Pair v. English

Filing 7

MEMORANDUM AND ORDER: Petition for habeas corpus is denied. Signed by District Judge John W. Lungstrum on 8/7/17. Mailed to pro se party David Pair by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAVID PAIR,
Petitioner,
v.

CASE NO. 17-3078-JWL

NICOLE ENGLISH,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner at the United States Penitentiary,
Leavenworth,

Kansas

(USPL),

challenges

an

administrative

disciplinary proceeding that resulted in the loss of Good Conduct Time
(GCT).
Background
On November 12, 2015, a plumbing foreman at the Federal
Correctional Institution, Schuykill, Pennsylvania, discovered
approximately four gallons of intoxicants, sugar, and the heating
element from an iron in a cell assigned to petitioner and another
prisoner. A test of the intoxicants with the Alco-Sensor III yielded
a “Hi” reading, indicating .500 or greater.1
The Alco-Sensor equipment had been calibrated ten days earlier,
on November 2, 2015. Under Bureau of Prisons policy, the equipment
must be calibrated every thirty days.2
On the same day, the staff member wrote an Incident Report
charging petitioner with violating Code 113, Possession of
1
2

Doc. 6, Attach., 1, Bittenbender decl., par. 10, Ex. D, Incident Report No. 2782817.
Id., par. 12, Ex. G, Alco-Sensor calibration log.

Intoxicants, and Code 305, Possession of Anything Not Authorized.3
Petitioner received the Incident Report on the same day. At the
same time, he was advised of his rights and stated he understood them.
He requested a staff representative but did not request witnesses.
The Incident Report was sent to the Unit Discipline Committee (UDC)
for review.
On November 17, 2015, petitioner appeared before the UDC but
offered no statement. The UDC referred the matter to the Discipline
Hearing Officer (DHO).4
On the same day, petitioner received a Notice of Discipline
Hearing before the DHO advising him of the specific violations
alleged. Petitioner also received a copy of the Inmate Rights at
Discipline Hearing, which included the right to have a staff
representative assist him at the hearing, the right to present
documentary evidence, and the right to present a statement or to remain
silent. Petitioner signed both forms.5
On November 23, 2015, the DHO conducted a hearing. Petitioner
again requested a staff representative but did not request witnesses
or offer documentary evidence. Although petitioner requested Kevin
McGinley as his representative, he was not available to assist on the
day of the hearing. The DHO advised petitioner that the hearing could
be postponed or he could proceed with a different staff
representative. Petitioner chose to proceed, and Lieutenant
Schreffler was appointed to assist him.6
The evidence against petitioner consisted of the incident report
describing the discovery and photographs taken by the investigating
3
4
5
6

Id.,
Id.,
Id.,
Id.,

Ex. D.
Bittenbender decl., par. 15 and Ex. D.
par. 17 and Exs. I & J.
par. 20-21 and Ex. K.

officer showing the bags found in the cell, the hole behind the cell
toilet where the bags were concealed, the number of the cell where
the bags were discovered, and the Alco-Sensor III showing the reading.
Petitioner gave a statement at the hearing professing his innocence
and stating he had been assigned to the cell for over a year.7
The DHO found petitioner committed the violation of Possession
of Intoxicants in violation of Code 113 but expunged the related charge
of Possession of Anything Not Authorized. The DHO found the weight
of the evidence was that the amount of the intoxicants, approximately
four gallons, made it unlikely petitioner was unaware of the presence
of intoxicants in the cell and that both of the cell’s occupants had
access to the area where the bags were hidden.8
As sanctions, the DHO imposed 60 days of disciplinary
segregation, disallowed 40 days of Good Conduct Time, forfeiture of
400 days of Non-Vested Good Conduct Time, 8 months loss of telephone
privileges, and 8 months loss of visiting privileges.
Petitioner was advised of the DHO’s decision and the appeal
procedure. On December 2, 2015, the DHO issued a written report with
a statement of the evidence supporting the decision and the reason
for the sanctions. Petitioner received the report on the same day.9
Petitioner seeks relief from the disciplinary finding on these
grounds: (1) he was sanctioned more harshly than other,
similarly-situated prisoners; (2) the appointment of Lieutenant
Schreffler violated due process because petitioner requested another
staff member as a representative; and (3) he was entitled to have the
intoxicants tested.
7
8
9

Id.
Id., Bittenbender decl., par. 29 and Ex. K.
Id., par. 33.

