Acrey v. English
MEMORANDUM AND ORDER ENTERED: The petition for writ of habeas corpus is denied. Signed by District Judge John W. Lungstrum on 04/24/17. Mailed to pro se party Kirk Acrey by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 16-3211-JWL
NICOLE ENGLISH, Warden,
MEMORANDUM AND ORDER
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241.
Petitioner, a prisoner in federal custody at USP-Florence, proceeds pro se. Petitioner challenges
prison disciplinary proceedings while in custody at USP-Leavenworth (“USPL”). The Court
issued an Order to Show Cause, Respondent filed an Answer and Return (Doc. 9), Petitioner
filed a Traverse (Docs. 10, 13), and the matter is ready for resolution. The Court finds that
Petitioner does not allege facts establishing a federal constitutional violation and denies relief.
Petitioner was incarcerated with the Federal Bureau of Prisons (“BOP”) at USPL at the
time of filing his Petition. On January 11, 2008, Petitioner was sentenced in the U. S. District
Court for the Northern District of Illinois, and is serving a sentence for Distribution of Crack
Cocaine in violation of 21 U.S.C. § 841(a)(1). Petitioner has a projected release date of June 30,
2018, via good conduct time release. Disciplinary proceedings at USPL for use of the mail for
an illegal purpose, attempted stealing and unauthorized reproduction of any document, resulted
in Petitioner’s loss of forty-one days of good time credit and loss of a one-year credit for
participating in the Residential Drug Abuse Program (“RDAP”). Petitioner alleges the following
grounds in his petition: (1) the Incident Report was delivered to him 26 hours after the incident
instead of within the 24-hour time frame outlined in BOP policy; (2) his case manager talked to
the Disciplinary Hearing Officer (“DHO”) about the incident even though he was not IDCcertified; and (3) the administration altered the delivery date for the Incident Report in an attempt
cover up their wrongdoing. Petitioner asks the Court to restore his forty-one days of good
conduct time and to remove the discipline from his record so he can receive his one-year
reduction in his sentence under 18 U.S.C. § 3621(e) for participation in the RDAP.
On October 5, 2015, inventoried property of another inmate who was scheduled to be
released that day (the “releasing inmate”), included two sealed envelopes with Petitioner’s
register number and return address. (Doc. 16–1, at 43.) The envelopes were discovered the
previous night, when the releasing inmate was locked up in the Special Housing Unit (“SHU”).
Although Petitioner requested to have the letters returned to him several times throughout that
evening, the officer working the housing unit sent the letters to the Special Investigative Section
(“SIS”). Id. While the incoming SIS Technician approached the SIS Office, he was stopped by
Petitioner, who stated that he wanted his letters back. Id.
The envelopes contained letters to the IRS and Child Support Services, a self-made
money order, a 1040 Individual Income Tax Return showing Petitioner is owed $35,464.65 from
a 1099 OID form, a 1040-V payment voucher for the same amount to be used to pay child
support, and a letter to Felonda instructing her on how to fill out the 1099 OID and 1096 forms,
along with sample copies of the forms. See id. at 49–59, 74.
The SIS Technician who opened the envelopes wrote Petitioner’s Incident Report
No. 2769171 (“IR”) on October 6, 2016, for violating Code 196, use of the mail for an illegal
purpose; Code 219 (A), stealing (attempted); and Code 314, unauthorized reproduction of any
document. Id. The reporting staff member signed the IR at 7:00 a.m. on October 6, 2016. The
IR, which contained a delivery date and time of October 7, 2015, at 9:35 a.m., was delivered to
Petitioner and Petitioner was advised of his rights. See Doc. 13, at 16. Later, the delivery date
on the IR was changed to October 6, 2015. See id. at 17.
The IR was suspended pending a referral to the Federal Bureau of Investigation for
potential prosecution. (Doc. 16–1, at 61–63.) Prosecution was declined, and the IR was released
for administrative processing on October 13, 2015. Id. The IR was reissued to Petitioner, and
investigated by staff on October 13, 2015. Petitioner was again advised of his rights during the
investigation, and stated “I have no statement to make.” Id. The IR was forwarded to the Unit
Discipline Committee (“UDC”) for further disposition. Id.
Petitioner had an opportunity to appear before the UDC on October 13, 2015, and stated
“[t]hey violated the 24 hour [r]ule.” Id. at 43. The UDC referred the matter to the DHO for
further disposition, due to the severity of the charge. Id.
