Marshall v. Laird

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee prerequisite by either paying the full fee or submitting a properly supported motion to proceed without prepayment of fees. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 6/25/2013. (Mailed to pro se party LaRon Marshall by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LaRON MARSHALL,
Petitioner,
v.

CASE NO.

13-3098-SAC

PAUL LAIRD,
Regional Director,
Respondent.
MEMORANDUM AND ORDER
This petition for writ of mandamus was filed pursuant to 28
U.S.C. § 1651 by an inmate of the United States Penitentiary,
Administrative Maximum Prison, Florence, Colorado (“ADX”).

The

sole defendant, Paul Laird, is described as the Regional Director
for the North Central Region of the Bureau of Prisons (BOP) in Kansas
City, Kansas.

The court is asked to order defendant Laird to compel

correctional officers and/or the Disciplinary Hearing Administrator
at the ADX “to conduct a disciplinary hearing forthwith” or within
a reasonable time to prevent “oppressive procedures prior to the
hearing” and “psychological devastation from being confined in the
SHU.”

Plaintiff alleges that the ADX officials he seeks to have

compelled to act are employees of defendant Laird.

FILING FEE

1

The fee for filing a civil action1 is $400.00, which includes
the statutory fee of $350.00 under 28 U.S.C. § 1914(a) and an
administrative fee of $50.00 under § 1914(b); or $350.00 for one
granted leave to proceed without prepayment of fees.

Plaintiff has

submitted a pleading that was docketed as his Motion to Proceed in
forma pauperis (Doc. 2).

However, this motion does not comport with

federal law or local court rule.

Under 28 U.S.C. § 1915(a)(1), a

prisoner seeking to bring a civil action in forma pauperis must submit
an affidavit that includes a statement of all his assets in addition
to the inmate’s averment that he is unable to pay the fee.

He must

also submit a certified copy of his inmate trust fund account
statement for the six-month period immediately preceding the filing
of his complaint.

28 U.S.C. § 1915(a)(2).

The prisoner must obtain

this certified statement from the appropriate official of each prison
at which he was or is confined.

Plaintiff’s allegation that his

counselor did not have the time to print his account information
within three days of his request is not sufficient to excuse him from
satisfying the statutory prerequisites.
that

this

motion

be

submitted

upon

Local court rule requires
court-approved

forms.

Plaintiff is given time to file a properly-supported motion upon

1

The Tenth Circuit has held “that petitions for writ of mandamus are included
within the meaning of the term ‘civil action’ as used in § 1915” where habeas matters
are not the underlying concern. Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.
1996); cf. York v. Terrell, 344 Fed.Appx. 460, 462 (10th Cir. 2009)(unpublished);
see In re Grant, 635 F.3d 1227, 1230–32 (D.C.Cir. 2011)(prisoners must pay the
entire fee in mandamus actions under the Prisoner Litigation Reform Act).

2

court-approved forms.

If he fails to comply within the prescribed

time this action may be dismissed without further notice.

In

addition, once the court is provided the requisite financial
information, it is required to determine whether or not Mr. Marshall
is to be assessed an initial partial filing fee.
Mr. Marshall is reminded that even if he is granted leave to
proceed in forma pauperis in this action, he will remain obligated
to pay the full amount of the $350.00 statutory fee, but may do so
in installments.2

28 U.S.C. § 1915(b)(1) and (2).

FACTUAL BACKGROUND AND CLAIMS
As the factual basis for this civil action, plaintiff alleges
the following.

On April 24, 2013, he was transferred to the Special

Housing Unit (SHU) at the ADX “for Code 224.”

Lieutenant Sourbroyh3

“suspended” the incident reports for incorrect dates or times pending
a rewrite.

On April 28, the rewritten report of Officer Pearsall

was delivered to plaintiff.

On May 10, the rewritten report of

Officer Basta was delivered.