Discussion
To obtain habeas corpus relief, a petitioner must demonstrate
that he is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). An application
for habeas corpus filed under Section 2241 challenges the execution
of a sentence rather than its validity. Brace v. United States, 634
F.3d 1167, 1169 (10th Cir. 2011).
Petitioner has a constitutionally protected liberty interest in
his earned good conduct time. See Brown v. Smith, 828 F.2d 1493, 1494
(10th Cir. 1987). He therefore was entitled to due process in the
disciplinary proceedings which resulted in the loss of good conduct
time and other sanctions.
A prison disciplinary proceeding is not a criminal prosecution
and does not provide a prisoner with the “full panoply of rights due
a defendant in (criminal) proceedings”. Wolff v. McDonnell, 418 U.S.
539, 561 (1974). In Wolff, the United States Supreme Court set the
benchmark for due process in prison disciplinary proceedings, holding
that a prisoner must receive (1) advance written notice of the
violation charged no less than 24 hours prior to the hearing, an
opportunity to call witnesses and present documentary evidence where
doing so would not be “unduly hazardous to institutional safety or
correctional goals”, and a written statement from the factfinder
stating the reasons for the decision and the supporting evidence.
Wolff, 418 U.S. at 563-66. Due process in this context requires only
that there be “some evidence” to support the disciplinary findings.
Superintendent v. Hill, 472 U.S. 445, 455 (1985).
Prison regulations are “primarily designed to guide correctional
officials in the administration of a prison. [They were] not designed

to confer rights on inmates.” Sandin v. Conner, 515 U.S. 472, 481-82
(1995). Therefore, a failure to strictly follow administrative
regulations “does not equate to a constitutional violation.” Hovater
v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993)(citing Davis v.
Scherer, 486 U.S. 183, 194 (1984)).
Severity of sanctions
Under BOP Program Statement 5270.09,

10

effective August 1, 2011,

a violation of Code 113, Possession of any narcotics, marijuana,
drugs, alcohol, intoxicants, or related paraphernalia, not prescribed
for the individual by the medical staff, is classified as a Greatest
Severity Level Prohibited Act. Sanctions authorized for such a
violation include parole date rescission or retardation, forfeiture
of withholding of earned or non-vested good conduct time up to 100%,
and/or termination or disallowance of extra good time, disciplinary
segregation of up to 12 months, and other measures.
The sanctions imposed on petitioner are within the range of
penalties allowed for a Greatest Severity Level Prohibited Act under
PS 5270.09.
Petitioner appears to claim that the sanctions imposed on him
violated equal protection and were based on his race and the fact that
he is a District of Columbia prisoner.
Equal protection principles require that all persons who are
similarly situated be treated alike in legislative classifications
or other official action. See City of Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 439 (1985). Equal protection applies to
administrative acts. Engquist v. Oregon Dept. of Agri., 553 U.S. 591,
597 (2008). To prevail, petitioner must show that the sanctions
10

Doc. #6, Attach. 1, Ex. B.

imposed in the disciplinary proceeding treated him differently than
other prisoners who were similarly situated. See Penrod v. Zavaras,
94 F.3d 1399, 1406 (10th Cir. 1996).
In support of his claim, petitioner cites two cases, Livingston
v. Oddo, 2016 WL 4765908 (M.D. Pa. Sep. 13, 2016), and Weakley v.
Shartle, 2015 WL 2082852 (D. Ariz. May 4, 2015), report and
recommendation adopted, 2015 WL 4600348 (D. Ariz. Jul. 30, 2015).
In Livingston, a federal prisoner in Yazoo, Mississippi, was
found guilty of possessing 4 gallons of intoxicants under Code 222.
Livingston admitted his guilt and was punished with a twenty-seven
day disallowance of GCT, one hundred eighty days restriction on
commissary purchases, and thirty days in disciplinary segregation.
In Weakley, a federal prisoner in Tucson, Arizona, was found
guilty under Code 222 of possessing two large bags of intoxicants found
in an area adjacent to his cell. Weakley was sanctioned with thirty
days in disciplinary segregation, one year loss of telephone
privileges, and one year loss of commissary purchases. Because Weakley
was serving a life sentence, he could not earn GCT.
These cases, while similar, do not persuade the Court that
petitioner was denied equal protection by the disciplinary action.
First, at the time of the findings in Livingston and Weakley, the
possession of intoxicants was a prohibited act under Code 222 and was
classified as a High Severity Level Prohibited Act. In August 2011,
the violation was changed to Code 113, a Greatest Severity Level
Prohibited Act, a category punishable with higher sanctions.
Petitioner was convicted in 2015, after the violation was classified
at the Greatest Severity Level with higher available sanctions.

