Farrakhan-Muhammad v. Fox
Filing
31
ORDER Denying Application for a Writ of Habeas Corpus. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 9 is DENIED and this case is DISMISSED with prejudice. Leave to proceed in forma pauperis on appeal is denied, by Judge Philip A. Brimmer on 1/31/18. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02272-PAB
Q. ILI-YAAS H. FARRAKHAN-MUHAMMAD, 1
Applicant,
v.
JACK FOX, Complex Warden,
Respondent.
ORDER DENYING APPLICATION FOR A 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. 9] filed pro se by Applicant, Q. IliYaas H. Farrakhan-Muhammad on October 27, 2016. On December 23, 2016, the
Court issued an order, Docket No. 19, directing Respondent to show cause why the
Application should not be granted. Respondent filed a Response to Order to Show
Cause, Docket No. 25, on January 31, 2017. On February 16, 2017, Applicant filed a
Traverse/Reply. Docket No. 27. Having considered the same, the Court will deny the
Application and dismiss the action for the reasons discussed below.
1
The Court notes that Mr. Q. Ili-Yaas H. Farrakhan-Muhammad, Inmate Register #
02791-088, is the same person as Christopher Mitchell, Q Ili-Yaas Haakeem FarrakhanMuhammad, C. Eli-Jah Hakeem Muhammad, Elijah Hakeem Muhammad, and Caliph IliYas Az-Hakeem Muhammad. The Court further notes that Applicant is identified by the
Federal Bureau of Prisons as Q Ili-Yaas Haakeem Farrakhan-Muhammad.
I. BACKGROUND
Applicant is a federal prisoner in the custody of the Bureau of Prisons (“BOP”)
currently incarcerated at the United States Penitentiary, Administrative Maximum, in
Florence, Colorado. On September 7, 2014, Applicant received an incident report
charging him with assault, in violation of Code 224. Docket No. 25-3 at 8; BeickerGallegos Decl., Docket No. 25-1, ¶ 9. The incident was described as follows:
On September 7th, 2014 at approximately 11:57 a.m. I C/O M. Ross was
feeding E-Unit upper B range. When we go to I/M Farrakhan, Qili-Yass
cell he was observed shaking a bottle. C/O J. Hill felt was unsafe to open
the cell door at that time so we continued to feed the range. Upon
returning to I/M Farrakhan’s cell he no longer appeared to have a bottle.
The cell door was cracked in order to feed I/M. When the door was
cracked I/M Farrakhan said ‘if you set those trays in you know what time it
is Ross.’ I/M then threw what appeared to be a unknown clear liquid at
me, striking me in the lower left hand and upper left shoulder. I sustained
no injuries. Operations Lt. was notified and no further incident.
Id.
The incident report was referred to the Federal Bureau of Investigation (“FBI”) for
further investigation. Docket No. 25-3 at 10-11; Beicker-Gallegos Decl., ¶¶ 10-11. The
FBI declined criminal prosecution and returned the incident to the BOP for institutional
processing. Id. On September 13, 2014, Applicant was advised of his rights regarding
the disciplinary process and given the opportunity to make a statement. Id. at 8-9;
Beicker-Gallegos Decl., ¶ 12. Applicant denied the charge and told the investigating
officer that “I didn’t assault any officer. I didn’t have any water in my hand.” Id.
Applicant received a copy of the incident report the same day. Id.; Beicker-Gallegos
Decl., ¶ 12.
On September 15, 2014, the Unit Disciplinary Committee (“UDC”) conducted a
2
hearing and referred the charge against Applicant to a Discipline Hearing Officer
(“DHO”) for further hearing. Docket No 25-3 at 8; Beicker-Gallegos Decl., ¶ 14.
Applicant received a copy of the Notice of Discipline Hearing and written notice of his
rights at the DHO hearing. Id. at 12-14; Beicker-Gallegos Decl., ¶ 14. Applicant
requested Mr. Thomas as his staff representative and asked to call two staff members
as witnesses at the hearing. Id. at 13; Beicker-Gallegos, Decl., ¶ 16.