Plaintiff asserts that his due process

rights were violated because Basta’s rewritten report was not
2

The $50.00 general administrative fee does not apply to prisoners proceeding
in forma pauperis. Accordingly, if petitioner seeks and is granted leave to
proceed in forma pauperis in this action, he will be obligated to pay the full
$350.00 district court filing fee. Being granted leave will allow him to do so
over time by payment of an initial partial filing fee assessed by the court, if
any, and thereafter by automatic payments deducted from his inmate trust fund
account as authorized under § 1915(b)(2).
3

Plaintiff’s printing is difficult to read, and thus some of the names may
not be spelled as intended.

3

delivered within “three work days” of the directive to rewrite, which
he claims is the maximum time under “28 C.F.R. § 541.”

The court

is asked to compel defendant Laird to “order his employees” to conduct
an immediate disciplinary hearing or immediately release plaintiff
from the SHU as well as give plaintiff “days credit” prior to his
being heard on the pending incident reports.4

The instant petition

was executed on May 21, 2013.

SCREENING
Because plaintiff is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim upon which
relief may be granted, or seeks relief from a defendant immune from
such relief.

28 U.S.C. § 1915A (a) and (b).

Having examined all

materials filed, the court finds that this action is subject to being
dismissed as frivolous and for failure to state a claim.

Gabriel

v. U.S. Parole Com’n, 319 Fed.Appx. 742 (10th Cir. 2009)(unpublished)
Id.5 (affirming dismissal of mandamus petition as frivolous under §
1915(e)(2)(B)); Fay v. U.S., 389 Fed.Appx. 802, 803–04 (10th Cir.
2010)(unpublished)(Action before district court and this appeal
found to be frivolous and to count as strikes where appellant failed
4

Plaintiff appears to complain about loss of “credit for days,” but does not
describe what type of or how much credit is being lost. As will be discussed later,
claims regarding sentence credit are habeas in nature.
5

Unpublished opinions are cited herein for persuasive value only and not as
binding precedent. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

4

to demonstrate that he was entitled to the “extraordinary remedy”
of a writ of mandamus.).

RELEVANT LEGAL STANDARDS
The mandamus statute, 28 U.S.C. § 1361, provides that “[t]he
district court shall have jurisdiction of any action in the nature
of mandamus to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the plaintiff.”
“[T]he remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations.”

Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33, 34 (1980)(per curiam); West v. Spellings, 480 F.Supp.2d
213, 217 (D.D.C. 2007).

To obtain mandamus relief, the plaintiff

must show that he has a clear right to the relief sought, the defendant
has a plainly defined and peremptory duty to perform the act in
question, and no other adequate remedy is available.

See Heckler

v. Ringer, 466 U.S. 602, 616 (1984)(“The common-law writ of mandamus,
as codified in 28 U.S.C. § 1361 . . . is intended to provide a remedy
for a plaintiff only if he has exhausted all other avenues of relief
and only if the defendant owes him a clear nondiscretionary duty.”);
Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1236 (10th Cir.
2005); Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988); West,
480 F.Supp.2d at 217.

“A plaintiff bears a heavy burden of showing

that his right to a writ of mandamus is ‘clear and indisputable.’”
Id. (citing In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)).
5

Courts

have no authority under the mandamus statute to order a government
official to perform a discretionary duty.
217.

West, 480 F.Supp.2d at

When a decision is committed to the discretion of an agency

official, as are the administrative decisions regarding housing
assignment and security classification, a litigant generally will
not have a clear and indisputable right to any particular result.
See Daiflon, 449 U .S. at 36; Armstrong v. Cornish, 102 Fed.Appx.
118, 120 (10th Cir.)(unpublished), cert. denied, 543 U.S. 960 (2004).
Plaintiff mainly bases his claims for relief on an alleged
violation of BOP regulations.

