Mertins v. Maye

Filing 9

MEMORANDUM AND ORDER ENTERED: This action is dismissed as moot and all relief is denied without prejudice. Signed by Senior District Judge Richard D. Rogers on 05/18/15. Mailed to pro se party Kevin Paul Mertins by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN PAUL MERTINS,
Petitioner,
v.

CASE NO.

13-3001-RDR

C. MAYE,
Respondent.
MEMORANDUM AND ORDER
This petition for writ of habeas corpus was filed pursuant
to

28

U.S.C.

§

2241

by

an

inmate

of

Penitentiary, Leavenworth, Kansas (USPL).

the

United

States

The court issued a

show cause order to respondent who filed an Answer and Return
(A&R).

Petitioner

responded,
Response

to

and

filed

petitioner

Traverse”.

a

Traverse

filed

Having

a

to

“Reply

considered

which
to
all

respondent
Respondent’s

the

materials

filed, the court finds that the claims raised in the petition
are moot due to a voluntary rehearing, which clearly provided
those specific elements of due process that petitioner claimed
were denied in his first disciplinary hearing.

Accordingly,

this action is dismissed without prejudice.
BACKGROUND FACTS
The following facts are not in dispute.

At the time this

action was filed Mr. Mertins was serving a sixty-three month

1

sentence at the USPL for Felon in Possession of a Firearm.

On

May 29, 2012, he was searched by Officer Genter as he attempted
to

enter

A

Cell

House.

Officer

Genter

found

a

bag

that

contained 40 cartons of milk,1 which he immediately assumed had
been stolen from Food Services.

Officer Genter wrote Incident

Report (IR) No. 2309204 charging Mr. Mertins with Possession of
Stolen

Property

in

violation

of

Code

delivered to petitioner that morning.

226,

and

the

IR

was

Two days later petitioner

appeared before the UDC, where he stated that Officer Genter had
told him to call Genter as a witness that the milk was taken
from

the

trash

contraband.

and

The

the

UDC

charge

referred

(Disciplinary Hearing Officer).

should
the

be

matter

possession
to

the

of
DHO

Petitioner appeared before the

DHO on September 11, 2012, having requested that the reporting
officer be called as a witness and assuming Genter’s statement
would serve as his defense.
unavailable.

However, Officer Genter was ill and

Petitioner declined a staff representative, made a

brief statement, and presented no documentary evidence.
believed

“the

reporting

officer’s

testimony

was

The DHO

adequately

contained” in the IR and found Mr. Mertins guilty as charged.
The sanctions imposed included loss of 27 days of good conduct
time.
1

Mr. Mertins states in his Traverse that he took the cartons of milk to
give to cats living on the recreation yard.

2

On the day Mr. Mertins was found guilty, he wrote to “DHO
Secretary” Ms. Prier that his copy of the IR did not “contain
the incident report number,” and he needed “this number to file
an

appeal.”

Petition,

Attachments

(Doc.

1-1)

at

6.

Prier

responded: “The IR number will be included on your DHO report.
You can’t appeal until you receive a copy of the DHO report.”
Id.
On

September

petitioner’s

25,

2012,

disciplinary

which

was

hearing,

a

couple

Officer

weeks

Genter

after

wrote

a

Memorandum addressed to the BOP Regional Director stating he had
discovered “sometime later” that “the milk was actually expired
and had been discarded and Mertins had retrieved it from a trash
can.”

Id. at 2.

Genter further stated that he had intended to

appear before the DHO at petitioner’s hearing “to explain about
the milk but was taken ill.”

Id.

In addition, Genter stated he

would have testified that he “no longer felt that the Offense
amounted

to

Possession

Possessing
of

Anything

Stolen
Not

Property

but

Authorized,”

rather

and

that

Code
he

305

likely

“would have dealt with the matter in a far different manner such
as

Informal

charge.”
conduct”

Id.
and

Resolution

the

previously

mentioned

lesser

Genter noted “Mertin’s record of otherwise clear
recommended

reduced or expunged.”
On

or

October

7,

that

the

charge

and

sanctions

“be

his

administrative

Id.
2012,

petitioner
3

sent

appeal to the Regional Office in which he complained that DHO
Potts had violated his right to call a witness under Wolff v.
McDonnell, 418 U.S. 439 (1974).

He asked to have the guilty

finding annulled and the IR returned to Genter “for further
processing.”

Id. at 3.

October 11, 2012, that

Petitioner received a Notice dated
his Regional Appeal was rejected and

returned to him for the following reasons: “You must wait for
the DHO’s decision of the DHO Hearing before you may appeal to
the

Regional

Office.”

Id.

at

4.

Mertins

was

directed

to

resubmit his appeal “within 20 days of the date you receive the
DHO’s decision.”