On December 10, 2014, a DHO conducted Applicant’s hearing on the incident
report. Docket No. 25-3 at 2; Beicker-Gallegos Decl., ¶ 17. At the hearing, Applicant
stated he understood his rights and accepted staff representation by Mr. Haywood
because Mr. Thomas could not serve as Applicant’s staff representative “due to a shift
conflict” and Mr. Wacker was not available since he no longer worked at the facility. Id.
at 5, 25; Beicker-Gallegos Decl., ¶¶ 16-18. Mr. Haywood stated that he had spoken to
an inmate “who indicated [Applicant] did not throw anything on the staff,” but that he
was unable to obtain a statement from two other inmates whom Applicant had
requested as witnesses because one “did not want to make a statement” and the other
had been “transferred out of this institution.” Id. at 2; Beicker Gallegos Decl., ¶ 18. Mr.
Haywood further stated that he “made efforts” to review video of the incident as
requested by Applicant, but “due to the passage of time, video no longer exists.” Id.
Applicant also submitted the following written statement on his behalf:
1. l/M Farrakhan-Muhammad dispute the description of the incident on
Sept. 7th. M. Ross. ADX-C.O. said that he observed I/M FarrakhanMuhammad shaking a bottle and J. Hill, ADX-C.O., felt it was unsafe to
open the cell door. 2. The E04-range surveillance tape can show that
the cell door was open to placed foodtrays in sallyport due to I/M
Farrakhan-Muhammad being on a hunger strike. 3. The E04-range
3
surveillance tape can also show that the foodtrays was placed outside
of his cell after l/M Farrakhan-Muhammad threaten to commit suicide
with a bed sheet tied around his neck and a bottle of
Hyopocholothiazine pills, the bottle M. Ross, ADX-C.O. observed
seeing. 4. l/M Farrakhan-Muhammad disputes the description of the
incident on Sept. 7th that M. Ross, ADX-C.O. stating that he was
struck on the left hand and shoulder with a unknown clear liquid. 5.
The E04-range surveillance tape can show that he placed the
foodtrays in the sallyport with his right hand and not with his left
hand as he claimed. 6. Why will M. Ross, ADX-C.O. force to put
foodtrays in the sallyport knowing that l/M Farrakhan-Muhammad had a
sheet around his neck and a bottle of prescription medication in his hand
threaten to commit suicide if the foodtrays were to be placed in sallyport.
7. M. Ross, ADX-C.O. and J. Hill, ADX-C.O. were trying to provoke
and encourage I/M Farrakhan-Muhammad to commit suicide by
placing foodtrays in sallyport and lied to cover-up their ongoing staff
misconduct and mistreatment toward l/M Farrakhan-Muhammad by
writing bogus incident report to cover-up their abuses. 2: C.F.R. 541.4
Violations: the untimeliness serving of the incident report without out a
memo delay violates the 24-hour serving of the written notice in 2:
C.F.R. 541.5, and procedural due process as set forth in the Wolff
protection. 2: C.F.R. 541.6(F)(1): I/M Farrakhan-Muhammad request
again to be examine by the ADX-Psychology Services Department if
he were competent at the time of the Sept. 7th incident and if he
mentally competent to be seen and heard by the ADX-D.H.O. 2:
C.F.R. 541.8(F)(1): l/M Farrakhan-Muhammad request for E04-range
surveillance tape to be introduce as exculpatory evidence and viewed
by L. Thomas, ADX, L.T. requested staff representative with S.
Beicker-Gallegos, ADX-D.H.O. at the DHO hearing. 2:C.F.R.
541(F)(2)(4) Staff witnesses: Mr. Beynum, ADX-C.O., H. Boehm, ADXClinical Psychologist, F. Davis, ADX-Clinical Psychologist, Mrs.
Moody-ADX Clinical Psychologist. Inmate witnesses: J. Pinson, J.
Currence, I. Harris, Jr. 28 C.F.R. 541(d). Staff Representative L.
Thomas, ADX-Lieutenant. Conclusion. For the forgoing reason above l/M
Farrakhan-Muhammad request that the ADX-D.H.O. totally expunge of
any reference to incident report #2626183 from his chronological
disciplinary record due to no reliable evidence and insufficient evidence to
support any finding that l/M Farrakhan-Muhammad committed BOPprohibited act Code #224.
Docket No. 25-3 at 3; Beicker-Gallegos Decl., ¶ 19.
