Pittman v. Fox

Filing 23

ORDER Denying 1 Application for Writ of Habeas Corpus; Denying 19 Applicant's Request for Leave to File Supplemental Pleading; Denying 20 Applicant's Motion for Reconsideration for an Extension of Time; Denying as Moot 22 Respondent's Motion to Supplement Response. Case is DISMISSED, by Judge Christine M. Arguello on 4/18/2018. (swest, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02842-CMA
DARNELL PITTMAN, SR.,
Plaintiff,
v.
JACK FOX, Warden,
Defendant.
ORDER
______________________________________________________________________
This matter is before the Court upon Applicant Darnell Pittman, Sr.’s Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Application”), filed
November 27, 2017. (Doc. # 1.) United States Magistrate Judge Gordon P. Gallagher
issued an Order to Show Cause directing Respondent Jack Fox to show cause why the
Application should not be granted on February 17, 2018. (Doc. # 11.) Respondent
timely filed a Response to the Order to Show Cause on March 22, 2018. 1 (Doc. # 18.)

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Applicant requested an extension of time to reply to Respondent’s Response to the Order to
Show Cause (Doc. # 16), which the Court denied on March 15, 2018 (Doc. # 17). The Court
explained that its Order to Show Cause (Doc. # 11) required only Respondent to respond.
(Doc. # 17.) Applicant requested reconsideration of the Court’s denial (Doc. # 20) and moved
for leave to file supplemental pleadings (Doc. # 19). Applicant also filed an untimely Reply to
Respondent’s Response to the Order to Show Cause on April 12, 2018. (Doc. # 21.) The Court
declines to consider Applicant’s untimely Reply (id.), as it denied Applicant’s previous request
for an extension of time to file such a reply.

This Court has carefully considered the Application, related briefing, the case file,
and the applicable law, and has determined that a hearing would not materially assist in
the Court’s disposition of the Application. For the following reasons, the Court DENIES
the Application.
I.

BACKGROUND

Applicant is a federal prisoner currently incarcerated at the Federal Correction
Institution, Administrative Maximum Facility (“ADX”) in Florence, Colorado. (Doc. # 1 at
1.)
On January 13, 2016, while incarcerated at the United States Penitentiary
Coleman-I (“USP-I”) in Coleman, Florida, Applicant was issued Incident Report No.
2804390 (the “Incident Report”), in which Applicant was accused of violating Code 203
for threatening a penitentiary staff member with harm. (Id. at 2); see (Doc. # 18-4 at 4.)
The Incident Report alleged that earlier that same day, Applicant threatened a
corrections officer, Officer Goodman, when the officer declined Applicant’s request to
use the telephone. (Doc. # 18-4 at 4.) According to Officer Goodman’s description in
the Incident Report, Applicant became agitated, threatened to break the window out and
initiate the fire suppression system, and said to him, “Goodman isn’t a hard name to
find, you think I can’t get to you? I’ll get to you and your family. You better check my
paperwork, you know what I’m back here for.” (Id.) The Incident Report was delivered
to Applicant and referred to the Unit Disciplinary Committee (“UDC”) on the following
day, January 14, 2016. (Id.)

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The UDC processed the Incident Report on January 15, 2016. (Doc. # 18 at 2–
3.) Applicant told the UDC during its investigation, “I never spoke to Goodman for
nothing” and “Goodman came to my door talking shit to me about Officer Washburn.”
(Doc. # 18-4 at 4.) Applicant alleges that he also told the UDC that he “wished to
appoint correctional staff Mr. T. Johnson as his staff representative for the hearing
ahead” and that he “wished to call upon two inmates as witnesses in his defense to the
charging instruction.” (Doc. # 1 at 3.) Applicant alleges that he provided the two
inmates’ names to the UDC. (Id.) The UDC referred the Incident Report to a
Disciplinary Hearing Officer (the “DHO”) and recommended sanctions of twenty-seven
days’ loss of good time credit. 2 (Id.)
On January 22, 2016, Applicant was transferred from USP-I to United States
Penitentiary Coleman-II (“USP-II”), also in Coleman, Florida. (Id.); see (Doc. # 18-5 at
1.) The Incident Report and related investigation packet were misplaced during
Applicant’s transfer for USP-II. (Doc. # 18 at 3); see (Doc. # 18-4 at 10.)
On February 29, 2016, Applicant was served with another copy of the Incident
Report. (Doc. # 1 at 3; Doc. # 18-3.) Here, the parties’ factual allegations begin to
diverge. Applicant alleges that the report he received on February 29, 2016 was a
“manipulated version of the original.” (Doc. # 1 at 3.) He further alleges that when the
report was delivered to him, he “was not afforded any opportunity/right to make a
statement, nor was [sic] his rights read to him.” (Id.) In contrast, Respondent alleges

