WARREN v. BELL
Filing
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OPINION AND ORDER - Accordingly, the BOP's sanction of a loss of a total of 218 days of good time comports with the regulations and Mr. Warren's due process rights weren't violated by its imposition. Based on the foregoing, the court DENIES Mr. Warren's § 2241 petition [Doc. No. 1 ] (SEE OPINION AND ORDER FOR ADDITIONAL INFORMATION). Signed by Judge Robert L. Miller, Jr on 3/28/2018. Copy to Petitioner via US Mail. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JAMAL KAREEM WARREN,
Petitioner,
v.
J. R. BELL, Warden,
Respondent.
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Cause No. 2:17-cv-493 RLM-DLP
OPINION AND ORDER
Jamal Kareem Warren is serving a term of imprisonment at the Federal
Correctional Complex in Terre Haute. His petition under 28 U.S.C. § 2241
challenging a prison disciplinary proceeding while he was imprisoned at Federal
Correctional Institution, Oakdale [Doc. No. 1] pends before the court. His petition
claims that he was denied due process when: (1) his appeal of the disciplinary
hearing officer’s report was denied as untimely; (2) the incident report was
allegedly issued 18 days after the misconduct; and (3) the sanctions imposed
allegedly exceeded those authorized by law. The factual and legal issues raised
can be resolved on the record, so no hearing is necessary. For the reasons that
follow, the court denies Mr. Warren’s petition.
Mr. Warren is serving a sentence of 102 months of imprisonment to be
followed by 120 months of supervised release for engaging in interstate
transportation of a minor with the intent to engage in criminal sexual activity in
violation of 28 U.S.C. § 2423(a). While at FCI Oakdale Louisiana, the Bureau of
Prisons accused him of infractions of BOP rules, including use of mail for abuses,
use of the telephone for abuses, and giving money to another inmate without
staff authorization. Following a hearing on the charges with Mr. Warren present,
the disciplinary hearing officer imposed a sanction of a loss of a total of 218 days
of good conduct time, segregation time, and a loss of privileges. After exhausting
his administrative remedies, Mr. Warren filed this petition alleging due process
violations.
“This court does not sit in review of the correctness of the [Disciplinary
Hearing Officer’s] decision; [Mr. Warren] is entitled to relief only if the procedures
used to arrive at that sanction do not comport with due process.” Piggie v. Cotton,
342 F.3d 660, 667 (7th Cir. 2003). “Federal inmates must be afforded due
process before any of their good time credits—in which they have a liberty
interest—can be revoked.” Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011).
In the context of a prison disciplinary hearing, due process requires
that the prisoner receive (1) written notice of the claimed violation at
least 24 hours before hearing; (2) an opportunity to call witnesses
and present documentary evidence (when consistent with
institutional safety) to an impartial decision-maker; and (3) a written
statement by the fact-finder of the evidence relied on and the
reasons for the disciplinary action.
Id.
Mr. Warren first argues that that he was denied due process because his
appeal of the disciplinary hearing officer’s report was denied as untimely. He
contends that he timely filed his appeal, which the regulations require he submit
within 20 days of being served the disciplinary hearing officer’s report, and any
delay was due to the actions of the BOP staff, who housed him in an SHU and
held his outgoing mail for inspection. The warden doesn’t dispute that Mr.
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Warren’s appeal was denied as untimely and, for purposes of this petition, the
court will assume without deciding that Mr. Warren’s appeal was only untimely
because of the actions of BOP personnel so the BOP should have accepted it.
Mr. Warren argues that 28 C.F.R. § 541.8 grants him a right to appeal and
that BOP violated his due process rights when it didn’t adjudicated his appeal.
The regulation itself doesn’t “create[ ] a liberty interest protected by the Due
Process Clause.” Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir. 1997). Federal
inmates have a due process interest in their good time credits and, before they
can be revoked, due process requires that a prisoner receive timely written notice
of the alleged violation, the opportunity to present evidence to an impartial
decision-maker, and receive a written statement with the basis for the
disciplinary action taken. Jones v. Cross, 637 F.3d at 845. Mr. Warren hasn’t
demonstrated that due process required a fully adjudicated administrative
appeal, especially in this case, where the BOP hasn’t argued that Mr. Warren
didn’t exhaust his administrative remedies and his 2241 is properly before this
court.