In her written report, the DHO noted that, while Applicant requested four staff
4
members as witnesses, these individuals were not called during the hearing because
their testimony was “irrelevant” since they were not present during the incident on
September 7, 2014. Docket No. 25-3 at 3; Beicker-Gallegos Decl., ¶ 19. Applicant’s
request for three inmate witnesses also was denied for security reasons and the
unavailability of one inmate who had been transferred out of the facility. Id. at 3-4.
The DHO also noted that, although video footage of the incident had not been
preserved, Mr. Thomas had reviewed the video and provided a statement indicating that
he was unable to see inside the sallyport of Applicant’s cell and did not witness any
substance being thrown out of the sallyport. Docket No. 25-3 at 6, 23. The DHO found
that Mr. Thomas’ description of the events occurring on-camera was “consistent with the
events described by both staff members” who had witnessed and reported the incident.
Id. at 6.
The DHO further determined that any delay in processing Applicant’s incident
report was because of its referral to the FBI and such delay did not hamper Applicant’s
ability to prepare a defense. Docket No. 25-3 at 6. Lastly, the DHO noted that
Psychology Services staff had concluded that Applicant was “competent and
responsible for [his] actions.” Id.
At the conclusion of the hearing, the DHO found, based upon the greater weight
of the evidence, Applicant was guilty of the prohibited act of assault without serious
injury (Code 224) for throwing an unknown, clear liquid substance on prison staff.
Docket No. 25-3 at 6; Beicker-Gallegos Decl., ¶ 20. Applicant was sanctioned with 27
days loss of good conduct time, 30 days of disciplinary segregation to be suspended
5
pending 90 days of clear conduct, and 90 days loss of commissary, visiting, and
telephone privileges. Id. at 6-7; Beicker-Gallegos Decl., ¶ 21. Applicant received a
copy of the DHO’s written findings and conclusions on January 30, 2015. Id. at 7;
Beicker-Gallegos Decl., ¶ 22.
On October 27, 2016, Applicant filed the § 2241 Application in this action. Based
on an alleged deprivation of his due process rights in the disciplinary process, he
asserts the following five claims:
(1) the DHO did not consider his “mental condition” or “mental state” at
the time of the incident in violation of 28 C.F.R. 541.6;
(2) his staff representative was inept by “refusing to seek a inmate
witness statement” in violation of 28 C.F.R. 541.8(d);
(3) “the spoliation of the timely requested surveillance videotape footage
as exculpatory evidence” was prejudicial in violation of 28 C.F.R. 541.8(f);
(4) the DHO was biased against him in violation of 28 C.F.R. 541.8(b);
and
(5) there was insufficient evidence to support his disciplinary conviction.
Docket No. 9 at 2-8. For relief, Applicant requests that his disciplinary conviction and
loss of good-conduct time “be set aside.” Id. at 9.
Respondent counters in the Response that there is some evidence in the record
to support the DHO finding that Applicant was guilty of assault without serious injury.
Docket No. 25 at 5. Respondent further contends that Applicant’s “mental state” was
considered because he had been evaluated and determined competent by a staff
psychologist. Id. Respondent also concludes that, “although video during the incident
was unavailable, an officer who observed the video provided evidence that the footage
6
did not provide a view of Applicant’s sallyport, where the food tray was placed and liquid
thrown.” Id.
In the Reply, Applicant “denies” the assertions in the Response and argues that
he was “not afforded the protective regulatory rights” concerning a mental health
examination to determine competency in connection with his disciplinary proceedings.
Docket No. 27 at 1-2. He further claims that his staff representative “refused to provide
him effective assistance in his defense; that the “surveillance video footage would have
supported his defense”; that the DHO was biased and predisposed toward a finding of
guilt; and that “there was relevant evidence in the disciplinary record that there were
insufficient evidence for any rational fact-finder to find the pro se Applicant had the
intent to attempt to violate prohibited Act Code #224A due to a greater weight of the
evidence.” Id. at 2-3.
