Mackey v. Cozza-Rhodes

Filing 26

ORDER by Judge Philip A. Brimmer on 8/18/15. ORDERED: The Motion for Leave of Court to Expand the Record 20 is DENIED. ORDERED: The Notice and Emergency Request 24 is DENIED. ORDERED: The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 1 is denied and this case is dismissed with prejudice. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A Brimmer
Civil Action No. 14-cv-02478-PAB
BAKARI DARNELL MACKEY,
Applicant,
v.
COZZA-RHODES, Warden,
Respondent.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter comes before the Court on the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 1] (the “Application”) f iled pro se by
Applicant, Bakari Darnell Mackey. On January 5, 2014, Respondent was ordered to
show cause why the Application should not be granted. On January 23, 2015,
Respondent filed a Response to the Order to Show Cause (the “Response”), Docket
No. 17, and Exhibits in Support, Docket No. 18. On February 9, 2015, Mr. Mackey filed
a Reply (the “Reply”). Docket No.19. On March 12, 2015, Applicant f iled a Motion for
Leave of Court to Expand the Record, Docket No. 20, to which Respondents filed a
Response on June 18, 2015. Docket No. 22. Af ter reviewing the pertinent portions of
the record in this case, including the Application, the Response, the Reply, the Motion
to Expand and Response thereto, the Court concludes that the Application should be
denied.

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
Mr. Mackey is a federal prisoner currently in the custody of the United States
Bureau of Prisons (“BOP”) at the Englewood Forest City Low Federal Correctional
Institution in Forrest City, Arkansas. While he was in custody at the Federal
Correctional Institution at Florence, Colorado, Mr. Mackey filed this action challenging
the validity of a prison disciplinary conviction he incurred while he was incarcerated at
the Federal Correctional Institution in Safford, Arizona. Specifically, on January 6,
2014, Applicant received an incident report for stalking (Code 225) and being in an
unauthorized area (Code 316). On January 6, 2014, Applicant was issued a copy of
Incident Report No. 2534074 and made the following statement: “I never stalked or
harassed Officer Riney and she never warned me to stay out of the dorm and in some
cases I have been allowed to go into the dorms.” Applicant requested the presence of
three witnesses that would be able to provide information on his behalf. On January
24, 2014, Discipline Hearing Officer Joseph Devore conducted a DHO hearing in regard
to the above incident report. Before the hearing, Applicant requested the assistance of
a staff representative, which was granted. Applicant’s staff representative appeared
before the DHO and her statement was documented in the DHO report. At the DHO
hearing, Applicant waived the appearance of two witnesses and the third witness
refused to attend. Applicant requested video footage be reviewed during the DHO
hearing. After investigation, it was determined that the video footage no longer existed
regarding the incident, as it is only kept for fourteen days. The DHO found that Mackey
committed the prohibited acts based on the f ollowing evidence:

