Farrakhan-Muhammad v. Fox

Filing 18

ORDER. Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 1 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 4/16/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-00655-PAB
Q. ILI-YAAS H. FARRAKHAN-MUHAMMAD, 1
Applicant,
v.
JACK FOX, Complex Warden,
Respondent.

ORDER ON APPLICATION FOR
WRIT OF HABEAS CORPUS

I. BACKGROUND
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, filed pro se by Applicant, Q. IliYaas H. Farrakhan-Muhammad. On April 27, 2017, the Court issued an order, Docket
No. 11, directing Respondent to show cause why the Application should not be granted.
Respondent filed a Response to Order to Show Cause, Docket No. 13, on May 17,
2017. On May 31, 2017, Applicant filed a Traverse/Reply, Docket No. 14.
Applicant, a federal prisoner in the custody of the Federal Bureau of Prisons
(“BOP”), currently is incarcerated at the United States Penitentiary, Administrative
Maximum, in Florence, Colorado. On February 20, 2015, Applicant received Incident
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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
Farrakhan-Muhammad, C. Eli-Jah Hakeem Muhammad, Elijah Hakeem Muhammad,
and Caliph Ili-Yas Az-Hakeem Muhammad. The Court further notes that Applicant is
identified by the Federal Bureau of Prisons as Q Ili-Yaas Haakeem FarrakhanMuhammad.

Report (“IR”) No. 2674280, which charged him with assault without serious injury in
violation of Code 224. Docket No. 13-4 at 2 (Disciplinary Hearing Officer Report). The
reporting officer described the incident as follows:
On January 22, 2015 at 7:10 AM I was attempting to feed inmate
Farrakhan-Muhammad, Q Ili Yaas Reg. No. 02791-088 while he was in
the medical observation cell. After calling several times for inmate
Farrakhan to step to the door to get his trays and no response, I
proceeded to place the trays through the slot and on the floor when inmate
Farrakhan stated, “stop fucking with me.” Inmate Farrakhan then got up,
grabbed the trays, and threw them back out the trays slot. The trays
struck my right hand. I secured the tray slot without further incident.
Id. at 6 (Incident Report).
The incident report was referred to the FBI for further investigation. Docket No.
13-4 at 7-8. The FBI declined criminal prosecution and returned the incident to the BOP
for institutional processing on February 20, 2015. Id. Applicant was advised of his
rights on February 20 and given the opportunity to make a statement. Id. at 7.
Applicant declined to make a statement. Id. Applicant received a copy of the incident
report the same day. Id. at 6.
On February 23, 2015, the Unit Disciplinary Committee (“UDC”) conducted a
hearing and, as a result of the hearing, referred the charge against Applicant to a
Discipline Hearing Officer (“DHO”) for final disposition. Docket No 13-4 at 8. The DHO,
however, returned the report to the UDC because the requested staff representatives
were unavailable and errors were found on the submitted documents. Id. The warden
found that there was good reason for the delay in processing the incident report and the
delay did not hinder Applicant’s ability to marshal a defense. Id.