An agency’s failure to follow its own

regulations does not rise to the level of a constitutional violation
unless the regulations themselves are compelled by the Constitution.
See Gibson v. Federal Bureau of Prisons, 121 Fed.Appx. 549, 551 (5th
Cir. 2004)(unpublished)(finding that violation of BOP regulation in
itself is not a constitutional violation); Phillips v. Norris, 320
F.3d 844, 847 (8th Cir. 2003)(“[T]here is no federal constitutional
liberty interest in having . . . prison officials follow prison
regulations.”); United States v. Knottnerus, 139 F.3d 558, 561 n.
5 (7th Cir.), cert. denied, 525 U.S. 860 (1998).

Thus, the fact that

a disciplinary hearing is not held within the time specified in BOP
regulations does not, without more,
violation.

amount to a due process

See Blum v. Federal Bureau of Prisons, 189 F.3d 477, *2

(10th Cir. 1999)(Table).

Moreover, absent a showing of prejudice,

a technical violation of BOP regulations governing disciplinary
6

proceedings does not necessarily entitle an inmate to judicial
relief.

See Von Kahl v. Brennan, 855 F.Supp. 1413, 1421 (M.D.Pa.

1994)(In a federal inmate disciplinary proceeding “where the minimal
requirements of due process have been met, an inmate must show
prejudice to the rights sought to be protected by the regulation
claimed to be violated” in order to obtain habeas relief.); Moles
v. Holt, 221 Fed.Appx. 92, 95–96 (3rd Cir. 2007)(unpublished).
Plaintiff also asserts a violation of due process.

The United

States Constitution guarantees due process when a person is to be
deprived of life, liberty, or property.
16 F.3d 367, 369 (10th Cir. 1994).

See Templeman v. Gunter,

Constitutionally adequate due

process at a prison disciplinary hearing requires that a prisoner
be

provided

with

advance

written

notice

of

the

charges,

an

opportunity to call witnesses and present documentary evidence in
his defense if doing so would not be unduly hazardous to institutional
safety or correctional goals, and a written statement by the
factfinders of the reasons for the decision and the evidence on which
they relied.

See Wolff v. McDonnell, 418 U.S. 539, 563–66 (1974);

Smith v. Maschner, 899 F.2d 940, 946 (10th Cir. 1990).

Due process

also requires that there be some evidence to support the disciplinary
hearing findings.

Superintendent, Mass. Correctional Inst, Walpole

v. Hill, 472 U.S. 445, 454 (1985); Mitchell v. Maynard, 80 F.3d 1433,
1445 (10th Cir. 1996).

An inmate is entitled to procedural due

process protections during disciplinary proceedings only when a
7

liberty interest is at stake.
480 (1995).

See Sandin v. Conner, 515 U.S. 472,

A denial of privileges does not impose an atypical and

significant hardship in relation to the ordinary incidents of prison
life, and consequently no liberty interest is at stake where the
inmate may be sanctioned with a loss of privileges only.

Id. at 484;

see Blum, 189 F.3d 477, at *3 (concluding ninety-day confinement
without store privileges, radio, and phone calls as enjoyed by other
inmates in segregation did not differ in significant degree and
duration to create a protected liberty interest).

On the other hand,

a liberty interest may be at stake when an inmate can be sanctioned
with a loss of earned good time.

FAILURE TO STATE A CLAIM FOR MANDAMUS RELIEF
Plaintiff fails to allege facts establishing any of the
requisite elements for mandamus relief.

He has not satisfied his

heavy burden of showing that he has a clear right to the relief sought.
He seeks an immediate hearing and removal from the SHU, but does not
allege sufficient facts to show his entitlement to either.

He does

not describe the circumstances

charged

offense(s),

6

proceedings.

which

can

or the nature

determine

the

course

of his
of

disciplinary

Nor does he provide copies or summaries of any notices

6

28 C.F.R. § 541.3 lists 224 as a “high severity” prohibited act: “Assaulting
any person (a charge at this level is used when less serious physical injury or
contact has been attempted or accomplished by an inmate).”
The “available
sanctions” for high severity level offenses include but are not limited to
forfeiture or withholding of good time and disciplinary segregation.