Petitioner was given a Notice of Disciplinary Hearing before the DHO and a copy of the
Inmate Rights at Discipline Hearing on October 13, 2015. Id. at 65, 67–68. Included among
those rights was the opportunity to have a staff representative assist with the Discipline Hearing,
the right to call witnesses and to present documentary evidence on Petitioner’s behalf, and the
right to present a statement to the DHO or remain silent. Id. Petitioner signed the Notice of
Discipline Hearing, and, while he refused to sign the Inmate Rights at Discipline Hearing Form,
staff signed indicating he received the form. Id. Petitioner noted that he did not wish to call any
witnesses, but that he wished to have a staff representative to assist him during the disciplinary
process. Petitioner requested the assistance of “Officer Edwards.” Id.
A hearing on IR No. 2769171 was held before the DHO on October 28, 2015—over
twenty days after Petitioner first received the IR from staff, and fifteen days after the IR was
reissued to him. Id. at 70–76. The DHO reviewed Petitioner’s due process rights with him at the
hearing. Id. at 72. Petitioner requested a staff representative, did not request any witnesses, and
provided documentary evidence. The DHO ensured that Petitioner understood his due process
rights and was prepared to proceed with his disciplinary hearing.
Officer Edwards appeared as Petitioner’s staff representative, and stated that Petitioner:
wanted me to address the dates and policy. His copy of the report
says it was written and delivered on the 7th. He wanted me to get
information from Burge that he tried to get the letter from him.
Burge sent an email stating he asked him for the letter several
times. He wanted me to talk to Associate Warden Loftness about
the dates of the report. Mr. Loftness stated the dates were solid.
Id. at 70, 75.
The DHO considered the staff representative’s statement in making her
determination. Id. at 75.
Because Petitioner was questioning staff regarding the dates on his IR, including
questioning Associate Warden Loftness via a request through his staff representative, the DHO
received inquiries from staff prior to the DHO hearing regarding the appropriateness of the dates
of delivery recorded on Petitioner’s IR. Id. at 11. The DHO did not consider these inquiries in
making her decision and merely informed staff that, generally, correcting the delivery date of an
incident report would not impact an inmate’s due process rights as long as the inmate at issue
was provided sufficient time before the DHO hearing to prepare his defense. Id. The DHO also
explained that she would review and address the date issue based on the evidence presented at
the DHO hearing. Id.
In response to Petitioner’s requests, including a request through his staff representative,
staff member Burge sent the DHO an email received on October 16, 2015, which the DHO also
considered. Staff member Burge reported that:
[o]n 3 separate occasions this evening, [Petitioner] has asked me to
let you know that “he tried on two different occasions to get his
mail back” from the inmate[’]s possession that was supposed to be
leaving the following morning. He kept insisting that he had a
change of heart and that he was trying to prevent it from being sent
out. The feeling I got is that he was nervous and was trying to
prevent anyone from searching it. When I found the mail and
noticed that it was outgoing and sealed I told him I would need to
inspect it before returning it. The night ran short and I
remembered his mail on the shelf at the same time I was being
relieved. I gave the mail to C/O Mann and asked him to please
check it out for me.
Id. at 74, 78.
Petitioner appeared before the DHO at the hearing and presented a verbal statement.
Petitioner denied the charge and verbally stated:
[t]he child support officer sent me a letter asking me for my 1099
form. I have been locked up for some time. I was sending the
information to the IRS. Other inmates have gotten their child
support back payments cleared by doing this before. I stopped the
mail from going out once they packed out [the releasing inmate]. I
told the officer it was in his property. My original intent was to
have him take it out with him on the 5th but I changed my mind
Id. at 70.
Petitioner also provided documentary evidence, including a portion of Program
Statement 5270.09, noting the time frames incident reports should be delivered to the inmate—
within 24 hours from the time staff become aware of the violation or, when referred for
prosecution, by the end of the next business day once released for administrative processing. Id.
at 71. Petitioner also provided a section of a statute imposing a fine for personnel who falsify,
conceal or cover up a material fact, make a materially false, fictitious, or fraudulent statement or
representation, or knowingly make or use any false writing or document. Id. In addition,
Petitioner provided a letter from Child Support Services stating Petitioner will need to provide a
print out of his trust fund account records and noting:
I am not sure what you mean about how much of your credit has
been used up. You should have access to your balances that you
have in your account at the prison. This is the record that is being
asked that you send for your modification review. This department
does not have access to 1099 OID’s and would not be able to send
a copy of your 1099 OID unless you were to send it to the
Id. at 71, 80. Finally, Petitioner provided a copy of the IR showing a written delivery date of
October 7, 2015. Id. at 71, 83. The DHO considered all of Petitioner’s documentary evidence.