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The DHO finds on 1-5-2014, at 11:40 a.m., inmate Mackey, Reg. No.
21282-001, committed the prohibited act of Stalking, Code 225. To make
this finding, the DHO relied on the following:
The reporting staff member’s first hand eyewitness account that on
12-3-2013, at 6:45 p.m., after having been previously warned you and she
are not friends, you, inmate Burton,1 approached the reporting staff member
and asked her to make rounds at 7:30 p.m. You were told not to “start with
her.” During the rest of the shift you continued to pass by her office,
approximately 8 times in a three hour period. The following day you
approached her about refilling a prescription that had no refills left, that was
initially filled three months prior to that day.
The DHO considered your request to have the video reviewed. The DHO
was informed during the DHO hearing, in the presence of the charged
inmate, by the hearing facilitator, Mr. Zuniga, that there was no video
evidence available to consider. Mr. Zuniga contacted the SIS department
and confirmed the absence of any video evidence and documented the
explanation in an email submitted to the DHO.
...
You claimed your duties in the education department require you to pass out
certificates and other materials to inmates within all of the housing units.
Based on your staff representative’s statement, the DHO finds the evidence
supports your claim that you do in fact conduct educational business within
different housing units. You provided no evidence that on this occasion you
were authorized by Ms. Riney, the housing unit officer, to be in a unit you did
not belong in, Saguaro B. In fact you denied being in the unit at all. You said
during the hearing that even though you enter the units on a regular basis,
you needed authorization to enter prior to going in. There is no evidence Ms.
Riney provided you with permission to enter Saguaro unit.
The DHO considered your denial. You said you were not stalking her. You
claimed she had never told you that your personal conversations were
unwanted. You said she never told you to stop. You acknowledged you
were approached by Officer Salyer who instructed you to stop approaching
Ms. Riney and attempting to enter into personal conversations. This is
supported by Salyer's memorandum. You alleged Riney later approached
you and told you Salyer approached you on his own and not by her request.
Riney’s memorandum contradicts this claim. She wrote in her memorandum
that not only did she tell you her personal life is none of your business, she
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The Court finds that the reference to “Burton” is a typographical error.
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indicated she informed Salyer of your unwanted advances on the prior
occasion in November 2013. She also became aware that Salyer had
intervened on her behalf again telling you your behavior is inappropriate and
unwanted. As a result of Salyer’s counseling session, you later apologized
to her. You claimed she said it wasn’t her desire to have Salyer intervene.
The DHO finds her credible. Salyer supports her claim in his memorandum
that she approached him about your inappropriate behavior. The DHO can
find no reason whatsoever why a staff member would inform another staff
member about an inmate attempting to engage in personal conversations
with her, unless it was to seek assistance and support in stopping the
behavior. Salyer instructed you to stop your personal approaches towards
Riney in November 2013. This was made clear in the Riney and Salyer
memorandums as well as your own admission during the hearing. The DHO
finds your claim Riney told you it was not by her request that Salyer
intervened less than credible. The facts and evidence weigh strongly that
Riney sought Salyer's intervention, which he provided. You claimed it was
her that initiated the personal conversations with you. The DHO again finds
that less than credible. Had it been her who initiated the conversations, she
would not have had to seek peer help in stopping your approaches. She
could have merely stopped conversing with you. The facts and evidence as
well as your own statement support the element that you had been put on
notice that your behavior was unwanted, inappropriate and must stop. The
DHO considered your statement that you did not enter the reporting staff
member’s housing unit the day of the alleged incident. You claimed you did
not make the statements attributed to you in the incident report. You said
you did not ask her if you were wasting your time, emotionally and mentally,
the day prior to the incident on 1-5-2014. You denied that on 1-5-2014, after
you approached her saying you “just wanted to talk" that she once again
warned you about your behavior and confirmed that you had been warned
several times to stay away from her. You said you were approached by
inmate Bunton, Reg. No. 23317-112, and told to “back off” Ms. Riney. You
said you did approach Ms. Riney and told her you wanted to confirm that it
was her that wants you to stay away from her and not just inmate Bunton.