8

or scheduling issued thus far in his pending disciplinary proceedings
at the ADX.
Plaintiff also fails to show that defendant Laird has a “plainly
defined and peremptory duty” to perform the act(s) which the court
is asked to compel.

He does not allege facts showing that defendant

Laird is duty bound to either conduct a disciplinary hearing at the
ADX himself or to order the members of the Unit Disciplinary Committee
(UDC) or the Disciplinary Hearing officer (DHO) at the ADX to conduct
an immediate hearing on Mr. Marshall’s disciplinary charges.

The

same is true with respect to compelling defendant Laird to order ADX
employees to remove plaintiff from the SHU.
Rather than setting forth facts establishing plaintiff’s clear
right to relief and a peremptory duty on the part of defendant, Mr.
Marshall bases his claim for mandamus relief on “28 C.F.R. § 541,”
which he argues limits the time for a hearing to three work days.
However, section 541 contains numerous subsections governing many
aspects of “Inmate Discipline and Special Housing Units,” and
plaintiff does not even cite one in particular.

A review of the BOP

regulations governing the prison disciplinary process reveals that
a hearing is not necessarily the immediate or ultimate outcome when
an inmate receives an incident report (IR).

Section 541.5(a)

provides that the “discipline process starts when staff witness or
reasonably believe” that an inmate has committed a prohibited act
and a staff member issues an incident report “describing the incident
9

and the prohibited act(s).”

Section 541.5(b) provides that the IR

is initially investigated by a “Bureau staff member” who informs the
inmate of the charges and his right to remain silent.

It further

provides that the staff investigation may be suspended if the
incident is being investigated for possible criminal prosecution.
Other alternatives include that the investigator may ask for the
inmate’s statement or the IR may be informally resolved.

Section

541.7 provides that once the staff investigation is complete a Unit
Discipline Committee will review the IR.

An inmate may appear before

the UDC during its review, with certain exceptions, and may make a
statement

and

541.7(d)(1).

present

documentary

evidence.

28

C.F.R.

§

Section 541.7 also provides that after reviewing the

IR, the UDC will make one of four decisions:
(1) You committed the prohibited act(s) charged, and/or
a similar prohibited act(s) as described in the incident
report;
(2) You did not commit the prohibited act(s) charged; or
(3) The incident report will be referred to the Discipline
Hearing Officer for further review, based on the
seriousness of the prohibited act(s) charged.
(4) If you are charged with a Greatest or High severity
prohibited act, or are an inmate covered by § 541.4, the
UDC will automatically refer the incident report to the
DHO for further review.
Id.

The inmate receives a written copy of the UDC’s decision

following its review.

Id., subsection (h).

The UDC can impose a

variety of sanctions, but not loss of good conduct sentence credit,

10

disciplinary segregation, or money fines.

Id., subsection (f).

If

the UDC refers the IR to the DHO, it advises the inmate of his rights
at the upcoming DHO hearing.

Id., subsection (g).

The DHO will only

conduct a hearing on the IR if the IR is referred by the UDC.

28

C.F.R. § 541.8.
Subsection(c)(Timing) of § 541.7 provides that:
The UDC will ordinarily review the incident report within
five work days after it is issued, not counting the day
it was issued, weekends, and holidays. UDC review of the
incident report may also be suspended if it is being
investigated for possible criminal prosecution.
Id.

This

timing

regulation

provides

that

the

UDC

review

“ordinarily” shall be conducted during this time, not that a hearing
during this period is mandatory.

Barner v. Williamson, 233

Fed.Appx. 197, 199 (3rd Cir.)(unpublished), cert. denied, 552 U.S.
966 (2007); Sinde v. Gerlinski, 252 F.Supp.2d 144, 149 (M.D.Pa.
2003).

