Gillman v. Hollingsworth

Filing 19

ORDER ENTERED: C. Maye, Warden, is substituted as respondent in this action. Respondent's motion 17 for extension of time to file a response to and including August 3, 3012, is granted. Respondent's motion 12 to dismiss as moot is sustained, and this action is dismissed without prejudice as moot. Signed by Senior District Judge Richard D. Rogers on 8/16/2012. (Mailed to pro se party Steven A. Gillman by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN A. GILLMAN,
Petitioner,
v.

CASE NO.

11-3228-RDR

WARDEN C. MAYE,
Respondent.1
O R D E R
This petition for writ of habeas corpus was filed pursuant
to

28

U.S.C.

Penitentiary,

§

2241

by

Leavenworth,

an

inmate

Kansas

of

the

(USPL).

United

States

Mr.

Gillman

challenges disciplinary action taken against him for assault on
another inmate that occurred at the USPL on June 6, 2011.

He

alleges that he was found guilty after a hearing on July 6,
2011, and sanctioned with a loss of 27 days good time.2
Petitioner claims that he was denied due process based upon
several grounds including that the Disciplinary Hearing Officer
(DHO) failed to provide him with a written decision stating the
facts relied upon in finding him guilty, failed to set forth the
1

Respondent informs the court that Lisa J.W. Hollingsworth was the
warden of USP-Leavenworth at the time of the filing of this petition but has
since retired from government service, and that the warden is currently C.
Maye.
Accordingly, the court substitutes C. Maye as respondent in this
action.
2

The Answer and Return provides that petitioner was sanctioned with loss
of 23 days of Good Conduct Time.

1

charged misconduct with particularity as to any physical act
that amounted to his participation in the assault, and failed to
adequately
incident

assess

report.

the
He

reliability

of

also

that

claims

the

appoint an adequate staff representative.

information

the

Warden

in

the

failed

to

The court is asked to

“return the 27 days of good time” lost due to the DHO’s decision
on incident report No. 2176453.
The

court

issued

a

show

cause

order

to

respondent.

Respondent filed an Answer and Return (A&R)(Doc. 9) maintaining
that petitioner had not exhausted his administrative remedies at
the

United

States

Penitentiary,

Leavenworth,

Kansas

(USPL)

before seeking judicial review, that petitioner “received all
constitutional procedural safeguards throughout” the challenged
disciplinary
decision

proceedings,

that

A&R

the

of

facts

act,

the

The

recitation

prohibited

supported

petitioner eventually received a copy of his DHO report.
detailed

the

evidence”

that

a

committed

“some

and

includes

he

that

surrounding

alleged incident together with exhibits in support.
Before petitioner filed his Traverse, respondent filed a
Motion to Dismiss as Moot (Doc. 12).

In this motion, respondent

alleged that on May 11, 2012, petitioner’s administrative remedy
was reviewed and “it was determined to provide Petitioner with a
rehearing of his Incident Report No. 2176453.”

Id. at 3.

Based

on the fact that a rehearing had been ordered, respondent argued
2

that the issues are moot and this court lacks subject matter
jurisdiction over petitioner’s claims.
A few days later, petitioner filed his Traverse3 (Doc. 13).
Therein, he recounts in detail his version of the facts on the
day

of

the

proceedings.

assault

incident

and

during

the

disciplinary

He basically reiterates the grounds and arguments

presented in his Petition.

He also recounts all the steps he

persisted in pursuing within the prison administrative review
process.

A week after the court issued its show cause order,

petitioner received the DHO report concerning incident report
No. 2176453.
issues

he

He proceeded to seek administrative remedies as to

discovered

in

this

report.

He

also

meticulously

responds to the allegations and arguments in the A&R.
Shortly thereafter, Mr. Gillman filed a Response (Doc. 14)
to Respondent’s Motion to Dismiss as Moot, in which he alleges
that he has not been afforded a rehearing and that his issues
have not been resolved.

He indicates that his release date is

February 9, 2014, and he is eligible to go to a halfway house 6
months prior to that date.

He is concerned regarding the amount

of time it might take to conduct the rehearing, for him to
receive the DHO report from the new hearing, and for him to
again complete the administrative appeal process if necessary.

3

Petitioner entitled this document
correctly docketed as his Traverse.

3

“Answer

and

Return”

but

it

was

Respondent

thereafter

petitioner’s Traverse,

filed

in which

dismiss this petition as moot.
alleges

that

on

June

14,

a

Response

the court

(Doc.