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The UDC also recommended that Applicant lose ninety days of access to visits and the
commissary. (Doc. # 18-4 at 4.) These recommended sanctions are not at issue in the
Application presently before the Court.
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that Applicant was advised of and indicated he understood his rights and was given the
opportunity to make a statement, to which Applicant replied that he had no comment
other than what he already provided. (Doc. # 18 at 3.) Respondent cites to the
investigation report by Lieutenant Carr, on which Lieutenant Carr documented this
exchange with Applicant. See (Doc. # 18-4 at 5.) Lieutenant Carr concluded therein
that the re-issued report was “accurate as written” based on “the statement of fact in
section1 of th[e] report.” (Id.)
It is undisputed that on March 1, 2016, USP-II’s UDC conducted a hearing about
the Incident Report. (Doc. # 18-4 at 6–15.) Applicant stated, “I never spoke to
Goodman for nothing[;] Goodman came to my door talking about to be about Officer
Washburn.”3 (Id. at 14.) The UDC provided Applicant with a Notice of Discipline
Hearing Before the DHO and a copy of Inmate Rights at Discipline Hearing, but
Applicant refused to sign them. (Id. at 6–9.) On the Notice of Discipline Hearing Before
the DHO, Applicant indicated that he would like a staff representative (“Officer
McSherry”) and that he would like to call witnesses at the DHO hearing. (Id. at 7.)
Applicant did not identify those witnesses or the content of their testimony; he only
noted that they were the “same as before.” (Id.); see also (Doc. # 1 at 3; Doc. # 18 at
4.)
DHO Aaron Rich conducted the hearing on March 14, 2016. (Doc. # 1 at 4; Doc.
# 18 at 4); see (Doc. # 18-4 at 1–3.) DHO Rich later recounted the hearing in an
affidavit in support of Respondent’s Response to the Order to Show Cause:
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Applicant alleges that he also told the UDC that “he believed the second UDC hearing was an
illegal stunt in an effort to sabotage his hearing process before the DHO.” (Doc. # 1 at 3.)
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During the DHO hearing, I reviewed [Applicant]’s due process rights with
him, including his right to call witnesses and his right to request a staff
representative; [Applicant] confirmed he understood his rights and had no
documentary evidence to present. [Applicant] also confirmed that he had
initially requested a staff representative and witnesses but elected to
waive his requested staff representative and witnesses at the DHO
hearing. Per [Applicant]’s request, I wrote the following on the “Notice of
Discipline Hearing Before the (DHO)”: “I request to waive the staff rep and
witness,” and [r]efused to sign but willing to waive.” Lieutenant P. Burns,
who was present at the DHO hearing for escort purposes, witnessed both
statements via signature. . . . [Applicant] denied the charges and stated: “I
am not guilty.”
(Doc. # 18-1 at 6) (internal citations omitted); see also (Doc. # 18-4 at 1–2.) Applicant
describes the hearing before DHO Rich on March 14, 2016, differently. (Doc. # 1 at 4.)
Applicant alleges that he “emphasized” to DHO Rich “the fact that it was not
[Applicant’s] fault” that the original Incident Report—“in which consisted of the
witnesses’ names [Applicant] had selected in his defense”—was misplaced. (Id.) He
further alleges that he requested an “opportunity to gather his witnesses via staff
representative” because he “had been separated from the facility with his witness[es].”
(Id.) Applicants states that DHO Rich denied his requests and “proceeded with such
hearing without [Applicant’s] consent.” (Id.)
DHO Rich concluded that Applicant had committed a lesser prohibited act than
charged, being insolent toward staff (Code 312). (Doc. # 18-1 at 6; Doc. # 18-4 at 2.)
DHO Rich sanctioned Applicant with “14 days disallowed good conduct time; 30 days
disciplinary segregation; [and] 120 days loss of commissary privileges.” (Doc. # 18-4 at
2.) Applicant received a copy of DHO Rich’s report on March 15, 2016. (Id. at 3.)
In his Application, Applicant contends that DHO Rich violated his procedural due
process rights at the hearing on March 14, 2016 by “fail[ing] to afford” Applicant his
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“rightful opportunity to call upon witnesses in which [sic] [Applicant] wished to have
testify on his own behalf.” (Doc. # 1 at 7.) He further alleges that DHO Rich deprived
him of a “fair hearing” by “fail[ing] to appoint [Applicant] a staff representative who could
have facilitated [his] effort and ability to re-establish [his] desired witnesses’ name(s)
and registry numbers.” (Id.) Applicant asks the Court to “order Respondent to expunge
the finding of guilt regarding Incident Report [No.] 2804390 and restore [Applicant’s] 14
days of good time credit.” (Id.)
II.
A.