Next, as respondent points out, petitioner’s bare claim of racial
discrimination is not supported because the petitioner in Livingston,
like petitioner, is African-American. And there is no evidence that
petitioner’s status as a District of Columbia prisoner was known to
the DHO or entered into the decision.
Third, in imposing the harsher penalties on petitioner, the DHO
cited his prior misconduct of possession of intoxicants as well as
institutional safety concerns related to the consumption of
intoxicants.
The Court finds no merit to petitioner’s claim of an equal
protection violation.
Staff representative
A prisoner has no constitutional right to a staff representative
in administrative disciplinary proceedings. See Jordan v. Wiley, 411
Fed.Appx. 201, 209 (10th Cir. 2011). Rather, due process requires that
a prisoner receive assistance from a staff member only if the prisoner
is illiterate or the issues presented are so complex that the prisoner
could not prepare and present the evidence. See Wolff, 418 U.S. at
570. See also Marshall v. Champion, 1996 WL 187535, at *2 (10th Cir.
Apr. 18, 1996)(finding no constitutional violation arising from the
failure to appoint a staff representative).
Petitioner does not contend that he is illiterate or that the
issues presented were so complex that the assistance of a staff
representative was required. The record shows he was assisted by a
staff member, and there is no requirement that he be provided the
representative of his choice. See Hammock v. Nash, 2005 WL 2562295,
*4 (M.D. Pa. 2005)(unpublished decision)(Wolff “does not mandate that
a prisoner has the right to be afforded a staff representative of his

choosing.”).
Petitioner was not denied due process by the appointment of
Lieutenant Schreffler as his staff representative.
Testing of intoxicants
Petitioner also alleges error in the failure to allow him to
conduct additional testing of the contents of the bags to establish
alcohol was present.
It is well-established that due process requires that the
findings of a DHO be supported by “some evidence” in the record.
Superintendent, Massachusetts Correctional Institution, Walpole v.
Hill, 472 U.S. 445, 454-56 (1985). Here, the record contains evidence
of the discovery of the bags and of the positive reading detected by
the Alco-Sensor III on contraband found in petitioner’s cell. That
evidence is sufficient to satisfy the governing standard, and the
failure to require additional testing did not deny petitioner due
processs.
(N.D.W.Va.

See, e.g.,
Jul.

22,

Staples v. O’Brien, 2016 WL 8732324, *8
2016)(evidentiary

standard

met

where

DHO

considered memorandum reflecting liquid was tested with Alco-Sensor
III and registered positive reading, although no photograph of reading
was taken to document); Collins v. Martinez, 2010 WL 4272923, *9
(M.D.Pa. Oct. 25, 2010)(same where test of prisoner’s coat, soaked
with intoxicants after bag ruptured, yielded positive reading on
Alco-Sensor although breathalyzer reading did not detect alcohol);
and

Henderson v. Morris, 2007 WL 4289978, *3 (E.D.Tex. Dec. 3,

2007)(same where contents of bottle tested positive by Alco-Sensor
IV, and stating “constructive possession provides sufficient evidence
of guilt when relatively few inmates have access to the area”).

Likewise,

because

it

does

not

appear

that

petitioner

specifically presented this claim at the hearing, where he stated he
was

innocent

of

the

charge,

or

that

he

presented

it

in

his

administrative appeals, the claim is not properly exhausted.11
Conclusion
For the reasons set forth, the Court sustains the disciplinary
finding and the sanctions imposed on petitioner by the DHO.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is denied.
IT IS SO ORDERED.
DATED:

This 7th day of August, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge

11

Doc. #6, Attach. 2, pp. 30-31 and 34.