at p. 21) It appears that Mr.
Delgadillo has not participated in TDAT yet. Accordingly, he has not completed all
RDAP components. His early release was conditioned on completion of all RDAP
Mr. Delgadillo has not established a protected liberty interest in receiving a more
timely disciplinary charge or RDAP incentives. He also has failed to show that he
completed all components of the RDAP to be eligible for RDAP incentives. Accordingly,
Mr. Delgadillo has not established the basis for habeas relief.
FCI-FC officials afforded Mr. Delgadillo all of the process he was due, and his
disciplinary conviction is supported by some evidence. Mr. Delgadillo did not have a
protected interest in receiving RDAP incentives or a more timely disciplinary charge.
Accordingly, George Delgadillo’s petition for a federal writ of habeas corpus is DENIED.
His motion for declaratory judgment (#13) is also DENIED.
This case is DISMISSED, with prejudice, this 27th day of March, 2013.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?