This provision is further qualified in that it may be

suspended in the event of investigation for criminal prosecution.
Given these qualifiers, plaintiff cannot rely upon this time limit
to establish that defendant Laird has a “plainly defined and
peremptory duty” to take the requested action(s). 7

See Marquez–

Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995)(“The importance of
the term ‘nondiscretionary’ cannot be overstated—the judiciary
cannot infringe on decision-making left to the Executive branch’s
7

The section on the timing of a DHO hearing, 28 C.F.R. § 541.8(c), provides
only that: “You will receive written notice of the charge(s) against you at least
24 hours before the DHO’s hearing.”

11

prerogative”);

Strong

v.

Lapin,

2010

WL

276206

(E.D.N.Y.

2010)(unpublished)(“To the extent that petitioner’s claim is based
on a perceived deviation from agency procedure, the BOP is afforded
discretion to modify the procedures and therefore, no clearly defined
peremptory duty exists for which a writ of mandamus may issue.”).
Furthermore, plaintiff does not even attempt to show that no
other adequate remedy is available.

Nor could he since the BOP

regulations plainly make the long-established prison administrative
remedies available.

UDC and DHO actions may be appealed through the

Administrative Remedy Program: 28 C.F.R. part 542, subpart B. 8
Plaintiff suggests no reason why he cannot challenge any hearing
delays, denial of credit, and other matters arising from his
disciplinary proceedings in the proceedings themselves as well as
through administrative appeals.
There are also other more appropriate judicial remedies for
plaintiff’s claims of a violation of agency regulations or denial
of due process in connection with disciplinary proceedings as well
8

The exhaustion procedure established by the BOP to be utilized by federal
inmates is set forth at 28 C.F.R. §§ 542.10–542.19. Except for claims for which
other administrative procedures have been established, federal inmates may seek
“formal review of an issue which relates to any aspect of his/her own confinement.”
28 C.F.R. § 542.10(a). In the case of appeals from findings of a DHO, an appeal
of the DHO’s decision shall be submitted initially to the Regional Director for
the region where the inmate is currently located. 28 C.F.R. § 542.14(d)(2). The
Regional Director shall respond within thirty days. 28 C.F.R. § 542.18. However,
an extension of an additional thirty days for a response from the Regional Director
may be made in appropriate circumstances. Id. An inmate who is not satisfied
with the Regional Director’s response may appeal to the General Counsel within
thirty days of the date of the Regional Director’s response.
28 C.F.R. §
542.15(a). The General Counsel shall respond within forty days. 28 C.F.R. §
542.18. However, an extension of an additional forty days for a response from
the General Counsel may be made in appropriate circumstances. Id. “Appeal to
the General Counsel is the final administrative appeal.” 28 C.F.R. § 542.15(a).

12

as any claim regarding conditions of confinement in the SHU.

To the

extent that plaintiff seeks to challenge his own prison disciplinary
proceedings or sanctions at the ADX, he is entitled to no relief under
§ 1651 or in this court.

In Preiser v. Rodriguez, 411 U.S. 475,

498-99 (1973), the U.S. Supreme Court held that a habeas corpus
petition is the proper mechanism for an inmate to challenge the “fact
or duration” of his confinement; and the Court later extended this
ruling to challenges to prison disciplinary proceedings that affect
the length of confinement, such as those that result in the
deprivation or loss of good conduct time.9

Muhammad v. Close, 540

U.S. 749 (2004); Edwards v. Balisok, 520 U.S. 641 (1997).

Likewise,

to the extent that Mr. Marshall seeks to challenge the conditions
in the SHU at the ADX, he may do so by filing a civil action against
the persons responsible for those conditions.10