II. LEGAL STANDARDS
A. § 2241 Actions
The writ of habeas corpus is available if a prisoner “is in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. ' 2241(c)(3). A
habeas proceeding is Aan 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.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). A ' 2241 application must be filed in
the district where the prisoner is confined. Bradshaw v. Story, 86 F.3d 164, 166 (10th
Cir. 1996). Prison disciplinary proceedings that result in the deprivation of good-time
7
credits may be challenged in a ' 2241 proceeding. McIntosh, 115 F.3d at 811-12.
B. Pro Se Litigant
Applicant is proceeding pro se. The Court, therefore, Areview[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.@ Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However,
a pro se litigant’s Aconclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.@ Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The Court may not assume that Applicant can prove facts
that have not been alleged, or that Respondent has violated laws in ways that Applicant
has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle the litigant to an
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
C. Due Process
“[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, “[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
8
(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. Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff,
418 U.S. at 563-67). In addition, “revocation 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. at 565 (internal
citation and quotation marks omitted). Review under the some evidence standard “does
not require examination of the entire record, independent assessment of the credibility
of witnesses, or weighing of the evidence.” Howard, 487 F.3d at 812 (quoting Hill, 472
U.S. at 455). “A disciplinary board’s decision can be upheld . . . even if the evidence
supporting the decision is meager. Id. (internal quotation marks omitted). Finally, the
decisionmaker also must be impartial. See Gwinn v. Awmiller, 354 F.3d 1211, 1219
(10th Cir. 2004) (citing Wolff, 418 U.S. at 592) (Marshall, J., concurring) (stating that “an
impartial decisionmaker is a fundamental requirement of due process” that is “fully
applicable” to disciplinary hearings for prisoners).
III. ANALYSIS
A. Mental Health Examination
Applicant asserts in claim one that his mental condition or state was “at issue,”
but was not considered by the DHO in violation of BOP regulation, 28 C.F.R. § 541.6.
Docket No. 9 at 5. Respondent alleges Applicant was seen by a mental health clinician
9
that diagnosed Applicant with a characterological disorder, which did not render him
incompetent or not responsible for his actions. See Docket No. 25 at 2, n.1; Docket No.
25-3 at 26.
The BOP regulation that Applicant relies on 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.
28 C.F.R. § 541.6.
Upon review of the record, the Court finds that F. Davis, Psy.D. authored an
“IDC/UDC Mental Health Evaluation” concerning Applicant’s competency to understand
the nature of the disciplinary proceedings and to assist in his defense and his
responsibility for his conduct at the time of the incident on September 7, 2014. Docket
No. 25-3 at 35; Beicker-Gallegos Decl., ¶ 15. In the psychological findings section, Dr.
Davis wrote as follows:
Mr. Farrakhan does not have a mental health diagnosis that would render
him unable to aid in his own defense during the disciplinary process. He
is aware of the charges against him. He has been involved in the
disciplinary process in the past. He appears to have good understanding
of the process and his rights as evidenced by the inmate requesting a
10
psychological evaluation and making a true attempt at having the incident
report dismissed. There have been no indications of a break in reality
during the noted timeframe.
....
Mr. Farrakhan is diagnosed with Borderline Personality Disorder and
Mood Disorder in Condition Classified Elsewhere by Health Services.
Borderline Personality Disorder is a characterological disorder and does
not render one unable to understand and appreciate the nature, quality or
wrongfulness of his acts at the time of the incident. Mood Disorder in
Condition Classified Elsewhere is a disorder indicating mood concerns
and mood lability. Though possibly problematic, it also does not render
one unable to understand and appreciate the nature, quality, or
wrongfulness of his acts at the time of the incident without a break from
reality noted. The other provisional diagnoses discussed above also do
not render one unable to understand and appreciate the nature, quality or
wrongfulness of his acts at the time of the incident. As no break from
reality is noted, inmate should be deemed responsible.
Id.
In her written report, the DHO noted that she “considered the IDC/UDC Mental
Health Evaluation from F. Davis, Psy.D., which indicates you are competent and
responsible for your actions.” Docket No. 25-3 at 5. In conclusion, she reiterated that,
“[i]n relation to your request for a psychological evaluation, the DHO reminds you, as
noted above, that according to Psychological Services staff you have been determined
to be competent and responsible for your actions.” Id. at 6.