15)

to

is again asked

to

As factual support, respondent

2012,

a

rehearing

was

held

for

petitioner related to his incident report for assault, and that
petitioner was provided with a different staff representative
who was permitted to review the videotape evidence and was able
to

present

evidence

and

call

witnesses.

Respondent

further

alleges that the DHO verbally advised petitioner of her decision
that he has committed the prohibited act as charged, and a DHO
report while not yet generated “has been prioritized.”

Again,

respondent argues that the issues are now moot and the court
lacks subject matter jurisdiction.
its

earlier

Motion

to

Dismiss,

In both this pleading and
respondent

also

argues

that

“Petitioner’s discipline from the July 2011 hearing no longer
exists.”
Mr.

Gillman

filed

Response to Traverse.

a

Reply

(Doc.

16)

to

respondent’s

Therein, he details the events beginning

on June 5, 2012, that led to the rehearing of Incident Report
No. 2176453 on June 14, 2012, and claims that at the conclusion
of the hearing all his issues remained unresolved and new due
process issues were created.

Petitioner reiterates that he is

seeking restoration of his good time credit.

4

Finally, on August 2, 2012, respondent filed a “Surreply to
Petitioner’s

Reply

(Answer)

to

Respondent’s

Response

Traverse”, which was docketed as her Reply (Doc. 18).

to

Therein

respondent states and shows by exhibit that the North Central
Regional

Discipline

petitioner’s

Incident

Hearing
Report

Administrator
No.

2176453

(DHA)

and

examined

determined

that

petitioner’s good conduct time will be restored and the report
is expunged from his records.4
respondent
petition

again

are

not

asserts
moot

Based on these additional facts,

that

and

the

the

issues

court

presented

lacks

in

subject

the

matter

jurisdiction.
Having

considered

all

materials

filed

herein,

the

court

finds that this matter is moot and concludes that this action
must

be

dismissed

for

lack

of

subject

matter

jurisdiction.

Respondent has correctly argued that “[a] habeas corpus petition
is moot when it no longer presents a case or controversy under
Article III, § 2, of the Constitution.”

Aragon v. Shanks, 144

F.3d 690, 691 (10th Cir. 1998)(citing Spencer v. Kemna, 523 U.S.
1 (1998)).
(petitioner)
actual

To satisfy the case or controversy requirement, “the
must

injury

have

traceable

suffered,
to

the

or

be

threatened

defendant

4

and

with,

likely

to

an
be

The attachment to the declaration shows petitioner’s disciplinary
record as including only Incident Report No. 2284574 based on “being
absent from assignment.”
Apparently, this is intended as proof that
Incident Report No. 2176453 has been expunged from his record.
5

redressed by a favorable judicial decision.”
omitted).

Id. (quotation

In other words, “[a]n issue becomes moot when it

becomes impossible for the court to grant ‘any effectual relief
whatsoever’ on that issue to a prevailing party.”

United States

v. Hahn, 359 F.3d 1315, 1323 (10th Cir. 2004)(quoting Smith v.
Plati, 258 f.3d 1167, 1169 (10th Cir. 2001)).
threshold

issue

because

the

existence

of

“Mootness is a
a

live

case

or

controversy is a constitutional prerequisite to federal court
jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d 863,
867 (10th Cir. 1996).
In

his

habeas

corpus

petition

and

other

pleadings

Mr.

Gillman has specifically sought restoration of his good time
credits.

Since the disciplinary incident report under challenge

herein has been expunged and an official with authority to do so
has declared that petitioner’s credits are to be restored, there
is

no

further

relief

that

can

be

provided

by

this

court.

Accordingly, the court finds that this matter is moot and grants
respondent’s motion to dismiss as moot based

upon the facts

presented in respondent’s Response (Doc. 15) and Reply (Doc.
18).
IT IS THEREFORE BY THE COURT ORDERED that C. Maye, Warden,
is substituted as respondent in this action.

6

IT

IS

FURTHER

ORDERED

that

respondent’s

Motion

for

Extension of Time to File Response (Doc. 17) to and including
August 3, 2012, is granted.
IT IS FURTHER ORDERED that respondent’s Motion to Dismiss
as Moot (Docs. 12, 15, and 18) is sustained, and this action is
dismissed without prejudice as moot.
IT IS SO ORDERED.
DATED:

This 16th day of August, 2012, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

7