Id. at 72, 74.
The DHO also considered the IR and investigation, and the October 5, 2016 staff email to
I sent two letters from [Petitioner] . . . to SIS with a note on it
explaining the situation. The two letters were found already sealed
in [the releasing inmate’s cell] when the two inmates in that cell
got locked up in the SHU last night. One of the inmates that was
locked up, [the releasing inmate], is scheduled to be released this
morning. So it appears that [Petitioner] was trying to get [the
releasing inmate] to take the letters out with him and mail them
from outside the institution. Also, I couldn’t tell whether the
contents of the letters were legit IRS info or some sort of scam.
But [Petitioner] was asking to get the letters back as soon as I got
to work last night, and looked pretty concerned when I told him
that they were sent to you this morning after I opened the unit . . . .
Id. at 45, 73. The DHO considered the written account of the SIS Technician who opened the
envelopes and reviewed their contents, as well as copies of the envelopes, which had a return
address label with Petitioner’s name, address and register number, and were addressed to
Felonda at an Illinois address. Id. at 72. The DHO considered the contents of the letters,
including the letters to the IRS and Child Support Services; the notice of past due child support
in the amount of $35,464.65, with a stamp, typed at an angle, indicting it is a money order; the
IRS 1040-V payment voucher for $35,464.65; the 1040 IRS Income Tax Return for $35,464.65,
which refers to a 1099 OID; and the letter to Felonda instructing her on how to complete the
1099 OID and 1096 forms, as well as the sample copies of those forms. Id. at 74.
The DHO also considered a hand-written letter from the releasing inmate stating that
Petitioner “asked me to drop 2 letters in the mail for him. He only said that they were in regards
of something to do with child support. I didn’t ask anymore questions and that was it.” Id. at 47,
74. The DHO considered IRS Bulletin Notice 2010-33 and a Fact Sheet, indicating positions
considered frivolous by the IRS, including use of a form 1099 OID to obtain a monetary
payment or refund. Id. at 73, 85–89.
The DHO found that, based on the evidence, Petitioner committed the prohibited act of
abuse of the mail for an illegal purpose (attempted) in violation of Code 196(A). The DHO
determined that Petitioner attempted to have another inmate remove from the institution the two
letters written and sealed by Petitioner. Id. at 13–14, 74. The DHO explained to Petitioner that
because the government does not owe him $35,464.65 in order to pay his child support, these
actions constitute fraud. The DHO removed Code 219(A) stealing (attempted) and Code 314,
unauthorized reproduction of any document, because she determined that a separate charge for
these codes would constitute a stacking of the charges, since the same actions for each charge are
included in the charge against Petitioner for violating Code 196(A). Id. at 15.
In making her determination, the DHO placed greater weight on the IR written by the SIS
officer as it was backed by copies of the documents, and she drew a negative inference against
Petitioner based on his silence before the investigating Lieutenant.
Id. at 75. While she
considered Petitioner’s defense that the child support office sent him a letter requesting the 1099
form, that other inmates have cleared their back payments this way, and that he stopped the letter
from going out, the DHO was not convinced of Petitioner’s innocence. Id. Based on the letter
from Child Support Services, the DHO determined that Child Support Services only informed
Petitioner to submit a form 1099 after Petitioner submitted an inquiry to them seeking the form.
Further, the IRS has issued bulletins and fraud alerts about the Form 1099-OID, Refund Scheme.
The DHO was also not convinced that other inmates had cleared their back child support
payments by this method as it is considered fraud. Id.
The DHO found that although Petitioner claimed that he stopped the letters from going
out, the letters were sealed, addressed with postage, and were only intercepted by staff after the
releasing inmate was involved in an incident the night before he was scheduled to release to a
residential reentry center, resulting in his property being packed by staff. Id. Further, both
Petitioner and the releasing inmate stated it was Petitioner’s intent for the releasing inmate to
take the letters out with him upon his release. Id.