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On March 18, 2015, a second UDC hearing was held, at which time Applicant
received a Notice of Discipline Hearing and the Inmate Rights at Discipline Hearing
form. Docket No. 13-4 at 26-27. Applicant requested either Lieutenant Thomas or
Lieutenant Martin as his staff representative. Id. at 26. Applicant also asked to call
Lieutenant Conley as a witness because he had taken photos of the food trays at the
time of incident. Id.
On April 27, 2015, a DHO conducted Applicant’s hearing on IR No. 2674280.
Docket No. 13-4 at 2. At the hearing, Applicant was represented by Lieutenant
Thomas. Id. Lieutenant Thomas’s statement at the hearing is summarized as follows:
Staff Representative Thomas advised he spoke with inmate
Farrakhan-Muhammad. Representative Thomas indicated inmate
Farrakhan-Muhammad requested he review video of the incident.
Representative Thomas advised, on the day of the incident, he recalled
requesting Lt. Alvarez preserve the video of the incident. According to the
staff representative, Lt. Alvarez advised there was never video of the
incident recorded.
Id.
During the hearing, Applicant stated to the DHO that “[t]he staff called me by
another name, Mitchell. When I didn’t answer to that name, he threw the trays through
the slot onto the floor. I didn’t throw them back out. I told him to stop playing with me.
All four trays didn’t come through the slot. One was on the slot, and I set it back out
there. I didn’t throw it.” Docket No. 13-4 at 2.
The DHO’s written report in part is as follows:
The DHO finds you committed the prohibited act of Assault Without
Serious Injury, Code 224, based on your actions of throwing your food
trays back out of the slot striking the reporting staff member in the hand.
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The DHO bases this finding on the incident report writer’s statement in
Section 11, which indicates you assaulted him while he attempted to
provide you with food trays in the medical observation cell. According to
the reporting staff member, he advised you several times to step to the
door to get your food trays. According to the staff member, you did not
respond, so he placed your trays through the slot and on the floor.
According to the reporting staff member, you then stated, “stop fucking
with me,” grabbed the trays and threw them back out of the slot. The
reporting staff member advises the trays struck him in the right hand. The
DHO considered the supporting memorandum from Health Services
Assistant S. Mills who confirms the events described in the disciplinary
infraction. The DHO also considered the photograph and Staff Injury
Assessment of the reporting staff member as well as your photograph and
the photograph of at least parts of two food trays. The DHO considered
your photograph, Bureau of Prisons Health Services Clinical Encounter,
and you [sic] IOC/UDC Mental Health Evaluation. According to your
mental health evaluation, you were determined to be competent and
responsible for your actions on January 22, 2015. In addition to the
documentation above, the DHO considered your Inmate Chronological
Record which reveals you have a history of violations of Code 224,
Assault Without Serious Injury.
During the IDC process, you elected not to make a statement. During
your UDC hearing, you provided a four (4) page written statement. You
indicated you believe the incident report should be expunged due to your
participation in a hunger strike which you allege impaired your mental
abilities. During your DHO hearing, you stated, “The staff called me by
another name, Mitchell. When I didn't answer to that name, he threw the
trays through the slot onto the floor. I didn't throw them back out. I told him
to stop playing with me. All four trays didn't come through the slot. One
was on the slot, and I set it back out there. I didn’t throw it.” Prior to your
DHO hearing, you provided the DHO with a handwritten statement. In
your statement, you again express the information described above as
well as your contention the reporting officer provoked you and retaliated
by writing the disciplinary infraction. . . . In reference to your contention
regarding the events, the DHO can find no apparent reason why the
reporting staff member would falsify the document whereas you have
reason to be less than truthful about the events to avoid the
consequences of engaging in misconduct. The DHO also noted your
contention of retaliation by the staff member. The DHO advises your
allegation of staff misconduct has been referred to the appropriate
authority. However, you are advised this is only an allegation and may not
be investigated at this level. The DHO also finds it reasonable to believe
you are attempting to redirect attention away from your actions. More
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specifically, the DHO notes initially, you indicated you believed the report
should be expunged based on mental impairment. However, you later
argue the staff member wrote the report out of retaliation. The DHO finds
those varying statements to be an effort to redirect the attention away from
your actions. The DHO did note your contention regarding the location of
the trays and your request for video as well as testimony of the officer who
photographed the food trays. The DHO advised you, by your own
admission, there were four food trays provided on the day of the incident.
The photograph provided only the location of at least part of two of those
trays. Although the other two trays were not photographed, the DHO
notes per the supporting memorandum provided by witnessing staff
member, S. Mills, immediately following the incident, she secured your
food slot and helped in picking up the items on the floor in front of your
observation room. The DHO notes, it is reasonable to believe the only
trays photographed were the trays which remained near the inside
entrance of your cell as the other trays and food items had already been
cleared from the area when the photograph was taken. The DHO
addressed your request for video by temporarily postponing the hearing to
contact the SIS Lieutenant. According to SIS Lieutenant Alvarez, there
was never video of the incident recorded.
Docket No. 13-4 at 3-4.
Applicant asserts he was deprived of his due process rights in the disciplinary
proceeding for IR No. 2674280. Specifically, Applicant contends there was no
corroborating evidence in the disciplinary record supported by “competent, material and
substantial evidence corroborative substantive evidence.” Docket No. 1 at 4. Applicant
further contends that there is conclusive evidence that the reporting officer was the
“investigator and perpetrator of the aggression and malfeasance towards the pro se
Applicant” and retaliated against Applicant for “asserting his 1st Amendment rights to
engage in hunger striking” and that the reporting officer wrote the incident report to
“cover-up” his “egregious misconducts [sic] and unprofessional behavior.” Id. at 5. For
relief, Applicant requests that the Court hold an evidentiary hearing and void the April
27, 2017 disciplinary ruling. Id. at 7.
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Respondent counters that there is some evidence in the record to support the
DHO finding that Applicant was guilty of assault without serious injury. Docket No. 13 at
5. Respondent further contends the incident report and the staff memoranda plainly
support the disciplinary decision that Applicant committed a Code 224 violation by
striking a prison official with a food tray. Id.
In the Reply, Applicant argues that the reporting officer “perjured the staff
memorandums and the evidence introduced against pro se Applicant during the DHO
proceeding.” Docket No. 14 at 1.
The Court has considered the pleadings and will dismiss the action for the
reasons stated below.
II. LEGAL STANDARDS
A. 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, 520B21 (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