Id.

On October 26, 2012, Mertins went ahead

and sent an appeal to the Central Office.
On December 18, 2012, petitioner sent a “Request to Staff”
to DHO B. Potts stating that he “could not find any evidence
substantiating

a

requirement”

that

he

wait

until

after

his

receipt of the DHO’s written report to begin the administrative
appeal process.
7.

He also again requested the IR number.

Id. at

As of the date he mailed his petition to this court, Mr.

Mertins had not received a reply to this request.
Petitioner

was

informed

on

November

29,

Id.
2012,

that

his

Central Office appeal was rejected on procedural grounds but did
not

receive

administrative

written
remedy

notice.
retrieval

Respondent
record

showing

provides
the

an

rejection

status of this Central Office appeal dated December 11, 2012.
4

A&R, Attachments (Doc. 5-1) at 30.

The instant petition was

received by the court on January 2, 2013.
DHO Potts was apprised of the instant court action shortly
after it was filed and reviewed documents filed in this case
including Genter’s Memorandum.
to

hold

a

2309204.”

re-hearing

of

As a result, Potts “determined

Petitioner’s

Incident

Id. (Doc. 5-2 at 6)(Potts Affid.).

Report

No.

Mr. Mertins was

provided notice, and the rehearing was conducted on January 22,
2013.

Id. at 57.

declined

to

evidence.
that

a

make

Petitioner declined a staff representative,
a

statement,

and

presented

no

documentary

He called Officer Genter as a witness, who testified

couple

days

after

the

incident

he

learned

Services Department had thrown out the expired milk.
Genter

further

stated

that

he

could

have

the

Food

Id. at 8.

handled

the

IR

differently and would have written it for a Code 305, Possession
of

Anything

rehearing

Unauthorized.

and

provided

a

Id.

DHO

detailed

Potts

written

conducted

statement

evidence considered and the reasons for her decision.
62-63.

of

the
the

Id. at

Potts stated that she had considered all the evidence

presented at the rehearing along with petitioner’s statements
during

the

investigation

and

at

the

prior

written and oral statements of Officer Genter.

hearings

and

Id. at 62.

the
She

found it undisputed that Mr. Mertins was in possession of the
milk and that he was guilty of the offense of possession of
5

stolen

property

as

charged

because

there

was

no

evidence

indicating that anyone else had taken the milk or that staff had
authorized petitioner to take it.

Id.

The DHO imposed the same

sanctions upon Mr. Mertins as at his first hearing including the
loss of 27 days good conduct time, and found they had all been
served after the original hearing.

Id. at 63.

The DHO Report

from the rehearing was provided to petitioner on February 1,
2013.

Id.

DISCUSSION
1.

Mootness
As a threshold matter, respondent contends in his A&R that

the issues presented in the petition are now moot and that this
court lacks jurisdiction as a result.

In support, respondent

alleges that the circumstances existing when this action was
filed “have completely changed” in that petitioner was afforded
a rehearing, the sanctions imposed were re-evaluated, and the
original

disciplinary

proceedings

no

longer

exist.

More

specifically, respondent argues that the due process elements
alleged to have been denied petitioner in his first hearing,
namely his request for witness Genter and the DHO report, were
afforded in his rehearing.

Thus, respondent argues that there

is no further relief for this court to grant.
In response to the mootness issue, petitioner argues that
he seeks return of his good time and that the constitutionally
6

deficient rehearing did not cure the constitutionally deficient
original hearing because he was denied due process at both.
asks

the

court

to

restore

his

good

time

and

expunge

He
the

disciplinary action from his record.2
Under
federal

Article

court

may

controversies.”
477

(1990).

III

of

the

adjudicate

United
“only

States

actual,

Constitution,

ongoing

or

Lewis v. Continental Bank Corp., 494 U.S. 472,
The

case

or

controversy

requirement

through all stages of federal judicial proceedings.
478.

cases

a

continues

Id. at 477–

“This means that, throughout the litigation, the plaintiff

‘must have suffered, or be threatened with, an actual injury
traceable

to

the

defendant

and

favorable judicial decision.’”
(1998)(quoting id. at 477).

likely

to

be

redressed

by

a

Spencer v. Kemna, 523 U.S. 1, 7

“[A] claim is moot when the issues

presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.”
U.S. 486, 496 (1969).

Powell v. McCormack, 395

When a party “has already received the

relief that he is seeking from this Court, . . . the issue is no
longer live,” and the case is moot.

United States v. Beltran–

Gabito, 280 F. Appx. 861, 863 (11th Cir. 2008)(citing 31 Foster
Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003)); Cox v.
Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994)(“Article

2

This was petitioner’s only disciplinary report at the USPL.