In the Reply, Applicant claims that he was denied the right to an “in-person
examination with his therapist to determine at the time responsible for his conduct and
competent to participate at the December 9, 2014 disciplinary proceedings.” Docket
No. 27 at 1. He further contends that the “written IDC/UDC Mental Health Evaluation
documentation does not satisfy 28 C.F.R. 541.6(a) or procedural due process
11
protections.” Id. This argument is without merit.
“Prison regulations are primarily designed to guide correctional officials in the
administration of a prison. [They are] not designed to confer rights on inmates.” Sandin
v. Conner, 515 U.S. 472, 481-82 (1995); see also Diaz v. McGuire, 154 F. App’x 81, 8485 (10th Cir. 2005) (unpublished) (stating that prison regulations are not designed to
confer rights on inmates, and the process which is due is measured by the due process
clause). Thus, “a 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)
(citing Davis v. Scherer, 468 U.S. 183, 194 (1984)). The Court’s review of 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. As such, even if prison officials deviated from BOP
regulations in the administration of Applicant’s mental health evaluation, the Court
cannot conclude that he was denied due process based solely on the failure to follow
particular federal regulations and directives.
Moreover, even if the BOP regulation, 28 C.F.R. § 541.6, was considered a
minimum due process requirement, it was not violated in Applicant’s case. The Code of
Federal Regulations delegates to the UDC and DHO the determination of whether an
inmate involved in disciplinary proceedings is competent to participate and responsible
for his conduct. See 28 C.F.R. § 541.6(a), (b). The competency and responsibility
findings are to be made “based on evidence, including evidence presented by mental
health staff.” Id.
12
Here, the DHO highlighted in her written decision that Dr. Davis had conducted a
psychological evaluation in response to Applicant’s request for a mental health
examination in connection with the September 7, 2014 incident and disciplinary
proceedings. Docket No. 25-3 at 6, 26; Beicker-Gallegos Decl., ¶¶ 14-15. Dr. Davis
provided the DHO with an IDC/UDC Mental Health Evaluation stating that Applicant was
competent to participate in the disciplinary process and responsible for his conduct at
the time of incident. Id. at 35. The DHO’s finding of competency and responsibility,
which is based on Dr. Davis’ evaluation and clinical opinion of Applicant, is conclusive in
this matter. In other words, to the extent 28 C.F.R. § 541.6 establishes a due process
right to a mental health examination during disciplinary proceedings, based on the
above findings, the requirement was satisfied during Applicant’s discipline process.
Applicant’s first claim, therefore, lacks merit and will be denied.
B. Staff Representative
In claim two, Applicant states that his staff representative was inept by “refusing
to seek a inmate witness statement” in violation of BOP regulation, 28 C.F.R.
§ 541.8(d). Construing the allegations liberally, Applicant appears to argue that his
ability to prepare a defense at the DHO hearing was impaired by his staff
representative.
A prisoner does not have a general constitutional due process right to have a
staff representative assist him during the disciplinary process. Wolff, 418 U.S. at 570;
see also Smith v. Maschner, 899 F.2d 940, 946 (10th Cir. 1990) (holding that prisoner
was not constitutionally entitled to counsel at prison disciplinary hearing). Rather, due
13
process requires the aid of a staff representative only “[w]here an illiterate inmate is
involved” or “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.” Wolff, 418 U.S. at 570. See also Jordan v. Wiley, 411 F. App’x 201, 209 (10th
Cir. 2011) (unpublished) (holding that inmate had no viable due process claim about
quality of assistance he received from staff representative where inmate was not
illiterate and issues were not so complex that he was unable to collect and present
evidence necessary for adequate comprehension of his case); Duarte v. Turner, 1995
WL 57187 at *3 (7th Cir. 1995) (unpublished) (rejecting habeas claim that staff
representative was ineffective for failing to discover evidence).
Here, there is no indication that the issues were complex or that Applicant was
illiterate. Further, the record demonstrates that Applicant requested and was provided
with a staff representative to assist him, and that the staff representative obtained
statements from requested witnesses and appeared at the DHO hearing. See Docket
No. 25-3 at 2-6; Beicker-Gallegos Decl., ¶¶ 16, 18. Applicant has failed to demonstrate
a deprivation of his due process rights regarding the quality of assistance he received
from the staff representative in conjunction with his prison disciplinary proceedings. As
such, Applicant is not entitled to federal habeas relief on claim two.
