Fowles v. Denham

Filing 6

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/26/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02562-BNB
DWAYNE FOWLES,
Applicant,
v.
DEBORAH DENHAM, Warden, FCI-Englewood,
Respondent.

ORDER OF DISMISSAL

Applicant, Dwayne Fowles, is in the custody of the Federal Bureau of Prisons at
the Federal Correctional Institution in Englewood, Colorado. He initiated this action by
filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF
No.1). Mr. Fowles has paid the $5.00 filing fee.
The Court construes the Application liberally because Mr. Fowles is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not advocate
for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, this
action will be dismissed.
In the § 2241 Application, Mr. Fowles challenges the procedures used to deny
him vested good time credits as a violation of due process. (ECF No. 1, at 2). He asks
the Court to order Respondent to expunge Incident Report No. 2492696 and to restore
27 days of forfeited good time credits. (Id. at 5). In a “Motion for Exhausted
Administrative Remedies” (ECF No. 3), Mr. Fowles explains the factual basis of his due

process claim as follows:
Applicant . . . received an incident report for code 200 (escape from a nonsecure institution with subsequent voluntary return to Bureau of Prisons
Custody within four hours) and 307 (refusing to obey an order). The UDC
hearing was conducted beyond the time frame of 5 work days, allegedly
due to Annual Firearms Training. However, Jeff Krieger, Warden at F.C.I.
Pekin, Illinois, stated: “Although prior approval was not granted to extend
the UDC time frame for the UDC conducted September 22, 2013, for
incident report 2492696, I would have approved the delay at that time and
am approving it now.” See (Attachment ) dated August 20, 2014.
....
On September 5, 2014, the applicant received a Memorandum from K.
Nikes Discipline Hearing Officer (DHO) which stated: The above incident
report was remanded for reconsideration pursuant to an appeal. The
remand was based on the discipline packet not containing a warden’s
approval extending the UDC time frame. The Warden has approved the
UDC time frame retroactively. The original hearing is upheld.” See
(attachment 2), dated on September 5, 2014.
(ECF No. 3, at 1-2; see also id. at 4, 5). The September 5, 2014 Memorandum further
advises Applicant that he has 20 days to submit an Administrative Remedy Appeal to
the North Central Regional Office. (Id. at 5).
Mr. Fowles initiated this action on September 16, 2014, without first exhausting
his available administrative remedy. Exhaustion of administrative remedies is a
prerequisite to federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Garza v.
Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); Williams v. O’Brien, 792 F.2d 986, 987
(10th Cir. 1986) (per curiam). The exhaustion requirement is satisfied through proper
use of the available administrative procedures. See Woodford v. Ngo, 548 U.S. 81, 90
(2006) (discussing exhaustion of administrative remedies in the context of 42 U.S.C.
§ 1997e(a)). A federal court may deny a § 2241 application on the merits without
resolving the exhaustion question. See Montez v. McKinna, 208 F.3d 862, 869 (10th
Cir. 2000).
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Mr. Fowles claims in the Application that the warden’s approval extending the
UDC hearing time frame violated his due process rights under Wolff v. McDonnel, 418
U.S. 539 (1974).
“It 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.’” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811
(10th Cir. 2007) (applying law to federal prisoner) (quoting Mitchell v. Maynard, 80 F.3d
1433, 1444 (10th Cir.1996) (internal quotation marks and citation omitted)). However,
“[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 factfinder of
the evidence relied on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418
U.S. at 563-67).
Moreover, to comport with due process, there must be some evidence to support
a disciplinary conviction. Hill, 472 U.S. at 454. “Ascertaining whether this standard is
satisfied does not require examination 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.” Id. at 455-56. A
disciplinary board’s decision can be upheld by a reviewing court “even if the evidence
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supporting the decision is ‘meager.’” Mitchell, 80 F.3d at 1445 (10th Cir. 1996) (quoting
Hill, 472 U.S. at 457).
In the Application, Mr. Fowles does not contend that the procedural requirements
mandated by Wolff were not met in this case. Instead, he argues that the timing of his
UDC hearing did not comport with federal regulations. However, “a failure to adhere to
administrative regulations does not equate to a constitutional violation.” See Hovater v.
Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993) (citing Davis v. Scherer, 468 U.S.
183, 194 (1984)); see also Diaz v. McGuire, No. 05-3149, 154 F. App'x 81, 84-85 (10th
Cir. Nov. 14, 2005) (recognizing that prison regulations are “primarily designed to guide
correctional officials in the administration of a prison . . . not [ ] to confer rights on
inmates”; and stating that the process which is due is measured by the due process
clause). A review of an Applicant's disciplinary proceeding is “limited to whether the
three steps mandated by Wolff were followed and whether there was some evidence to
support the disciplinary committee's findings.” Mitchell, 80 F.3d at 1445. Wolff requires
only that Applicant be provided with advance written notice of the charges against him
within twenty-four hours prior to the disciplinary hearing. Wolff, 418 U.S. at 563-66.
Mr. Fowles does not dispute that he received written notice of the charges on
September 15, 2013, and that the DHO hearing was held on September 25, 2013. (See
Disciplinary Hearing Officer Report; ECF No. 3, at 11). As such, the Wolff requirement
was met. Mr. Fowles does not allege any other procedural deficiencies in his prison
disciplinary proceeding and the DHO Report reflects that the due process requirements
of Wolff and Hill were satisfied. (Id. at 11- 14). Accordingly, the due process claim will
be denied.
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In the Application, Mr. Fowles also seeks “[a] quantum change in his level of
custody back to minimum custody.” (ECF No. 1, at 3). A federal inmate’s challenge to
his custody classification implicates the conditions of his confinement and must be
brought in an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). See Boutwell v. Keating, 399 F.3d 1203, 1209 (10th
Cir. 2005) (stating that a “challenge to a transfer from one security level to another or
from one prison to another is cognizable [in a civil rights action]”); Stank v. Quay, No.
09-1214, 356 F. App’x 208 (10th Cir. Dec. 16, 2009) (unpublished). Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1), filed by Applicant Dwayne Fowles, on September 16, 2014,
is DENIED. The due process claim asserting an untimely UDC procedure is
DISMISSED WITH PREJUDICE. Mr. Fowles’ claim challenging his security
classification is DISMISSED WITHOUT PREJUDICE. Applicant may initiate a civil
rights action to assert the security classification claim, but he must pay the applicable
$400.00 filing fee, or file a Prisoner’s Motion and Affidavit to Proceed Pursuant to 28
U.S.C. § 1915. It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Fowles files a notice of appeal he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United
States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24.
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DATED September 26, 2014, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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