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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).
B. § 2241 Actions
The writ of habeas corpus is available if a prisoner Ais 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
credits may be challenged in a ' 2241 proceeding. McIntosh, 115 F.3d at 811-12.
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
(1974).
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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.” Hill, 472 U.S. at 454
(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. Insufficient Evidence
Applicant maintains that there was insufficient evidence to support his
disciplinary conviction in violation of due process.
AAscertaining whether the [some evidence] standard is satisfied does not require
examination of the credibility of witnesses, or weighing of the evidence. Instead, the
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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 (1) the statement by the incident
reporter; (2) the supporting memorandum from the human services assistant who
confirmed the described events; (3) a photograph and staff injury assessment of the
reporting staff member; (4) a photograph of parts of two food trays; (5) Applicant’s
photograph; and (6) a BOP health services clinical encounter and Applicant’s mental
health evaluation. Docket No. 13-4 at 4. The DHO further states she considered
Applicant’s written and verbal statements. Id. One statement was provided at the UDC
hearing, one was submitted prior to the DHO hearing to the DHO, and the third one, a
verbal statement, was provided during the DHO hearing. Id. See Docket No. 13-4 at 45. 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 member was more credible than Applicant 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 the witness’s
memorandum 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
(10th Cir. 2007) (unpublished) (holding that an incident report alone constitutes Asome
evidence@ of the inmate=s guilt).
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B. Retaliation
Applicant states that the reporting officer falsified the incident report in retaliation
for Applicant participating in a hunger strike. Docket No. 1 at 5. In a written statement
Applicant wrote prior to the first UDC hearing, Applicant states that the disciplinary
charges should be expunged because he was not able to appreciate the nature and
consequences of his actions at the time of the January 22, 2015 incident due to his
participation in a hunger strike. Docket No. 13-4 at 24. Applicant further states that the
reporting officer issued the report in retaliation for Applicant filing a grievance against
him regarding the incident. Id. at 25.
In a second written statement, dated February 26, 2015, Applicant asserts that
when the reporting officer served Applicant’s food tray he called him “Mitchell,” and
when Applicant did not respond, the officer threw the tray through the slot, which landed
on the floor. Id. at 35. Applicant further asserts that the reporting officer did what he did
because Applicant was participating in a hunger strike. Id. Applicant also asserts that
the disciplinary charge was filed against Applicant because he had filed a grievance
against the officer for his misconduct and the officer sought to “cover-up” his
misconduct. Id. at 36.
To state a valid claim for retaliation, “[m]ere allegations of constitutional
retaliation will not suffice; [Applicant] must rather allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.” Frazier v. Dubois, 922
F.2d 560, 562 n.1 (10th Cir. 1990). Applicant also must “prove that ‘but for’ the
retaliatory motive, the incidents to which he refers, including the disciplinary action,
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would not have taken place.” Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir.
1990).
Applicant’s claims do not support a retaliation argument. There is some
evidence to find that Applicant threw the food trays back through the slot and hit the
reporting officer, which resulted in Applicant being found guilty of assaulting someone
without serious injury. Applicant, therefore, is unable to demonstrate he was exercising
a constitutional right that was the “but for” cause for a retaliatory disciplinary action and
conviction.
C. Delay in Notification
The Court also notes that in the “Nature of the Case” section of the Application
form Applicant states that the notice of the disciplinary charge he received on February
20, 2015 was untimely. Docket No. 1 at 3.
Adequate due process at a prison disciplinary hearing requires only that a
prisoner be provided with written notice of the charges against him no less than twentyfour hours in advance of the disciplinary hearing. See Wolff at 563-66; Maschner, 899
F.2d at 946.
Because Applicant’s DHO hearing was not held until April 27, 2015, which
Applicant concedes was the date the DHO hearing took place, see Docket No. 1 at 3,
the written notice of charges Applicant received on February 20, 2015 was timely under
Wolff.

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IV. CONCLUSION
Accordingly, Applicant cannot prevail on his due process claims. There is some
evidence to support the disciplinary conviction, insufficient evidence to find retaliation by
the reporting officer, and a timely notification of the disciplinary hearing.
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. 1, 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 April 16, 2018.
BY THE COURT:

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

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