Gillman v. Hollingsworth
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,
WARDEN C. MAYE,
O R D E R
This petition for writ of habeas corpus was filed pursuant
challenges disciplinary action taken against him for assault on
another inmate that occurred at the USPL on June 6, 2011.
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
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.
Accordingly, the court substitutes C. Maye as respondent in this
The Answer and Return provides that petitioner was sanctioned with loss
of 23 days of Good Conduct Time.
charged misconduct with particularity as to any physical act
that amounted to his participation in the assault, and failed to
appoint an adequate staff representative.
The court is asked to
“return the 27 days of good time” lost due to the DHO’s decision
on incident report No. 2176453.
Respondent filed an Answer and Return (A&R)(Doc. 9) maintaining
that petitioner had not exhausted his administrative remedies at
before seeking judicial review, that petitioner “received all
constitutional procedural safeguards throughout” the challenged
petitioner eventually received a copy of his DHO report.
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.
on the fact that a rehearing had been ordered, respondent argued
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
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
A week after the court issued its show cause order,
petitioner received the DHO report concerning incident report
He proceeded to seek administrative remedies as to
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.
Petitioner entitled this document
correctly docketed as his Traverse.
dismiss this petition as moot.
is again asked
As factual support, respondent
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
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.”
respondent argues that the issues are now moot and the court
lacks subject matter jurisdiction.
In both this pleading and
“Petitioner’s discipline from the July 2011 hearing no longer
Response to Traverse.
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.
Finally, on August 2, 2012, respondent filed a “Surreply to
Traverse”, which was docketed as her Reply (Doc. 18).
respondent states and shows by exhibit that the North Central
petitioner’s good conduct time will be restored and the report
is expunged from his records.4
Based on these additional facts,
finds that this matter is moot and concludes that this action
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.
To satisfy the case or controversy requirement, “the
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.
redressed by a favorable judicial decision.”
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.”
v. Hahn, 359 F.3d 1315, 1323 (10th Cir. 2004)(quoting Smith v.
Plati, 258 f.3d 1167, 1169 (10th Cir. 2001)).
“Mootness is a
controversy is a constitutional prerequisite to federal court
jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d 863,
867 (10th Cir. 1996).
Gillman has specifically sought restoration of his good time
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
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.
IT IS THEREFORE BY THE COURT ORDERED that C. Maye, Warden,
is substituted as respondent in this action.
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.
This 16th day of August, 2012, at Topeka, Kansas.
s/RICHARD D. ROGERS
United States District Judge
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