This indicates it was not only Ms. Riney and Mr. Salyer but also another
inmate who was aware of your inappropriate attempts to contact Ms. Riney
in a personal manner. When weighing credibility, the DHO considered your
statement that you and Ms. Riney have had no negative interaction with you
prior to this incident report. The DHO could find no motive that Ms. Riney
might have to cause her to misrepresent what occurred in a light unfavorable
to you, whereas you do have an incentive to misrepresent what occurred to
avoid the consequences of your actions. The DHO found you lacked
credibility when you stated Ms. Riney was the reason Mr. Salyer counseled
you. Salyer’s and Riney’s memorandums corroborate the claim Ms. Riney
sought assistance from another staff member to get you to stop stalking her.
The DHO finds you were not a credible witness. The DHO finds you were in
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the incorrect unit without staff authorization. In her memorandum, Ms. Riney
was very specific in describing in your actions of entering her unit and then
talking to an inmate. She told you to depart the unit as it was not your unit.
She said you left Saguaro unit behind her and asked to talk to her. The
conversation was based on your desire to be told directly from her to keep
your distance from her. She reminded you that you had been warned in the
past to stay away from her and not engage her in conversation. During the
hearing, you were elusive when asked if you were in the unit. Your initial
response was Ms. Riney left before you and the report could not have been
technically correct when it stated she observed you leave the unit. Later you
stated you were never in the unit, contradicting your claim she left BEFORE
you did and couldn’t have observed you leave. The DHO finds you are not
reliable or credible. The DHO finds the greater weight of evidence supports
the charge you were in the wrong unit without staff authorization and you
approached Ms. Riney in a personal, inappropriate manner after having been
informed your behavior was inappropriate and unwanted and to stop your
personal advances.
The DHO read and considered your denial . . . that you made during the
Lieutenant’s Investigation of the incident report. However, you did not deny
being in the unit during the incident report investigation. You just claimed
that Ms. Riney had never informed you to stay out of the dorms in the past
and in some instances you have been allowed to enter the dorms. This
furthers the DHO’s disbelief in your current claim you did not enter the unit.
You did deny stalking Ms. Riney consistent with your current defense. The
DHO does not find you, or your denial, that you didn’t stalk Ms. Riney,
credible based on the above weighing of statements and evidence.
The DHO read the UDC summary contained in PART II of the incident report
as well as memorandums from the two UDC members (Aguilar, Ozeta). The
memorandums indicated you did not want to answer questions posed to you.
The UDC summary and staff memorandums indicated you were
uncooperative and somewhat disruptive during the process. There was
nothing, exculpatory or otherwise, regarding the merits of the case that was
contained within the UDC statements.
Based on the greater weight of evidence, the DHO finds you committed the
prohibited act of Code 225, Stalking. Specifically, you had been warned
about this type of behavior towards this specific staff member in the past and
to stop. You continued to approach her in inappropriate ways, attempting [to]
engage her in personal conversations not related to her duties as a
correctional staff member.
Based on the greater weight of evidence, the DHO finds you committed the
prohibited act of Code 316, Being In An Unauthorized Area Without Staff
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Authorization. Specifically, you had entered a unit you did not belong in
without staff authorization. The DHO considered your claim you enter units
that you are not assigned to due to your duties in education. You
acknowledged you did not have carte blanche permission but had to be
authorized by staff on a per incident basis. You denied being in the unit,
which the DHO does not believe, and therefore deny seeking authorization
to be in the unit.
Docket No. 1, pp. 11-16.
Following the DHO hearing, Mr. Mackey was sanctioned with the loss of phone
and commissary privileges for six months and the loss of twenty-seven days of goodtime credit. Docket No. 1, p. 15.
On September 5, 2014, Mr. Mackey filed an action in this court seeking
expungement of his disciplinary conviction and restoration of twenty-seven days of
good-time credit. Docket No. 1 at 6. He claims that he was denied due process by not
being able to present the video evidence and that he was denied due process by not
having a psychological review and/or being able to present psychological evidence.
II. STANDARD OF REVIEW
The Court must construe the Application and the Reply liberally because Mr.
Mackey 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 “is 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