The DHO considered the change in the date the IR was delivered to Petitioner, and
determined that the date was changed to correct an error and the IR was actually written and
delivered on October 6, 2015. Id. at 72. The DHO also acknowledged that BOP policy indicates
that if an incident report is referred for prosecution, the report is delivered by the end of the next
business day after release for administrative processing. The DHO determined that by receiving
the IR prior to the report being released for administrative processing, Petitioner was provided
additional time to prepare his defense and the delivery date did not hinder his ability to prepare
his defense. Id. The DHO also acknowledged a typographical error in the IR stating the amount
of the requested refund from the IRS was $34,464.565, instead of $35,464.65, but determined
that this typographical error also did not hinder Petitioner’s ability to prepare a defense. Id.
The DHO sanctioned Petitioner with the disallowance of forty-one days of Good Conduct
Time, one hundred twenty days loss of commissary and email privileges, and a $100 monetary
fine. Id. at 75. The disciplinary sanctions imposed were consistent with those allowed by policy,
and were imposed in an effort to deter this type of misconduct in the future. Id. at 16. Petitioner
was advised of the DHO’s findings and his ability to appeal through the administrative remedy
process within twenty days of the receipt of the report. Id. at 76. The DHO subsequently
generated a written report which she signed on November 6, 2015, and it was delivered to
Petitioner on November 10, 2015. Id. The DHO is a certified DHO, an impartial hearing officer
that was not personally involved with the incident, the UDC hearing, or any other part of the
initial disciplinary process. Id. at 17.
Pursuant to the regulations in effect during October 2015, an inmate who is found to have
committed a prohibited act involving drugs, alcohol, violence, escape, attempted escape or any
100-level series incident “will be removed from RDAP immediately.” (Doc. 9–3, at 4); See 81
Fed. Reg. 24484–02, at p. 24485 (April 26, 2016) (removing section (g) from 28 C.F.R.
§ 550.53). Petitioner was expelled from RDAP on October 29, 2015, for violating Disciplinary
Code 196(A)—a 100 level series incident. (Doc. 9–3, at 4, 18–19.) In 2016, Petitioner was
again deemed eligible for RDAP, and he began participating in the unit-based component of the
program on February 16, 2016. Id. at 4, 16. However, on August 11, 2016, Petitioner was
placed in the SHU and his RDAP status was changed to Drug Abuse Program Incomplete. Id. at
4–5, 16, 25–26. According to his RDAP Status Form, once he is able to resume programming
his § 3621(e) date is likely to change based on his projected completion date. Id. at 5.
Generally, a federal prisoner must exhaust available administrative remedies before
commencing a habeas corpus petition under 28 U.S.C. § 2241. Williams v. O’Brien, 792 F.2d
986, 987 (10th Cir. 1986) (per curiam). The BOP’s four-part administrative remedy program is
codified at 28 C.F.R. § 542. Under the administrative remedy program for inmates, an inmate is
required to first attempt informal resolution of the complaint, and if unsuccessful, he must raise
his complaint, with the informal resolution attached, to the Warden of the institution where he is
If dissatisfied with that response, he may appeal his complaint to the Regional
Director. If the inmate is dissatisfied with the Regional Director’s response, the inmate may
appeal to the National Inmate Appeals Administrator in the Office of the General Counsel in
Washington, D.C. (“Central Office”). Generally, an inmate has not exhausted his remedies until
he has sought review and received a final substantive response at all three levels. See Woodford
v. Ngo, 548 U.S. 81, 90 (2006) (finding that exhaustion requires “using all steps that the agency
holds out, and doing so properly (so that the agency addresses the issues on the merits)”)
(citation omitted)). For certain disciplinary actions, involving a decision by the DHO, an inmate
may appeal the decision directly to the Regional Director, and by-pass the institution-level
procedures. See 28 C.F.R. § 542.14(d)(2). If an inmate does not receive a response within the
allotted time for reply, including extensions, the inmate may consider the absence of a response
to be a denial at that level. See 28 C.F.R. § 542.18.
Respondent acknowledges that Petitioner has exhausted his administrative remedies with
respect to his October 2015 discipline. (Doc. 9 at 7.) However, Petitioner did not exhaust his
administrative remedies regarding his claims related to his October 2015 expulsion from the
RDAP and loss of associated early release eligibility under 18 U.S.C. § 3621(e).