LEGAL STANDARD

28 U.S.C. § 2241
“[T]he essence of habeas corpus 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). Petitions for
habeas corpus made pursuant to Section 2241 “are used to attack the execution of a
sentence,” whereas petitions made pursuant to Sections 2254 and 2255 “are used to
collaterally attack the validity of a conviction and sentence.” McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief pursuant to Section
2241 may be warranted if the petitioner “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 petition under
28 U.S.C. § 2241, brought in the district where the inmate is confined, is a proper
vehicle for challenging the loss of good-time credits.” Bornman v. Berkebile, No. 14-cv01997-MJW, 2014 WL 5396169, at *2 (D. Colo. Oct. 23, 2014) (citing Howard v. U.S.

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Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007)); see also McIntosh, 115 F.3d at
811–12.
A habeas petitioner “is entitled to receive an evidentiary hearing so long as his
allegations, if true and if not contravened by the existing factual record, would entitle
him to habeas relief.” Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998); see
also United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (“In response to a [28
U.S.C.] § 2255 motion, the district court must hold an evidentiary hearing on the
prisoner's claims unless the motion and files and records in the case conclusively show
that the prisoner is entitled to no relief.” (quotations omitted)); Wilson v. Oklahoma, 335
F. App’x 783, 784 (10th Cir. 2009) (finding no error where district court denied applicant
evidentiary hearing on 28 U.S.C. § 2241 petition where “nothing in the record [ ]
indicate[d] [the applicant] is entitled to any relief”).
B.

