Deberry v. Berkebile

Filing 23

ORDER granting 1 application of writ of habeas corpus and denying 16 Motion for Order, by Judge R. Brooke Jackson on 3/17/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson

Civil Case No. 13-cv-01926-RBJ
FREDRICK D. DEBERRY,
Applicant,
v.
D. BERKEBILE (Warden),
Respondent.

ORDER GRANTING APPLICATION FOR WRIT OF HABEAS CORPUS

This matter comes before the Court on the pro se Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2241 (Doc. #1) filed July 17, 2013, by Applicant Fredrick D. Deberry.
On October 23, 2013, Respondent was ordered to show cause why the Application should not be
granted. Respondent has filed an Answer to Order to Show Cause (Doc. #15) and Applicant has
filed a Response to Defendant=s Answer (Doc. # 20). Applicant also filed a Motion for Order
Granting Applicant=s Relief Sought as Sanction for Failure of the Defendant to Comply with the
Court=s Order to Show Cause (Doc. #16) and Respondent filed a Response (Doc. #19). 1
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In his Motion, Applicant contends that Respondent failed to respond within twenty-one days to the
Court=s October 23, 2013 order to show cause why the Application should not be granted. (See Doc. #16 at
2-3.) In the Response, Respondent states that he submitted his response on November 14, 2013, one day
late due to a clerical error in Respondent=s notification system used to track case deadlines. (See Doc. # 19
at 2.) The Court finds that this error does not warrant sanctions. Moreover, Respondent concedes that
Applicant is entitled to the reinstatement of fifty-five days of good time conduct that Applicant lost as a
result of the disciplinary hearing he challenges. (Id.) Accordingly, the Court denies Applicant=s Motion
for Order Granting Applicant=s Relief Sought as Sanction for Failure of the Defendant to Comply with the
Court=s Order to Show Cause.

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After reviewing the pertinent portions of the record in this case, the Court concludes that
the Application should be granted.
I. BACKGROUND
Applicant is a prisoner in the custody of the Federal Bureau of Prisons (ABOP@) and he is
incarcerated at the United State Penitentiary, Administrative Maximum (AADX@) in Florence,
Colorado. Applicant is challenging the validity of a prison disciplinary conviction that resulted in
a loss of fifty-five days of good time credits and other sanctions.
The altercation that precipitated the disciplinary charges in question occurred on March 27,
2011. Applicant initially was charged in Incident Report No. 2142875 with (1) threatening
another with bodily harm; (2) refusing an order; (3) insolence; (4) interfering with the taking of
count; and (5) using abusive or obscene language. (See Doc. #1 at 11.)