C. Exculpatory Evidence
Applicant next claims that he was denied the opportunity to present exculpatory
evidence because of “the spoliation of the timely requested surveillance videotape
footage” in violation of BOP regulation, 28 C.F.R. 541.8(f).
14
In Howard v. U.S. Bureau of Prisons, the Tenth Circuit determined that an
inmate’s due process rights were violated where the DHO refused the inmate’s request
that he review a videotape of the incident before imposing disciplinary sanctions; there
was no suggestion that producing the videotape would be unduly hazardous to
institutional safety or correctional goals; and it was not clear that the refusal to review
the videotape was harmless. 487 F.3d at 814-15. The Tenth Circuit concluded that
"[t]he DHO’s unjustifiable refusal to produce and review [the videotape that recorded the
incident] deprived Mr. Howard of the process due him." Id. at 814.
This case is factually distinguishable from Howard, where prison officials denied
the inmate’s request for staff to review the videotaped records of the incident, and,
therefore, evidence of the contents of the video was not presented at the DHO hearing.
See Howard, 487 F.3d at 810-11, 813-14. By contrast, in Applicant’s disciplinary
proceeding, a prison official did review video footage that recorded the incident and
summarized its contents in a written statement that was considered by the DHO. See
Docket No. 25-3 at 5-6, 22-23. As such, there was not a complete failure to "produce
and review" the video footage, which would trigger a due process violation under
Howard. See, e.g., Pinson v. Daniels, Case No. 12-cv-03006-RM, 2014 WL 984907, at
*9 (D. Colo. Mar. 13, 2014) (unpublished) (distinguishing petitioner’s claim from Howard
because “the videotape was produced, the investigating officer reviewed the tape, and
he provided a statement regarding the details of what he saw for consideration by the
DHO”).
15
In another case, a prisoner claimed that his due process rights were violated
when he was convicted of a disciplinary offense based on a BOP staff member’s
summary of the videotaped footage of the incident because the DHO denied the
prisoner’s request to review the videotape and play it at the disciplinary hearing.
Deberry v. Berkebile, No. 13-cv-01926-RBJ, 2014 WL 1100184, at *2-3 (D. Colo. Mar.
17, 2014) (unpublished). In Deberry, District Judge R. Brooke Jackson granted habeas
relief concluding that the refusal to allow the petitioner to review the video footage was
in error, where the respondent conceded that there was no undue hazard to institutional
safety or correctional goals in permitting the petitioner to view the particular footage at
issue, and the respondent could not demonstrate that the constitutional error was not
harmless. Id. at *3.
Unlike the circumstances in Deberry, the record demonstrates that any error
resulting from “spoliation” of the video footage of the incident prior to Applicant’s
disciplinary hearing was harmless. After the DHO was advised that video of the
September 7, 2014 incident had not been preserved, the DHO contacted Mr. Thomas
because Applicant alleged that Mr. Thomas had previously reviewed video footage from
the incident. Docket No. 25-3 at 22-24, 27. Mr. Thomas initially responded that he had
watched the video, but that it did not provide a view into Applicant’s sallyport. Id. at 23.
The DHO requested additional information about what was captured by the video
recording, and Mr. Thomas provided the following written statement:
Maam, I saw staff feeding the range as normal. I did not see anything out
of the order. The Officer fed one door at a time. They went past his cell at
16
first then came back to it. When they fed his cell, Officer Ross placed the
food trays in his sallyport. I did not see anything come out of his sallyport.
Id. at 22.
The DHO determined that the video footage did not provide exculpatory evidence
in Applicant’s defense because it did not have a view into Applicant’s sallyport and the
statement made by Mr. Thomas was “consistent with those made by both reporting staff
members.” Docket No. 25-3 at 6. As such, the video was reviewed and the content of
the video was presented and considered during the disciplinary hearing. The Court
concludes that any failure to preserve the video footage for viewing during Applicant’s
hearing was harmless because it would not have affected the outcome of the DHO’s
decision. Accordingly, Applicant cannot prevail on claim three.
