Joseph v. Maye

Filing 4

MEMORANDUM AND ORDER ENTERED: Petitioner is granted thirty (30) days in which to satisfy the filing fee prerequisite by either paying the fee of $5.00 or submitting a properly completed and supported motion for leave to proceed in forma pauperi s on court-provided forms. Within the same thirty-day period, petitioner is required to show cause why this action should not be dismissed for failure to state a claim under 28 U.S.C. 2241. Signed by Senior District Judge Richard D. Rogers on 10/23/2013. (Mailed to pro se party Johnny Josephby regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHNNY JOSEPH,
Petitioner,
v.

CASE NO.

13-3146-RDR

CLAUDE MAYE,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas (USPL).

Having examined the materials filed,

the court finds that petitioner has not satisfied the filing fee and
fails to state a claim.

He is given time to cure these deficiencies.

FILING FEE
The statutory fee for filing a federal habeas corpus petition
is $5.00.

Petitioner has neither paid the fee nor submitted a motion

to proceed in forma pauperis (IFP).

This action may not proceed

until the filing fee is satisfied in one of these two ways.

A

prisoner seeking to bring a habeas action without payment of fees
must submit an affidavit that includes a statement of the prisoner’s
assets.

28 U.S.C. § 1915(a)(1).

In addition, the prisoner must

submit a certified accounting of the funds available to him in his

1

institutional account.

D.Kan.Rule 9.1(g); 1 see Rules Governing

Section 2254 Cases in the United States District Courts, Rule
3(a)(2)(habeas petition must be accompanied by “a motion for leave
to proceed in forma pauperis, the affidavit required by 28 U.S.C.
§ 1915, and a certificate from the warden or other appropriate officer
of the place of confinement showing the amount of money or securities
that the petitioner has in any account in the institution”).
Petitioner is ordered to either pay the filing fee or file a proper
motion to proceed in forma pauperis upon forms provided by the court
that is supported by the necessary financial information.

The clerk

shall be directed to send forms to petitioner for filing a proper
IFP motion.

If Mr. Joseph does not satisfy the filing fee within

the prescribed time, this action may be dismissed without prejudice
and without further notice.

ALLEGATIONS AND CLAIMS
As the factual basis for his petition, Mr. Joseph alleges as
follows.

While an inmate at the USPL, he was charged in an Incident

Report (IR) with the prohibited act of Possession of a Hazardous Tool,

1

D.Kan.Rule 9.1(g)(2)(A) provides:
Where a petitioner, movant, or plaintiff is an inmate of a penal
institution and desires to proceed without prepayment of fees, he or
she must also submit a certificate executed by an authorized officer
of the institution in which he or she is confined. The certificate
must state the amount of money or securities on deposit to his or her
credit in any account in the institution.

2

Code 108. 2

In the IR under “Description of Incident,” which was

section 11, it was reported that:

“On the above date and time I,

Ofc. J. Obas while conducting my daily shakedown discovered the vent
in room GO2-912 which house (sic) Inmate Joseph, Johnny # 96454-071
partly unscrewed,” and a green and black AT&T Samsung cell phone
inside the vent.

Petition (Doc. 1) at 4,5.

It is not disputed that

at the time of the incident, Mr. Joseph was housed in Cell 912.
Section 6 of the IR was “Place of Incident.”

In Section 6, it was

reported that the incident occurred in “GO2-921U.”

Thus, the cell

number in section 6 is different from the number written in Section
11.

Section 11 is also different in that a “U” followed the cell

number, which designated the upper bunk rather than the lower bunk.
Petitioner argues that this U suggests a different location for the
phone rather than that of the AC vent.
Other than the phone, the IR was the only evidence against Mr.
Joseph.

In response to the charge, he stated that: “The phone is

not mine,” and “I have never seen the phone.”

The reporting officer

was not called to clarify the varying information.

Petitioner was

found guilty by the Disciplinary Hearing Officer (DHO) on August 2,
2012, and was sanctioned with a loss of good time.

He appealed to

the Regional Office of the Bureau of Prisons (BOP), which concurred

2
Mr. Joseph does not provide either a copy of the IR or its date. However,
the “actions of the Discipline Hearing Officer” of which he complains were taken
in either July or August 2012. Thus it is assumed that the IR was written near
that time.

3

with the DHO’s interpretation of the incident.

Petitioner claimed

that he had asked for cell-phone use records to be produced, but was
told they were not relevant because he was charged with possession
not use of the cell phone.

He was also told that the record revealed

he never requested evidence/documents.

In response to his claim

that he did not commit the prohibited act, he was told that contraband
had been found in a common area of his cell when it was his
responsibility to keep his cell free of contraband.

Petitioner

exhibits the Response to his Regional Administrative Remedy Appeal
that he received on November 1, 2012.

With respect to the IR

containing conflicting information, it provides in part:
[Y]ou complain two conflicting locations of incident were
identified in the DHO report.
Contact with the
institution revealed this was a typographical error and
staff inadvertently identified the wrong location in
Section 11. This was verified through review of your
inmate quarters history form.
Petition (Doc. 1-1) Exhibit.