7

III’s requirements that federal courts adjudicate only cases and
controversies

necessitates

that

courts

decline

to

exercise

jurisdiction where the award of any requested relief would be
moot—i.e.

where

the

controversy

is

no

longer

ongoing.”)(superceded by statute on other grounds).

live

and

The Tenth

Circuit Court of Appeals previously found after a rehearing of a
disciplinary conviction that “even if there were due process
violations at” the first hearing, the court had no basis for
overturning the inmate’s conviction at the rehearing because the
loss of good time was a sanction “imposed as a result of the
second hearing.”

Blum v. Federal Bureau of Prisons, 189 F.3d

477, *1 (Table)(10th Cir. 1999).
in

another

unpublished

The Tenth Circuit recently held

decision

that

a

§

2241

habeas

petitioner’s claims were mooted “when prison officials set aside
his disciplinary conviction and ordered a third hearing.”
v. Jones, 473 Fed.Appx. 843, 845–846 (10th Cir. 2012).

Craft
The

court reasoned that the petitioner’s “claims sought no relief
that was not granted by prison officials,” and therefore his
claims were moot.
In his petition filed before the rehearing was conceived,
Mr. Mertins challenges the decision rendered as a result of his
initial disciplinary hearing conducted on September 11, 2012.
The

grounds

alleged

for

that

challenge

are

(1)

that

his

constitutional rights were violated because he was not allowed
8

to call Officer Genter as a witness, and (2) that he was “denied
meaningful access to the administrative remedy process” and a
“meaningful opportunity to resolve” his issues within the BOP
due to their failure to provide the DHO Report or number.

The

relief sought in the petition is restoration of petitioner’s
good conduct time in order to avoid the adverse impact upon his
half-way house eligibility date.

He seeks this relief based

upon

violations

the

alleged

due

disciplinary hearing.

process

in

his

first

This sanction was effectively undone by

the agency’s determination that a rehearing was required.

The

loss of good conduct time that was imposed on January 22, 2013,
resulted from petitioner’s rehearing on that date.

Respondent

has shown and petitioner does not dispute that the rehearing was
conducted on IR No. 2309204 at which Mr. Mertins appeared, that
Officer Genter was allowed to testify on petitioner’s behalf,
and that petitioner was timely provided a copy of the DHO report
of the rehearing.

Assuming that this court found due process

violations in petitioner’s first hearing and the BOP had not
voluntarily provided the rehearing, the relief that Mr. Mertins
would have received in this court is an order requiring the
respondent to restore petitioner’s good conduct time unless a
new hearing was conducted that complied with due process.
Sabatino v. Davis, 2010 WL 936062, *4 (D.Colo. 2010).

See

The BOP’s

grant of the rehearing afforded petitioner all of the relief he
9

could have received in this court.
was

provided,

the

allegations

in

Id.
the

Because the rehearing
petition

initial hearing have been rendered moot.
v.

Evans,

70

F.3d

petitioner’s

85,

federal

86

(10th

habeas

Cir.

regarding

the

Id. (citing see Hayes
1995)(holding

application

was

that

rendered

the
moot

because the state court reversed and remanded for new trial
petitioner's initial conviction before federal district court
reached

the

merits

of

petitioner’s

habeas

petition,

thus

providing petitioner with all the relief the federal court could
have

provided);

Harper

v.

Lee,

938

F.2d

104

(8th

Cir.

1991)(failure to provide inmate with right to present log books
at

disciplinary

hearing

was

cured

when

he

was

granted

a

rehearing and allowed to put the log books into evidence.).
The

court

concludes

that

Mr.

Mertins’

claims

in

his

petition of due process deprivations at his first disciplinary
hearing

are

moot

and

this

action

must

prejudice for lack of jurisdiction.
846;

Williams

2015)(noting

v.

Kastner,

dismissal

of

2015

habeas

be

dismissed

without

Craft, 473 Fed.Appx. at
WL

431400,

claims

on

*6

(W.D.Okla.

mootness

grounds

should be without prejudice)(citing id.)).
2.

Exhaustion
Respondent also argues in the A&R that this action should

be dismissed because Mr. Mertins never properly exhausted the
issues raised in his petition with respect to the alleged due
10

process

violations

at

his

initial

disciplinary

hearing.

Petitioner argues in his Traverse that respondent’s exhibit C
shows

to

decision

the
to

contrary

both

the

that

he

regional

timely

and

“appealed

central

the

office,”

DHO’s

that

he

included all the requisite information in that grievance, and
that it was “beyond his control” that the USPL failed to provide
the DHO report, the absence of which caused his appeals to be
rejected on procedural grounds.