Administrative Remedy Nos. 843591-R1 and 843591-A1, challenged his October 2015
discipline and asserted procedural errors associated with this discipline. Petitioner did not raise
any issues regarding his expulsion from the RDAP or associated early release eligibility under 18
U.S.C. § 3621(e). (Doc. 9–2, at 6–7, 26–36.) To properly exhaust administrative remedies, the
petitioner must have presented the same claims in the administrative grievance that appear in the
court petition. Williams v. Wilkinson, 659 F. App’x 512, 514 (10th Cir. 2016) (citing Woodford,
548 U.S. at 94).
Even if Petitioner had exhausted his administrative remedies, his claim regarding his
expulsion from the RDAP would fail. Petitioner’s claim regarding his expulsion and loss of
entitlement to early release under the RDAP are dependent on his success in arguing for
expungement of the IR at issue in this case. Because the Court finds that the DHO’s decision
was supported by “some evidence” and the Petitioner received due process in his disciplinary
proceedings, his argument for expungement fails.
2. Standard of Review
To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S. C. § 2241(c)(3). A
federal prisoner has a constitutionally protected liberty interest in his earned good-conduct time.
See Brown v. Smith, 828 F.2d 1493, 1494 (10th Cir. 1987). Therefore, Petitioner was entitled to
due process at his disciplinary hearing. Howard v. Bureau of Prisons, 487 F.3d 808, 811 (10th
Cir. 2007). However, because prison disciplinary proceedings “take place in a closed, tightly
controlled environment peopled by those who have chosen to violate the criminal law and who
have been lawfully incarcerated for doing so,” the “full panoply of rights due a defendant in
[criminal] proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 561 (1974); see
also Abdulhaseeb v. Ward, 173 F. App’x 658, 661 (10th Cir. 2006).
In Wolff, the Supreme Court held that in order to satisfy due process in a prison
disciplinary proceeding, the inmate must receive: (1) “advance written notice of the claimed
violation” no less than 24 hours prior to the hearing; (2) an opportunity “to call witnesses and
present documentary evidence in his defense when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals;” and (3) a “written statement by the
factfinders as to the evidence relied on and reasons for the disciplinary action.” Wolff, 418 U.S.
at 563–66 (citations omitted); see also Abdulhaseeb, 173 F. App’x at 661 (citing Superintendent,
Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985)); Smith v. Maschner, 899 F.2d 940,
946 (10th Cir. 1990). Additionally, there must be some evidence to support the decision and the
decisionmaker must be impartial. Gwinn v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004)
(citing Wolff, 418 U.S. at 592) (Marshall, J., concurring)).
The Court has no difficulty finding that Petitioner was afforded all the due process
protections mandated by Wolff. The administrative record and the undisputed facts plainly
demonstrate that Petitioner was afforded all three procedural protections mandated by Wolff. He
was given advance written notice of the charge by delivery of the IR more than 24 hours prior to
the DHO hearing.
The IR, if delivered on October 7, was twenty-one days before his
October 28, 2015 DHO hearing. The IR was delivered again on October 13, fifteen days before
the DHO hearing. Petitioner was advised of his procedural rights before the DHO hearing and
given the opportunity to present witnesses and documentary evidence in his defense.
declined to present witnesses but did present documentary evidence. Finally, he was provided a
copy of the DHO’s written statement, which sets forth the evidence relied upon and the reasons
for the disciplinary action and sanctions.
Petitioner claims that the IR was not delivered to him within 24 hours of the time staff
became aware of his alleged misconduct, as required by BOP policy. Petitioner alleges that staff
became aware of his alleged misconduct at 7:36 a.m. on October 6, 2015, and delivered the IR at
around 9:38 a.m. on October 7, 2015. Petitioner further alleges that staff covered up the 7 with a
6 in an attempt to cover up their failure to timely deliver the IR. Petitioner also argues that staff
violated BOP policy because he was questioned before the FBI or other investigative agency
released the IR for administrative processing. Petitioner argues that the penalty for the staff’s
violation of the 24-hour policy and alleged cover-up should result in the dismissal of his IR.
(Doc. 13, at 4.)