DUE PROCESS FOR DISCIPLINARY PROCEEDINGS
“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.” Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir.
1996) (citing Taylor v. Wallace, 931 F.2d 698, 700 (10th Cir. 1991)). The Supreme
Court has held, however, that “[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). To meet the standards of
due process in a disciplinary proceeding under Wolff,
the inmate must receive: (1) advance written notice of the disciplinary
charges; (2) an opportunity, when consistent with institutional safety and
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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.
Superintendant, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
Additionally, “where the inmate is illiterate 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,’” due process also requires that the inmate be
provided with the aid of a staff representative. Jordan v. Wiley, No. 06-cv-02090-WYD,
2009 WL 1698509, *9 (D. Colo. June 17, 2009) (quoting Wolff, 418 U.S. at 570).
These due process requirements for a disciplinary hearing are satisfied if “some
evidence supports the decision by the prison disciplinary board to revoke good time
credits.” Hill, 472 U.S. at 455 (emphasis added); Edwards v. Balisok, 520 U.S. 641, 648
(1997). Under this “some evidence” standard, “it is sufficient that there was some
evidence from which the conclusion of the administrative tribunal could be deduced and
that it committed no error so flagrant as to convince a court of the essential unfairness
of the [proceeding].” United States ex rel. Vajtauer v. Comm’r of Immigration, 273 U.S.
103, 106 (1927); see also Hill, 472 U.S. at 455–56 (“the relevant question is whether
there is any evidence in the record that could support the conclusion reached by the
disciplinary board.”). “Ascertaining whether this standard is satisfied does not require
examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence.” Hill, 472 U.S. at 455.
Errors made by prison officials in failing to satisfy these due process
requirements are subject to harmless error review. Farrakhan-Muhammad v. Oliver,
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688 F. App’x 560, 564–65 (10th Cir. 2017) (citing Grossman v. Bruce, 447 F.3d 801,
805 (10th Cir. 2006) (holding that the prison official’s error in denying witness testimony
was subject to harmless error review)).
C.

PRO SE LITIGANTS
The Court acknowledges that Applicant is proceeding pro se. “A pro se litigant’s

pleadings are to be construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The Haines rule applies to all
proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be
a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
III.

ANALYSIS

Applicant’s sole claim alleges a procedural due process violation. (Doc. # 1 at 2.)
He asserts that DHO Rich violated his constitutional rights at the hearing on March 14,
2016, because DHO Rich: (1) did not afford Applicant “the rightful opportunity to call
upon witnesses” to “testify on his . . . behalf” at the hearing; and (2) “failed to appoint
[Applicant] a staff representative.” (Id. at 7.) Applicant does not put forth any evidence
in support of these assertions. The Court rejects both of these arguments.
The Court is satisfied that Applicant was not deprived of his right under Wolff to
“to call witnesses . . . in his defense,” see Hill, 472 U.S. at 454, and to “have adequate
. . . aid in the form of help from the staff,” see Wolff, 418 U.S. at 570. The Court credits
DHO Rich’s testimony that at the hearing on March 14, 2016, Applicant “confirmed that
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he had initially requested a staff representative and witnesses but elected to waive his
requested staff representative and witnesses at the DHO hearing.” (Doc. # 18-1 at 6.)
DHO Rich averred that “[p]er [Applicant’s] request, [he] wrote the following on the
‘Notice of Discipline Hearing Before the (DHO)’: ‘I request to waive the staff rep and
witnesses.’” (Id.) DHO Rich further testified that because Applicant refused to sign that
statement but was willing to waive any witnesses and staff representation, he had
Lieutenant Burns, who had escorted Applicant to the hearing and remained present,
sign a note stating as much on the Notice of Discipline Hearing Before the DHO. (Id.)
The Notice of Disciple Hearing form confirms DHO Rich’s testimony; it includes two
hand-written statements (“I request to waive the staff rep and witnesses” and “Refused
to sign but willing to waive”) and the signatures of DHO Rich and Lieutenant Burns.
(Doc. # 18-4 at 7.) The record thereby refutes Applicant’s conclusory assertion that he
was denied the opportunity to call witnesses and have a staff representative. See
Mitchell, 80 F.3d at 1445 (rejecting an inmate’s argument that he was not permitted to
call witnesses and present evidence on his behalf where the inmate had signed a form
waiving his right to do so).
IV.

CONCLUSION

Therefore, the Application for Writ of Habeas Corpus (Doc. # 1) is DENIED and
the case dismissed. It is
FURTHER ORDERED that Applicant’s Request for Leave to File Supplemental
Pleading (Doc. # 19) is DENIED. It is

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FURTHER ORDERED that Applicant’s Request for Reconsideration for an
Extension of Time to Submit a Rebuttal Response (Doc. # 20) is DENIED. It is
FURTHER ORDERED that Respondent’s Motion to Supplement Response to
Order to Show Cause (Doc. # 22) is DENIED AS MOOT.

DATED: April 18, 2018
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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