He appealed to the Office of General

Counsel in November 2012 but received no response, and was advised
by staff to continue as if denied.
Petitioner claims that the IR was contradictory and ambiguous
on its face and that the question of which facts should be credited
was not resolved.

He further claims that the IR was “full of mistaken

information” and “fundamentally unreliable,” so that there was no
evidence or “clearly not sufficient substantial evidence to support
the disciplinary findings.”

He argues that if “one discounts the

4

conflicting information in the IR,” no evidence remains.
Mr. Joseph asserts a violation of due process.

He seeks

expungement of the incident from his record and restoration of good
time.

FAILURE TO STATE A CLAIM
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court
held that the Due Process Clause provides certain minimum protections
for inmates facing the loss of good time credits as a disciplinary
sanction.

However, the “full panoply of rights due a defendant in

[criminal] proceedings does not apply” in prison disciplinary
proceedings because they are not part of a defendant’s criminal
prosecution.

Wolff, 418 U.S. at 556.

Rather, the Court held in

Wolff that an inmate must receive: “(1) advance written notice of
the disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and
present documentary evidence in his defense; and (3) a written
statement by the factfinder of the evidence relied upon and the
reasons for the disciplinary action.”

Superintendent, Mass. Corr.

Inst. v. Hill, 472 U.S. 445, 454 (1985)(discussing Wolff, 418 U.S.
at 563–67).

If the foregoing protections are afforded, the

reviewing court must only be able to ascertain “some evidence” in
the proceedings below in order to uphold the disciplinary action.
Id. (quoting Hill, 472 U.S. at 455)(internal quotation marks
5

omitted)(“the requirements of due process are satisfied if some
evidence supports the decision by the prison disciplinary board to
revoke good time credits.”).

As the Court in Hill explained, this

standard of proof is not demanding because “[a]scertaining whether
this standard is satisfied does not require examination of the
credibility of witnesses, or weighing of the evidence.

Instead, the

relevant question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary board.”
Id. at 455–56; Mendoza v. Tamez, 451 Fed.Appx. 715, 717 (10th Cir.
2011)(unpublished)
exacting.”).

3

(“The

‘some

evidence’

standard

is

not

Due process “does not require evidence that logically

precludes any conclusion but the one reached by the disciplinary
board,” id. at 457, as long as “the record is not devoid of evidence
that the findings of the disciplinary board were without support or
otherwise arbitrary.”

The disciplinary decision will be upheld even

if the evidence supporting the decision is “meager.”

Mitchell v.

Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996)(citing Hill, 472 U.S.
at 457).

The “relevant inquiry is what process (the inmate)

received, not whether the [hearing officer] decided [his] case
correctly.”

Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011)(per

curiam).
The fact that the only evidence other than the phone against
Mr. Joseph was the IR, taken as true, does not entitle him to federal
3
This and other unpublished opinions are cited herein as persuasive authority
pursuant to Tenth Circuit Rule 32.1.

6

habeas corpus relief.

“The information provided in a written

incident report, standing alone, can satisfy the ‘some evidence’
standard.”

Love v. Daniels, 2012 WL 6923719, *7 (D.Colo. 2012), R&R

adopted, 2013 WL 247778 (D.Colo. Jan. 23, 2013)(citing Hill, 472 U.S.
at 456)(prison guard’s copies of his written report supported
conclusion that the evidence before the disciplinary board was
sufficient to meet the requirements imposed by the Due Process
Clause);

Hudson

v.

Johnson,

242

F.3d

534,

536–37

(5th

Cir.

2001)(information contained in an incident report is “some evidence”
of inmate’s guilt)).

The IR is the reporting officer’s version of

the events giving rise to the disciplinary charge.
inmate

questions

statements,

a

the

court

credibility
is

not

of

required

determinations or reweigh the evidence.”
56.

the

Even where an

reporting

“to

make

officer’s

credibility

See Hill, 472 U.S. at 455–

Thus, contrary to petitioner’s argument, “it is proper to rely

upon a written report” in a prison disciplinary proceeding.

See Id.

at 456; Smith v. Samu, 54 F.3d 788, at *2 (10th Cir. May 10,
1995)(unpublished)(rejecting claim that it was improper to rely on
prison guard’s report because it was hearsay).

Ruelas v. Zuercher,

240 Fed. Appx. 796, 797 (10th Cir. 2007)(unpublished)(“[incident]
report alone constitutes ‘some evidence’ of Petitioner’s guilt” and
due process requirements were thus satisfied.); Longstreth v.
Franklin,

240

Fed.Appx.

264,

2007)(unpublished)(Uncorroborated
7

incident

267
report

(10th

Cir.

submitted

in

disciplinary proceeding constituted “some evidence” of prisoner’s
guilt, and relief in federal habeas corpus would not lie from hearing
officer’s determination based on such report.)(citing Hill, 472 U.S.
at 455–56).
Here, according to petitioner’s own allegations a cell phone
was found in a cell during a shakedown and the reporting officer
stated that the cell in which he found the phone was petitioner’s
cell.

Petitioner does not deny that there was a cellphone found in

a vent in his cell.

Instead, he alleges that it was not his phone

and he had never seen it.