Petitioner alleges that the staff’s failure to follow their own policy statement denied him
due process, citing Policy Statement 5270.09. However, “prison regulations are meant to guide
correctional officials, not to confer rights on inmates.” Farrakhan-Muhammad v. Oliver, ___ F.
App’x ___, 2017 WL 460982, at *1 (10th Cir. Feb. 3, 2017) (unpublished) (citing Sandin v.
Conner, 515 U.S. 472, 481–82 (1995)); Cooper v. Jones, 372 F. App’x 870, 872 (10th Cir. 2010)
(unpublished) (“The process due here is measured by the Due Process Clause of the United
States Constitution, not the internal policies of the prison.”).
BOP regulations provide that the inmate “will ordinarily receive the incident report
within 24 hours of staff becoming aware of [the inmate’s] involvement in the incident,” and that
“the staff investigation of the incident report may be suspended before requesting [the inmate’s]
statement if it is being investigated for possible criminal prosecution.” See 28 C.F.R. § 541.5(a)
and (b)(2) (emphasis added). The Program Statement relied on by Petitioner provides that “[t]he
incident report should be delivered to the inmate within 24 hours of the time staff become aware
of the inmate’s alleged misconduct. If an incident is referred for prosecution, the report is
delivered by the end of the next business day after release for administrative processing.”
Program Statement 5270.09, Inmate Discipline Program, p. 19 (August 1, 2011). The Program
Statement also provides that:
When it appears likely that the incident may involve criminal
prosecution, the investigating officer suspends the investigation.
Staff may not question the inmate until the FBI or other
investigative agency releases the incident report for administrative
processing. The incident report should then be delivered to the
inmate by the end of the next business day. The time frame for
processing the Incident report is suspended until it is released for
Id. at p. 18.
The minor deviations from BOP regulations or policy statements did not violate the
Constitution. Addressing a similar issue, this Court in Kesling v. Maye, stated that:
The pertinent regulation states that an inmate “will ordinarily
receive the incident report within 24 hours of staff becoming aware
of [the inmate’s] involvement.” 28 C.F.R. § 541.5(a) (emphasis
added). The regulation, then, does not mandate a strict 24-hour
timeframe in which BOP officials are required to provide an
inmate with a copy of an incident report. In this case, the record
indicates that Mr. Kesling received the incident report at 7:46pm
on June 22, 2014 and that the BOP became aware of Mr. Kesling’s
involvement sometime between 4pm and 6pm on June 21, 2014.
To the extent a minor violation occurred, it does not rise to the
level of a constitutional violation under Wolff.
Kesling v. Maye, Case No. 16-3034-JWL, 2016 WL 2736080, at *2 (D. Kan. May 10, 2016)
(citing Brown, 196 F. App’x at 683)); see also Brennan v. United States, 646 F. App’x 662, 667
(10th Cir. 2016) (unpublished) (rejecting the petitioner’s argument that the BOP’s failure to
provide an inmate with an incident report within 24 hours of the incident violated due process),
cert. denied sub nom. Brannan v. United States, 137 S. Ct. 695 (2017); Brown v. Rios, 196 F.
App’x 681, 683 (10th Cir. 2006) (unpublished) (finding that allegations of failure to serve
incident report within 24 hours, failure to provide UCD hearing within three working days, and
denial of access to legal materials and prison library, failed to raise a due process violation under
Wolff); see also Wallace v. Fed. Det. Ctr., 528 F. App’x 160, 162–63 (3d Cir. 2013) (“[E]ven if
[BOP] regulations were violated, Wallace cannot show that his right to due process was
infringed, where Wolff does not require issuance of the charge within 24 hours of the incident or
a hearing within three days of the alleged conduct, and where any delay did not prejudice him.”).
Petitioner also alleges that his case manager, Mr. Toot, talked to the DHO and told
Petitioner that he was “not about to get off because staff made a minor mistake.” Petitioner
claims that his case manager was not Inmate Discipline Committee (“IDC”)-certified as is
required for an employee reporting the incident or otherwise being involved in the incident. The
Program Statement provides that:
The Investigating Officer is an employee at the supervisory level
who conducts an investigation of alleged inmate misconduct. The
Investigating Officer must be IDC-certified, and may not be the
employee reporting the incident or otherwise be involved in the
incident. The officer is ordinarily a Lieutenant, but the Warden
may appoint another staff member.