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(10th Cir. 1997). Habeas corpus relief is warranted only if Mr. Mackey “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3).
III. DISCUSSION
The Fifth Amendment protects federal prisoners against the deprivation of liberty
or property without due process of law. To sufficiently plead a due process claim, Mr.
Mackey must allege facts showing: 1) that he was deprived of a liberty or property
interest and 2) that the procedures required prior to such a deprivation were not
properly observed. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“those who seek to
invoke [the due process clause’s] procedural protection m ust establish that one of these
interests is at stake”).
In Wolff v. McDonnell, 418 U.S. 539, 555–57 (1974), the Suprem e Court held
that prisoners have a liberty interest in receiving good time credits that cannot be
deprived in a prison disciplinary proceeding without procedural due process protections.
Notwithstanding, the Court held that prison disciplinary proceedings “are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such proceedings
does not apply.” Wolff, 418 U.S. at 556. If a protected liberty interest is implicated,
procedural due process requires that a prison inmate facing disciplinary charges be
provided: 1) the right to appear before an impartial decision-making body, 2) twenty-four
hour advance written notice of the charges, 3) an opportunity to call witnesses and
present documentary evidence, provided the presentation of such does not threaten
institutional security or correctional goals, 4) assistance from an inmate representative,

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if the charged inmate is illiterate or if the complexity of the issue makes it unlikely that
the inmate will be able to collect and present the evidence necessary for an adequate
comprehension of the case, and 5) a written decision by the fact finders as to the
evidence relied upon and the rationale behind their disciplinary action. Id. at 563-71. In
addition, procedural due process requires that “the findings of the prison disciplinary
board are supported by some evidence in the record.” Superintendent v. Hill, 472 U.S.
445, 454 (1985) (internal citation and quotation marks omitted).
In the instant case, the Court finds that Applicant was afforded each of the due
process protections required by Wolff in connection with the disciplinary proceeding at
issue in this action. Specifically, he received the opportunity to appear before a DHO,
he was provided with written notice of the charges against him, and a copy of his rights
and notice of the disciplinary hearing were delivered to him more than twenty-four hours
before his hearing. Also, contrary to Applicant’s assertions, he was provided the
opportunity to call witnesses and afforded the right to staff representation. Finally, the
BOP provided Applicant with the DHO’s report, which provided a thorough written
explanation of the DHO’s decision, as well as the evidence relied upon and the
rationale for the decision.
Moreover, the DHO’s decision is supported by some evidence. The
determination of whether that standard is satisfied “does not require examination of the
entire record, independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at
455-56. Under Hill, judicial review of a prison disciplinary decision is limited to ensuring
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that the prisoner was afforded certain procedures, the action against him was not
arbitrary, and that the ultimate decision has some evidentiary support. Id. at 457. The
Court cannot conduct a de novo review of the evidence and re-try the disciplinary case.
In this case, Mr. Mackey offers nothing to show that the disciplinary case was
falsified or fabricated beyond his own assertion that it was so. The fact that the DHO
believed the testimony of the correctional officers rather than his own statements does
not show a violation of due process; even if the DHO erred, in the context of prison
disciplinary proceedings, the Constitution requires due process, not error-free
decision-making. McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983).
Mr. Mackey states that his due process rights were violated because he was not
allowed to present the videotape evidence that would show that he was not in the area
at the time. However, the DHO investigated the request for the videotape and was
informed that the footage could not be reviewed because it was past fifteen calendar
days. Docket No. 18 at 20. Because the incident occurred on January 5, 2014 and the
request to the DHO for the surveillance tape was not made until January 24, 2014, the
tape no longer was available. See Bougue v. Vaughn, 439 F. App’x 700 (10th Cir.
2011) (no due process violation where videotape evidence was not available).
Here, Applicant provides evidence that he requested the video evidence on
January 13, 2014 during his UDC hearing. Docket No. 19 at 9. While it is somewhat
troubling to the Court that no effort was made to secure the videotape while it still was
available, its absence from the hearing does not result in a violation of due process.
Mr. Mackey was permitted to argue that he was not in the unit at the time at his hearing.
However, as found by the DHO, there is more than “some evidence” in the record to
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conclude that Mr. Mackey acted in the prohibited conduct of being in an unauthorized
area and stalking after having been previously warned to stop such conduct. The
Incident Report, signed by Officer Riney, provides as follows:
On January 5, 2014, at approximately 11:40 AM. I observed inmate Mackey
21282-001, exiting Saguaro Dorm. I/M Mackey lives in Octotillo 2-1U, and
did not have any reason or permission to be in Saguaro Dorm. He said, “I
just wanted to hear it from yourself.” I told him that I had already informed
him and warned him myself, on several occasions has [sic] repeatedly
asked me inappropriate personal questions and has followed me around
after being warned to stay away from me. He recently asked me, "Am I
wasting my time mentally and emotionally."
Docket No. 18 at 24.
In addition, in the January 5, 2014 Memorandum to Captain Gibbs, Officer Riney
details a lengthy history of Mackey’s unwanted attention towards her. Docket No. 18 at
29. Another Memorandum from Officer Salyer to Captain Gibbs concerns Officer
Riney’s conversations with him about her concern over Inmate Mackey’s unwanted
advances. Docket No. 18 at 30. Moreover, the inmate statement from Chaz Steptoe
places him in the unauthorized area. Docket No. 18 at 33.
It is apparent upon review of the record that the DHO’s decision was based on
“the greater weight of the evidence,” and that the DHO properly documented his
findings and specific evidence relied on in reaching those findings as required by 28
C.F.R. § 541.17(g). Thus, Mr. Mackey received all the due process protections
required for the deprivation of a protected liberty interest. The failure to preserve the
video evidence, while unfortunate, does not result in a violation of Mr. Mackey’s due
process rights. Therefore, he is not entitled to relief.