Thus, the finding of guilty was supported

by “some evidence.”
The Tenth Circuit Court of Appeals has held that a misconduct
report

in

combination

with

the

presumption

of

constructive

possession is sufficient evidence to meet the “some evidence”
standard.

See Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 812

(10th Cir. 2007).

The presumption of constructive possession makes

an inmate responsible for anything found in his cell absent evidence
that makes a finding that the inmate possessed the item so unreliable
that it does not satisfy the minimum constitutional “some evidence”
standard.
1992).

See Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir.

In Howard, the Tenth Circuit Court of Appeals indicated its

agreement with “[t]he proposition that constructive possession
provides ‘some evidence’ of guilt when contraband is found where only
a few inmates have access.”

Howard, 487 F.3d at 812 (citing
8

Hamilton, 976 F.2d at 345).4

This court has upheld the application

of the presumption of constructive possession on facts similar to
those alleged by petitioner.

See Miskovsky v. Parker, 2007 WL

4563671, *9 (W.D. Okla. Dec. 31, 2007), appeal dismissed, 285
Fed.Appx. 570 (10th Cir. 2008)(citing e.g., Thompson v. Hawk, 978
F.Supp. 1421, 1422-24 (D.Kan. 1997)(finding that presumption of
constructive possession was appropriately applied in case where
weapon was found in light fixture of cell occupied exclusively by
habeas petitioner despite the petitioner’s allegations that he had
no knowledge of the weapon in the fixture, no access to the fixture
because it required a special tool to open, other inmates could access
petitioner’s cell under prison policy permitting cell doors to be
open

during

the

day,

and

where

shakedown

records

failed

to

demonstrate cell had been searched prior to petitioner’s occupation
of the cell).
Furthermore, typographical errors in the Incident Report do not
amount to a violation of due process.
WL 1372405, *4 (D.Colo. 2010).

See Flahiff v. Cooper, 2010

In the instant case, the cell number

was written correctly in the IR along with the reporting officer’s
statement that the cell referred to was petitioner’s cell.

The

4
Inmates may even be held to possess items jointly. See Giles v. Hanks, 72
Fed.Appx. 432, 433-34 (7th Cir. 2003)(unpublished)(finding that even if one
occupant of a cell concedes ownership of contraband the other occupant may also
be held accountable because two individuals may exercise joint possession)(citing
United States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001)); Mason v. Sargent,
898 F.2d 679, 680 (8th Cir. 1990)(concluding that prisoner could not prevail in
an action under 42 U.S.C. § 1983 where he was held accountable for contraband found
in a shared locker even after his cellmate admitted to placing the contraband into
the locker).

9

transposition of digits in the cell number in another section of the
IR does not render this evidence unreliable.

The designation of U,

which petitioner himself explains as indicating upper as opposed to
lower bunk, in no way contradicts the location of the cell phone.
Based on the foregoing, the court finds that this matter is
subject to dismissal because Mr. Joseph fails to state a claim of
denial of due process in the disciplinary proceedings.

SUPPLEMENT TO PETITION
Over a month after this habeas corpus petition was filed,
petitioner submitted a document entitled “Attachment to Writ,” in
which he continues to allege facts and make arguments in support of
his

petition.

The

foregoing

findings

of

the

court

are

not

contradicted by the mainly repetitive statements in petitioner’s
supplement.
In this supplement, petitioner requests additional relief in
the form of restoration of phone privileges, visitation, and “true
links” as well as punitive damages in the amount of $50,000 for injury
to him and his family.

Petitioner does not allege that the

restorations he seeks are of privileges that were taken away as
sanctions in the challenged disciplinary action.

In any event, the

revocation of privileges as a sanction in disciplinary proceedings
does not implicate due process.

It follows that petitioner has not

shown that he is entitled to this additional relief.
10

Furthermore,

the only relief properly requested in a habeas corpus petition is
release from or shortened confinement.

Money damages are not

properly sought in a habeas action.5
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days in which to satisfy the filing fee prerequisite by either paying
the fee of $5.00 or submitting a properly completed and supported
motion for leave to proceed in forma pauperis on court-provided
forms.
IT IS FURTHER ORDERED that within the same thirty-day period,
petitioner is required to show cause why this action should not be
dismissed for failure to state a claim under 28 U.S.C. § 2241.
The clerk is directed to send IFP forms to petitioner.
IT IS SO ORDERED.
DATED:

This 23rd day of October, 2013, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

5
In order to seek money damages based upon conditions of confinement,
including denial of phone and visitation privileges, an inmate must file a civil
rights complaint. The statutory fee for a civil rights complaint is $400.00, or
$350.00 if the inmate is granted leave to proceed without prepayment of fees. Even
if the inmate is granted leave to proceed without prepayment of fees, he remains
obligated to pay the filing fee in full, but is allowed to do so in installments
through payments automatically deducted from his inmate account. Furthermore,
denial of privileges to a prison inmate does not, without more, amount to a federal
constitutional violation. In addition, a claim for money damages based upon
sanctions imposed in a disciplinary proceeding is barred unless and until the
disciplinary proceeding has been overturned through appropriate procedures.

11