Program Statement 5270.09, Inmate Discipline Program, p. 18 (August 1, 2011). Petitioner’s IR
does not reflect that Case Manager Toot was involved with the UDC proceedings, and it lists J.
Herbig, SIS Technician, as the reporting employee. (Doc. 16–1, at 43.) There is no evidence
that Petitioner’s case manager was the “Investigating Officer,” and the DHO refers to the
investigator as a “Lieutenant.” Id. at 75. Petitioner’s argument regarding violation of the
Program Statement is insufficient to show a due process violation. See Miller v. Terris, 2013
WL 6801157, at *3 (E.D. Mich. Dec. 23, 2013) (finding that there was no allegation that the
Lieutenant conducting the investigation was not IDC certified and that noncompliance with a
BOP Program Statement is not a violation of federal law, in that such Program Statements are
not mandated by statute or the federal constitution).
Although Petitioner takes issue with his case manager talking to the DHO about the 24hour deadline for delivering the Incident Report, he does not allege that the DHO was not
impartial. “An impartial decisionmaker is a fundamental requirement of due process that is fully
applicable in the prison context.” Gwinn v. Awmiller, 354 F.3d 1211, 1220 (10th Cir. 2004)
(internal quotation marks omitted). But, “because honesty and integrity are presumed on the part
of a tribunal, there must be some substantial countervailing reason to conclude that a
decisionmaker is actually biased with respect to factual issues being adjudicated.” FarrakhanMuhammad, 2017 WL 460982, at *1 (quoting Tonkovich v. Kan. Bd. Of Regents, 159 F.3d 504,
518 (10th Cir. 1998) (internal quotation marks omitted)).
The DHO stated that she did not consider the inquiries in making her decision and merely
informed staff that, generally, correcting the delivery date of an incident report would not impact
an inmate’s due process rights as long as the inmate at issue was provided sufficient time before
the DHO hearing to prepare his defense. The DHO also explained that she would review and
address issues related to the dates based on the evidence presented at the DHO hearing. The
DHO considered the change in the date the IR was delivered to Petitioner, and determined that
the date was changed to correct an error. In order to insure impartiality, a DHO may not be a
victim, witness, investigator, or otherwise significantly involved in the incident. 28 C.F.R.
§ 541.8(b). In this case, the DHO was a certified DHO who was not personally involved with
the incident, the UDC hearing, or any other part of the initial disciplinary process. Petitioner’s
allegation that his case manager was not IDC-certified is insufficient to demonstrate a denial of
4. Some Evidence
Petitioner asserts that he is not arguing as to whether or not there was evidence of guilt
for attempting to circumvent the mail. (Doc. 13, at 3.) The Court finds that there was “some
evidence” to support the DHO’s decision. Where the due process requirements of Wolff are met,
as is the case here, the decision of the DHO will be upheld if there is “some evidence” to support
the decision. Hill, 472 U.S. at 455. “The fundamental fairness guaranteed by the Due Process
Clause does not require courts to set aside decisions of prison administrators that have some
basis in fact.” Terry v. Jones, 259 F. App’x 85, 86 (10th Cir. 2007), cert. denied, 554 U.S. 924
(2008) (quoting Hill, 472 U.S. at 456). A decision to revoke good time credits would only
violate due process if the record is “devoid of evidence, providing no support for a disciplinary
board’s decision.” Id. (citing Hill, 472 U.S. at 457). “The Federal Constitution does not require
evidence that logically precludes any conclusion but the one reached by the disciplinary board.”
Hill, 472 U.S. at 457.
The Court is bound by the “some evidence” standard and finds that the evidence relied
upon by the DHO satisfies that standard. “Ascertaining whether [the some evidence] standard is
satisfied does not require examination of the entire record, independent assessment 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.” Hill, 472 U.S. at 455–56; see Mitchell, 80 F.3d at 1445. “The decision can be upheld
even if the evidence supporting the decision is ‘meager.’” Mitchel, 80 F.3d at 1445 (citing Hill,
472 U.S. at 457).
Petitioner’s allegations fail to raise a due process violation under Wolff. The Court finds
that Petitioner received adequate due process in his prison disciplinary proceedings, and the
decision of the DHO is supported by some evidence.
IT IS THEREFORE ORDERED BY THE COURT that this petition for writ of habeas
corpus is denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 24th day of April, 2017.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?