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Nor was Mr. Mackey denied due process by the DHO’s failure to have ordered a
psychiatric review under 28 C.F.R. § 541.6. This section provides as follows:
If it appears you are mentally ill at any stage of the discipline process, you
will be examined by mental health staff.
(a) Competency to Participate in Disciplinary Proceedings. If evidence
indicates that you cannot understand the nature of the disciplinary
proceedings, or cannot help in your own defense, disciplinary proceedings
may be postponed until you are competent to participate. The Unit
Disciplinary Committee or Discipline Hearing Officer will make this decision
based on evidence, including evidence presented by mental health staff.
(b) Responsibility for Conduct. You will not be disciplined for conduct
committed when, as the result of a severe mental disease or defect, you
were unable to appreciate the nature and quality, or wrongfulness of the act.
The UDC or DHO will make this decision based on evidence, including
evidence presented by mental health staff.
As an initial matter, the provision relied upon by Applicant is not a law but a
regulation. As such, without more, its violation does not implicate a constitutional right
and does not give rise to a claim cognizable on federal habeas review. The “failure to
adhere to administrative regulations does not equate to a constitutional violation.”
Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) (citation om itted); Myers
v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (per curiam) (citations omitted).
Moreover, there is no evidence of record that the DHO should have suspended
the disciplinary proceedings in order to have Applicant’s mental health examined. The
DHO found the following:
The DHO considered your request to be referred to psychology service. You
indicated that in accordance of Chapter 3 of the inmate discipline policy you
wanted to be referred to psychology services. That portion of the inmate
discipline policy deals with competency and responsibility.
As to
responsibility, your defense was not that you did not appreciate the
seriousness or wrongfulness of your actions. Your defense was you did not
commit the acts and behavior you were accused of committing. As to
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competence, the DHO found you were very capable and fully understood the
disciplinary proceedings.
You invoked the assistance of a staff
representative. You requested and then waived witnesses. You were aware
of your rights and articulated your defense vigorously. You were actually
able to cite the chapter regarding mental deficiencies. You were well versed
in all aspects of your due process rights afforded to you during the inmate
discipline process and exercised those rights. The DHO found no basis or
reason to refer you for a mental health examination. The policy chapter you
referenced allows for staff referral and not inmate referral. You stated
psychology services staff has seen you daily since you were placed in the
SHU due to the allegations of Code 225 and 316. You also acknowledged
neither you nor psychology staff discussed the possibility you were either
incompetent and/or not responsible.
Docket No. 1 at 13.
In his Reply, Mr. Mackey appears to assert that he was prevented from utilizing
his psychology reports during his DHO hearing. However, the DHO’s findings reveal
that Mr. Mackey was well aware of the charges against him and how to defend against
them. Moreover, as noted above, Mr. Mackey acknowledged that neither he nor any
psychology staff discussed the possibility that he was either incompetent and/or not
responsible. Finally, Applicant’s Application and Reply in the instant action does not
evidence an individual who lacks either the ability to understand a disciplinary hearing
or the capacity to assist in his own defense. See Harden v. Sherman, 2006 WL
3814767, at *4 (W.D. Pa. Dec. 27, 2006) (“His own factual averments in the petition,
however, establish that he was able to understand the proceeding and to participate in
his defense” for purposes of § 541.10(b)(6)). Thus, his due process rights were not
violated by either the DHO’s failure to refer Mr. Mackey for additional mental health
testing or to consider his psychological reports during the DHO hearing.

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IV. APPLICANT’S MOTION TO EXPAND THE RECORD
On March 12, 2015, Mr. Mackey filed a Motion to Expand the Record to include a
letter from BOP regarding potential settlement of his Administrative Claim No. TRTWXR-2014-03860. Docket No. 20. This letter provides as follows:
Dear Mr. Mackey:
This is in response to the amended administrative claim submitted to this
office under the provisions of the Federal Tort Claims Act, 28 U.S.C.
§§ 1346, 2671, et seq. You seek compensation for an inappropriate
relationship with staff and alleged retaliation against you after the
relationship, all arising from events occurring at the Federal Correctional
Institutions in Safford, Arizona, and Florence, Colorado, from 2012 to 2014.
In a letter dated November 13, 2014, you requested a settlement of
$15,000.00 for the above-referenced amended claim. Based upon our
investigation, we are prepared to offer you $15,000.00. If you are willing to
accept this offer, a staff member will contact you in the near future to obtain
your signature on the appropriate document. Our offer is in complete
settlement of any claim you may have against the United States, or any
Government employee, whose act or omission may have given rise to this
claim; this includes all allegations in your claim as originally submitted, and
as amended. This is neither an admission nor denial of government liability
in this matter.
If you decline this offer, you are afforded six months from the date of this
mailing of this letter via certified mail within which to bring suit in the
appropriate United States District Court.
Docket No. 20 at 3.
In its Response to this Motion, the Respondent argues that “the document is not
relevant to the issues in the petition” and “[t]hat Plaintiff may have received an offer to
settle a tort claim for money damages [has] no bearing on the issues that the Court
needs to resolve in this section 2241 action.” Docket 22 at 2. It appears that the BOP
offered Mr. Mackey a monetary settlement of his claims that he was retaliated against

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after an inappropriate relationship with staff at FCI-Safford and Florence Colorado from
2012 to 2014. The letter provides that the settlement offer “is neither an admission nor
denial of government liability in this matter.” The letter also does not identity with any
specificity the factual bases of the claims that is proposes to settle. As a result, the
letter has no probative value regarding the Application and Mr. Mackey’s request will be
denied.
V. CONCLUSION
In summary, the Court finds that Mr. Mackey is not entitled to any relief and the
Application will be denied. Accordingly, it is
ORDERED that the Motion for Leave of Court to Expand the Record [Docket No.
20] is DENIED. It is further
ORDERED that the Notice and Emergency Request [Docket No. 24] is DENIED.
It is further
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 [Docket No. 1] is denied and this case is dism issed with prejudice.

DATED August 18, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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