The Incident Report,

prepared by Officer Erp, includes the following factual basis for the disciplinary charges against
Applicant:
On 3-27-2011 at approximately 3:56 PM while conducting feeding
D-B Unit bottom tier Inmate Deberry, Frederick Register
#09303-042 received his tray opened it and proceeded to the back of
the unit. Approximately 3 minutes later inmate Deberry returned
to the officers station grill and stated AI=m missing my fucking desert
from my food tray@ I informed inmate Deberry that he had opened
his tray in front of me and notated nothing wrong with the tray.
Inmate Deberry then stated ASo you ain=t gonna give me another tray
then call the Operations Lieutenant and tell him that inmate Deberry
ain=t locking down until the Lieutenant brings me a desert@ I then
proceeded to go to the recreation grill to retrieve a chair for the
orderly when inmate Deberry followed me to the grill stating AI
want you try to come in here and lock me down you punk mother
fucker and we will see what happens.@ I opened the grill to hand
the orderly the chair and inmate Deberry approached me in an
aggressive manner stating Ayou think I would lie to you about a
fucking cake?@ I gave inmate Deberry a direct order to back up and
return to his cell. Inmate Deberry Refused the direct order stating
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AI ain=t locking down till I see the Operations Lieutenant.
Operations Lieutenant was notified. When the Activities Lieutenant
Arrived Inmate Deberry proceeded to lock down at approximately
4:08 PM.
(Doc. #1 at 11.)
On May 16, 2011, Applicant was found guilty of the charges of threatening (code #203),
refusing an order (code #307), and insolence (code #312) at a hearing before the Disciplinary
Hearing Officer (ADHO@). (See Doc. #15-2 at 11.) At the hearing, the DHO considered Officer
Erp=s Incident Report, Officer Polite=s supporting memorandum, Unit Manager Derr=s summary of
video footage of the incident, Applicant=s own statement of events, and statements of three inmates
that Applicant requested to have testify on his behalf. (Id. at 11-12, 19-20.) Although, Applicant
asked to view video footage of the incident and to have that footage playing during the hearing,
neither request was granted. (Id. at 12; Doc. #1 at 3.) The DHO issued a written report on
August 12, 2011 (see Doc. #15-2 at 11-13).
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Applicant liberally
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
An application for a writ of habeas corpus pursuant to 28 U.S.C. ' 2241 Ais an attack by a
person in custody upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.@ Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also
McIntosh v. U.S. Parole Comm=n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief is
warranted only if Applicant Ais in custody in violation of the Constitution or laws or treaties of the
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United States.@ 28 U.S.C. ' 2241(c)(3).
With respect to prison disciplinary proceedings, A[i]t is well settled that an inmate=s liberty
interest in his earned good time credits cannot be denied without the minimal safeguards afforded
by the Due Process Clause of the Fourteenth Amendment.@ Mitchell v. Maynard, 80 F.3d 1433,
1444 (10th Cir. 1996) (internal quotation marks omitted); see also Howard v. U.S. Bureau of
Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (citing Mitchell in the context of a federal prisoner
challenging a prison disciplinary conviction). However, A[p]rison disciplinary proceedings are
not part of a criminal prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.@ Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Where a prison disciplinary hearing may result in the loss of good
time credits, . . . the inmate must receive: (1) advance written notice
of the disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and
present documentary evidence in his defense; and (3) a written
statement by the fact finder of the evidence relied on and the reasons
for the disciplinary action.
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563-67). In addition,
Arevocation of good time does not comport with the minimum requirements of procedural due
process unless the findings of the prison disciplinary board are supported by some evidence in the
record.@ Id. (internal citation and quotation marks omitted).
The Tenth Circuit has held that an inmate=s due process right to present documentary
evidence is violated when prison officials unjustifiably refuse the inmate=s request to produce and
review video footage. See Howard, 487 F.3d at 814-15 (finding that BOP must produce and
consider requested video footage at disciplinary hearing unless it would be unduly hazardous to
institutional safety or correctional goals); Whitmore v. Jones, 490 F. Appx. 122, 124 (10th Cir.
2012) (failure to Aproduce@ occurs when BOP refuses to provide an inmate with video footage of
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an alleged incident after the inmate specifically requests to view such video footage prior to a
disciplinary hearing); see also Davis v. Davis, No. 11-cv-00769-MSK, 2011 WL 5075617, at *5
(D. Colo. Oct. 25, 2011) (highlighting the need for the inmate to request review of the video
footage prior to the disciplinary hearing). This requirement to produce is relieved where there is
an undue hazard to institutional safety or correctional goals in permitting the inmate to view the
particular footage at issue. See Howard, 487 F.3d at 814. Denial of the right to review video
footage is subject to the harmless error standard. Id. at 815. A[T]he test for determining whether
a constitutional error is harmless ... is whether it appears >beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.=@ Neder v. United States, 527 U.S. 1, 16
(1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
III. DISCUSSION
Applicant advances two arguments for relief in the Application. First, Applicant alleges
he was denied procedural due process because prison officials unjustifiably denied his request that
video footage of the incident be presented and viewed as evidence during his disciplinary hearing.
(Doc. #1 at 3.) He further argues that the video footage would have supported his claim of
innocence. (Id.) Second, Applicant contends that he was denied due process because the DHO
was unfair and biased, and the allegations and charges in the Incident Report were fabricated in
retaliation for Applicant=s attempt to report Officer Erp=s Aunethical verbal outburst@ and
Applicant=s then-pending civil action, No. 10-cv-02268-CMA-BNB, which names the BOP and
Officer Polite as defendants. (Id. at 3, 7-8.)
A. Argument 1: Exclusion of Video Footage Evidence
Applicant first argues that the BOP=s refusal to permit him to view video footage of the
incident and to present the video footage to the DHO during the disciplinary hearing deprived
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Applicant of the process due him.
The record demonstrates, and Respondent concedes, that prior to his disciplinary hearing,
Applicant requested to view video footage of the incident at issue and to have that footage played
during the hearing. (See Doc. #1 at 3, 7, 13; Doc. #15-2 at 20.) The BOP, however, did not
permit Applicant to review the video footage, and did not play the footage for the DHO during the
hearing. (Id.) As stated above, the Tenth Circuit has held that prison officials cannot
unjustifiably refuse an inmate=s request to produce and review video footage without violating the
inmate=s right to due process. See Howard, 487 F.3d at 814-15. Moreover, Respondent
concedes that there was no undue hazard to institutional safety or correctional goals in permitting
Applicant to view the particular footage at issue. (Doc. #15 at 9.) Respondent also concedes that
he cannot demonstrate, beyond a reasonable doubt, that the error complained of did not contribute
to the verdict. (Id.) Accordingly, the Court finds that the BOP violated Applicant=s procedural
due process rights, and that this constitutional error was not harmless. The Court, therefore, finds
that Applicant is entitled to the relief he requests. The Court directs Respondent to reverse and
expunge the DHO=s findings that Applicant violated offense codes 203, 307, and 312 from his
prison records and to restore the fifty-five days of good conduct time that had been revoked as a
result of that disciplinary hearing.
B. Argument 2: Bias and Retaliation Claims
Because the Court grants Applicant the relief he seeks, the Court need not address the
allegations of bias and retaliation in Applicant=s second claim.
IV. CONCLUSION
For all these reasons, the Court finds that Applicant is entitled to relief in this action and the
Application will be granted. Accordingly, it is
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ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241
(Doc. #1) filed July 17, 2013, by Fredrick D. Deberry is GRANTED. It is
FURTHER ORDERED that Applicant=s Motion for Order Granting Applicant=s Relief
Sought as Sanction for Failure of the Defendant to Comply with the Court=s Order to Show Cause
(Doc. #16) is DENIED. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
DATED this 17th day of March, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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