D. Impartial Decision-Maker
Next, Applicant contends he was denied due process because the DHO was
biased against him in violation of BOP regulation, 28 C.F.R. § 541.8(b).
“An impartial decisionmaker is a fundamental requirement of due process that is
fully applicable in the prison context.” Gwinn, 354 F.3d at 1220 (internal quotations
omitted). However, “honesty and integrity are presumed on the part of a tribunal.” Id.
Therefore, “there must be some substantial countervailing reason to conclude that a
decisionmaker is actually biased with respect to factual issues being adjudicated.” Id.
“Due process is violated only when the risk of unfairness is intolerably high under the
circumstances of a particular case.” Id. (internal quotations omitted).
Applicant’s conclusory allegation that the DHO had a predisposition toward a
finding of guilt is insufficient to demonstrate a denial of due process. Further, there is
17
nothing in the record to suggest that the DHO was involved “in the investigation or
prosecution of the particular case, or . . . had any other form of personal involvement in
the case.” Wolff, 418 U.S. at 592 (Marshall, J., concurring) (describing the minimum
requirements of due process in a disqualification claim). Even if a DHO once before
concluded that an inmate was guilty of the charged offense, this fact does not, without
more, demonstrate a high risk of unfairness. See, e.g. Brown v. Rios, 196 F. App’x 681,
684 (10th Cir. 2006) (unpublished) (concluding that habeas petitioner’s claim that DHO
was biased because petitioner had previously named the DHO as a defendant in a
separate civil lawsuit, did not, without more, rise to a constitutional violation).
Consequently, Applicant has failed to demonstrate with specific factual
allegations that the DHO was biased against him in violation of his due process rights.
Applicant, therefore, is not entitled to relief with respect to claim four.
E. Sufficiency of the Evidence
Applicant finally maintains that there was insufficient evidence to support his
disciplinary conviction in violation of due process.
In the written report, the DHO provided a detailed overview of the evidence she
relied on in finding that Applicant “committed the prohibited act of Assault Without
Serious Injury, Code 224, based on your actions of throwing an unknown, clear liquid on
the reporting staff member.” Docket No. 25-3 at 5; Beicker-Gallegos Decl., ¶ 20.
Specifically, the DHO cited the following evidence:
•
the incident report;
•
supporting memoranda and written statements from other prison staff
members who witnessed the incident either in-person or on-camera;
18
•
Applicant’s mental health evaluation;
•
Applicant’s verbal and written statements; and
•
information provided by Applicant’s staff representative, including an
inmate witness statement that Applicant did not throw anything on prison
staff.
Id. at 5-6.
AAscertaining whether the [some evidence] 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.@ Hill, 472 U.S. at 455-56. A disciplinary
board=s decision can be upheld by a reviewing court Aeven if the evidence supporting
the decision is >meager.=@ Mitchell, 80 F.3d at 1445 (quoting Hill, 472 U.S. at 457).
The record shows that the DHO relied upon the incident report, memoranda from
two staff members who witnessed the incident, and written statements by a staff
member who reviewed video of the incident; all of which constitute evidence supporting
her decision. See Docket No. 25-3 at 5-6, 19-23; Beicker-Gallegos Decl., ¶ 20. Further,
Applicant did not present any exculpatory evidence to refute the DHO’s finding that he
was guilty of the charged offense. The DHO’s determination that the reporting staff
members were more credible than Applicant and another inmate witness is not
reviewable by the federal habeas court. See Hill, 472 U.S. at 455-56.
The Court concludes that statements in the incident report and other memoranda
submitted constitute “some evidence” sufficient to support the disciplinary conviction of
assault without serious injury. See e.g., Ruelas v. Zuercher, 240 F. App’x 796, 797
19
(10th Cir. 2007) (unpublished) (holding that an incident report alone constitutes Asome
evidence@ of the inmate=s guilt). Accordingly, Applicant cannot prevail on his due
process claim challenging the sufficiency of the evidence, and claim five will be denied.
IV. ORDERS
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 [Docket No. 9] is DENIED and this case is DISMISSED with prejudice. It
is further
ORDERED that leave to proceed in forma pauperis on appeal is denied. 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 and therefore in forma pauperis status will be denied for the
purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant
files a notice of appeal he also must 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.
DATED January 31, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
20
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?