Mr. Warren next argues that he was denied due process because he didn’t
timely receive a copy of the incident report. Mr. Warren asserts that the alleged
misconduct occurred on July 6, 2015, the BOP staff knew of the alleged
misconduct that day because they informed him of it, and yet BOP didn’t issue
him an incident report until July 24, 2015. Mr. Warren believes this violated his
due process rights. Mr. Warren’s argument relies on his reading of a BOP
regulation, which he claims requires the BOP issue him an incident report within
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24 hours of BOP staff learning of the incident. See 28 C.F.R. § 541.5(a) (“[y]ou
will ordinarily receive the incident report within 24 hours of staff becoming aware
of your involvement in the incident”).
The court of appeals considered this argument in Jones v. Cross, 637 F.3d
at 846, and held that a prisoner doesn’t have a “liberty interest in the time frames
set forth in § 541.15(a).” “[W]ith respect to timing, all that due process requires
is that prisoners be given written notice of alleged violations at least 24 hours
before a disciplinary hearing.” Id. Mr. Warren acknowledges that he received the
incident report on July 24, 2015 and the evidence shows that the disciplinary
hearing was held on August 5, 2015. [Doc. No. 12-5 at 1]. Accordingly, “even
assuming there was a violation of BOP regulations in this case, that violation did
not infringe [Mr. Warren's] constitutionally-protected rights.” Id.
Mr. Warren also argues that he was denied due process because the
sanctions imposed allegedly exceeded those authorized by law, contending that
the BOP imposed a sanction of a loss of a total of 218 days of good conduct time,
but the BOP’s regulations allow for a sanction of no more than 54 days of good
conduct time in this case. 1
Mr. Warren was sanctioned for violations of use of mail for abuses, use of
telephone for abuses, and giving money to another inmate without staff
authorization. [Doc. No. 12-5 at 4]. The BOP regulations categorize the use of
Mr. Warren argues that the sanction contravenes BOP Program Statement Number
5270.09. Because this Program Statement reiterates the relevant regulations and Mr.
Warren hasn’t suggested that anything in the Program Statement that goes beyond the
regulations is material to Mr. Warren’s claim, the court limits its discussion to the
regulations.
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mail and telephone for abuses infractions as “high severity level prohibited acts,”
while giving money to another inmate without staff authorization is considered
a “moderate severity level prohibited act.” 28 C.F.R. § 541.4 (table 1). The
regulation allows for a sanction of a loss of 27 days of good time for each high
severity level prohibited act and 14 days of good time for each moderate severity
level prohibited act. Id. The Disciplinary Hearing Officer imposed a sanction of a
loss of 68 days of good time for those violations (27 days for use of mail for
abuses, 27 days for use of telephone for abuses, and 14 days for giving money
to another inmate without staff authorization).
Because the BOP had sanctioned Mr. Warren for the same conduct earlier
that year, [Doc. No. 12-4 at 1], 2 he was subject to additional sanctions under the
regulations, including a forfeiture of up to 90 days of non-vested good time for
each high severity level prohibited act and 45 days of non-vested good time for
each moderate severity level prohibited act. 28 C.F.R. § 541.4 (table 2). Under
this authority, the disciplinary hearing officer also imposed a sanction of a loss
of 150 days of non-vested good time (60 days for use of mail for abuses, 60 days
for use of telephone for abuses, and 30 days for giving money to another inmate
without staff authorization). [Doc. No. 12-5 at 4]. Accordingly, the BOP’s sanction
of a loss of a total of 218 days of good time comports with the regulations and
Mr. Warren’s due process rights weren’t violated by its imposition.
2 In his reply, Mr. Warren argues that the BOP provided no evidence to show that he
was a repeat offender, but the incident report notes that in “January 2015 inmate
Warren, Jamal was sanctioned for the same behavior,” [Doc. No. 12-4 at 1], and Mr.
Warren didn’t submit any evidence contradicting the incident report.
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Based on the foregoing, the court DENIES Mr. Warren’s § 2241 petition
[Doc. No. 1].
SO ORDERED.
ENTERED: March 28, 2018
/s/ Robert L. Miller, Jr.
Judge, United States District Court
Distribution:
JAMAL KAREEM WARREN 65300-097
TERRE HAUTE - FCI
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
Jill Z. Julian, AUSA
Jill.julian@usdoj.gov
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