9

A petition for a writ of habeas corpus must name as respondent the warden
or administrator of the facility where the petitioner is currently held in custody,
and this custodian is an indispensable party. Mr. Marshall’s Colorado custodian
is not located in this judicial district, which means that this court lacks
jurisdiction. Even if the court could liberally construe this action as a federal
habeas corpus petition, Mr. Marshall fails to state sufficient facts to support
a claim for relief under 28 U.S.C. § 2241 because he fails to provide crucial facts
regarding the disciplinary proceedings in which he seeks to have the court
intervene.
Furthermore, plaintiff’s bald assertions that the failure to hold an
immediate hearing and his placement in the SHU without a prior hearing violate
due process are insufficient to state a claim. The time regulation relied upon
by plaintiff does not contain mandatory language and does not create a liberty
interest protected by the Due Process Clause.
Moreover, the alleged time
violation is not shown to infringe the requirements set out in Wolff and therefore
does not rise to the level of a constitutional violation. See Von Kahl, 855 F.Supp.
at 1419–20. In addition, plaintiff alleges no facts showing that he has been
prejudiced as a result of the 4-day delay before delivery of the first rewritten
report or even the 16-day delay before delivery of the second rewritten report.
10

Mr. Laird appears to be named as defendant in this case based upon his
supervisory responsibility over BOP facilities in the region that includes the

13

With respect to plaintiff’s bald claim of denial of due process,
the reasoning in Brown v. Rios, 196 Fed.Appx. 681, 683 (10th Cir. 2006)
is persuasive here:
(Petitioner) complains that prison authorities (violated)
BOP regulations by failing to . . . provide him a UDC
hearing within three working days of the time staff became
aware of the incident . . . .
See 28 C.F.R. §§
541.15(a)-(b), 541.12, and 543.10 (2006).
These
allegations fail to raise a due process violation under
Wolff.
Prison regulations are “primarily designed to guide
correctional officials in the administration of a prison.
[They are] not designed to confer rights on inmates.”
Sandin v. Conner, 515 U.S. 472, 481-82, 115 S.Ct. 2293,
132 L.Ed.2d 418 (1995).
Where a liberty or property
interest has been infringed, the process which is due under
the United States Constitution is that measured by the due
process clause, not prison regulations.
(Citations
omitted).
Wolff mandates only a twenty-four hour advance notice of
a disciplinary hearing and an opportunity to present a
defense. It does not require a UDC hearing. . . . Even
if minor violations of BOP regulations occurred, they
would not rise to a constitutional violation under Wolff.
Id.
Finally, the court notes that the common law writ of mandamus,
as codified in § 1361, only provides a remedy “if [the petitioner]
has exhausted all other avenues of relief.”
Dist. Court, 426 U.S. 394, 402-03 (1976).

Kerr v. United States
The timing of Mr.

ADX. However, plaintiff alleges no facts showing Laird’s personal participation
in the delay of Mr. Marshall’s disciplinary hearing, his placement in the SHU,
or the conditions in the SHU. See Hill v. Pugh, 75 Fed.Appx. 715, 719 (10th Cir.
2003)(unpublished).
Personal participation of each named defendant is an
essential element of a civil rights claim. The persons that might have personally
participated in these events are, as plaintiff suggests, BOP employees at the ADX;
and this court has no personal jurisdiction over residents of Colorado.

14

Marshall’s complaint not long after the IRs were served upon him
plainly reflects that he has not exhausted the available prison
administrative remedies.

While the failure to exhaust is an

affirmative defense that need not be pleaded by plaintiff; the court
may sua sponte raise this threshold issue when lack of exhaustion
appears, as it does here, from the face of the complaint.
In summary, the only action plaintiff could conceivably bring
in this judicial district, since the ADX and its BOP employees are
not located here, is the mandamus petition against Mr. Laird; and
the court has no difficulty finding that plaintiff’s claim for
mandamus relief against Mr. Laird is frivolous and fails to state
a claim.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee prerequisite by either paying
the full fee or submitting a properly supported Motion to Proceed
without Prepayment of Fees.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to show cause why this action should not be
dismissed for failure to state a claim for mandamus relief and as
frivolous for the reasons stated herein.
The clerk is directed to send IFP forms to plaintiff.
IT IS SO ORDERED.
Dated this 25th day of June, 2013, at Topeka, Kansas.

15

s/Sam A. Crow
U. S. Senior District Judge

16