Petitioner further alleges, and

respondent does not dispute, that Mr. Mertins never received the
DHO report from the first hearing.
as a consequence

that

Petitioner reasonably claims

the court should

waive the exhaustion

prerequisite in this case.
The court declines on the record before it to dismiss the
petition for failure to exhaust administrative remedies on the
claims

regarding

petitioner’s

first

hearing.

In

any

event,

whether or not Mr. Mertins properly and fully administratively
appealed his first hearing has little relevance since he was
provided a complete rehearing

that cured the defects in his

first.
3.

Due Process
Finally, respondent argues in the A&R that petitioner’s due

process rights were not violated at “the hearings” and that the
procedural elements required by Wolff v. McDonnell, 418 U.S.
539, 563-72 (1974), were “fully met” at the rehearing, including
11

that the record clearly reflects “some evidence” to find that
Mr. Mertins possessed stolen property as charged.
Petitioner argues in his Traverse that he was not given
sufficient notice of the prohibited conduct in that a person of
ordinary intelligence would not consider items discarded in the
trash to still be the property of another.

He reasons that the

milks were never stolen and thus there was no evidence that he
was in possession of “stolen” property.
claims

that

because

she

DHO

Potts

again

was

found

not

him

an

Finally, petitioner

impartial

guilty

of

decision

possession

of

maker
stolen

property despite the reporting officer’s opinion testimony that
petitioner was not guilty of this offense.
Respondent

argues

in

response

to

the

Traverse

that

petitioner is attempting to raise new due process violations and
issues based on the rehearing and contends that these new issues
have

not

been

exhausted.

The

court

agrees

that

any

claims

petitioner may have regarding the rehearing were not raised in
his petition or a properly amended petition, and that each such
claim must have been fully and finally appealed before it may be
raised in a federal habeas corpus petition.
Respondent also attempts to counter petitioner’s new claims
by

arguing

that

the

milk

remained

property

of

the

federal

government so there was some evidence it was stolen and that the
record shows in detail the evidence considered by the DHO and
12

the

reasons

for

her

decision,

which

effectively

petitioner’s completely unsupported claim of bias.

counters
Petitioner

replies that both hearings contained due process violations and
resulted in the same sanction, loss of 27 days good conduct
time.

He

also

argues

that

he

believed

Officer

Genter’s

testimony would be enough of a defense and had inadequate notice
that a different defense would be necessary.
The record shows that in connection with his rehearing, Mr.
Mertins
process.3

was

provided

the

three

essential

elements

of

due

He was given notice of the hearing and the charged

misconduct, the opportunity to present Officer Gunter as his
witness, and a detailed written account of the evidence relied
upon and the reasons for the action taken.

3

Petitioner’s legal

“Prison
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, 418 U.S. at 556.
Nevertheless, “an
inmate’s liberty interest in his earned good time credits cannot be denied
‘without the minimal safeguards afforded by the Due Process Clause . . . .’”
Taylor v. Wallace, 931 F.2d 698, 700 (10th Cir. 1991)(quoting Ponte v. Real,
471 U.S. 491, 495 (1985)). When a prison disciplinary proceeding may result
in the loss of good conduct credits, due process requires that the inmate
receive “(1) advance written notice of the disciplinary charges, (2) an
opportunity, when consistent with institutional safety and correctional
goals, to present witnesses and 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, MCI, Walpole v. Hill,
472 U.S. 445, 454 (1985). A review of prison disciplinary proceedings under
these standards does not require “examination of the entire record,
independent assessment of the credibility of witnesses or weighing the
evidence.” Id. at 455.
In addition, substantive due process requires that
the taking of credits be supported by “some evidence,” so that the issue is
simply “whether there is any evidence in the record that could support the
conclusion reached by the disciplinary board.” Id. at 455–456. In sum, this
court’s review of petitioner’s disciplinary proceeding is “limited to whether
the three steps mandated by Wolff were followed and whether there was some
evidence to support the disciplinary [hearing officer’s] findings.” Mitchell
v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996).

13

argument that taking 40 cartons of milk from the Food Services
trash cannot constitute possession of stolen property does not
convince the court that the DHO’s decision finding some evidence
of his guilt of taking property without authorization that was
not his in the necessarily very restricted prison setting, was
arbitrary and capricious.

Even if the decision of DHO Potts

upon rehearing might seem unnecessarily formulaic or the court
might have decided this matter differently,4 it has not been
shown to have been so arbitrary or capricious as to amount to a
violation of petitioner’s constitutional rights.

Thus, even if

the rehearing did not moot petitioner’s claims, the court would
find that petitioner is entitled to no relief.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed as moot, and all relief is denied without prejudice.
IT IS SO ORDERED.
DATED:

This 18th day of May, 2015, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

4

Officer Genter is to be commended for his honest attempts to rectify
what he came to believe was his initial incorrect presumption.

14