Booker v. Quintana
Filing
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MEMORANDUM OPINION & ORDER: 1. LaShawn Bookers 28 U.S.C. § 2241 petition for a writ of habeas corpus 1 is DENIED; 2. The Court will enter an appropriate judgment; and 3. This habeas proceeding is DISMISSED and STRICKEN from the Courts docket. Signed by Judge Karen K. Caldwell on 10/06/2014.(lc)cc: COR, Petitioner via US mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
LaSHAWN BOOKER,
CIVIL ACTION NO. 5:14-179-KKC
Petitioner,
V.
MEMORANDUM OPINION
AND ORDER
FRANCISCO QUINTANA,
Respondent.
*** *** ***
LaShawn Booker is an inmate confined by the Bureau of Prisons (“BOP”) at the
Satellite Campus of the Federal Medical Center (“FMC”)-Lexington located in Lexington,
Kentucky. Proceeding without an attorney, Booker has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging a prison disciplinary conviction which
resulted in the loss of 27 days of good-time credits (“GTC”).
Booker seeks an order
expunging that disciplinary conviction and reinstating her forfeited GTC.
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court
must deny the relief sought “if it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule
1(b)). Because Booker is not represented by an attorney, the Court evaluates her petition
under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones,
321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts
as true Booker’s factual allegations and liberally construes her legal claims in her favor.
As explained below, Booker’s habeas petition will be denied because she has not alleged
facts which would warrant relief from either her disciplinary conviction or the sanctions
imposed.
BACKGROUND
On March 2, 2013, Booker was assigned to the Atwood Food Service detail as a food
server. On that date, “A.” Rivello, an FMC-Lexington official, signed an Incident Report in
which he charged that Booker had stolen six oranges from the dining room at 8:35 a.m. that
day. [R. 1-2, p. 4] The charged offense was listed as a violation of BOP Prohibited Acts
Code (“PAC”) 219. [Id., § 10] In the Incident Report, Rivello stated that he observed
Booker carry the oranges on a tray to the table nearest the exit door of the dining room,
place the oranges under her grey coat and in her coat pockets, leave the dining room, and
run down the hall. [Id., § 11] Rivello stated that he lost sight of Booker, but that he
reported Booker’s actions to Officer Gilbert, who located Booker with no further incident.
[Id.]
The Unit Disciplinary Committee (“UDC”) referred the charges to a Disciplinary
Hearing Officer (“DHO”) for resolution. [Id., § 18(B)] On April 12, 2013, a disciplinary
hearing transpired at FMC-Lexington, and at Booker’s request, a staff representative
appeared on her behalf. DHO Timothy Smart presided over the hearing, and on April 30,
2013, Smart prepared a Report summarizing all aspects of the proceeding. [Id., pp. 8-11]
Booker gave a statement at the hearing, which DHO Smart summarized as follows:
I was not stealing. Mr. Rivello gave each of us a muffin because there was extra
muffins and bagels. I got a muffin and ate it. I never took anything out of the
dining hall. Mr. Rivello had already put up all of the oranges. I did not run from
him either.
[Id., “Summary of Inmate Statement”]
Booker called five other inmates (Martin, Whitlow, Hargis, Sherrill, and Sandoval)
as witnesses to testify on her behalf, and DHO Smart also summarized their testimony.
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[Id., p. 9] According to DHO Smart, these witnesses testified that Booker did not steal any
oranges; that Rivello had offered all of them a muffin that day in the dining room; and that
Booker had eaten one of the muffins that Rivello had offered to them. [Id.]
DHO Smart nevertheless found Booker guilty of the stealing offense, stating that
although he considered Booker’s and the other inmates’ statements, he was more persuaded
by the reporting employee’s version of the events in question. [Id., pp. 9-10, “Finding of the
DHO”] DHO Smart stated that although the other inmate-witnesses testified that Booker
was eating a muffin and not an orange, “I don’t believe Mr. Rivello would confuse muffins
and oranges. I believe Mr. Rivello knows the difference between an orange and a muffin; as
any reasonable person would. In other words, muffins and oranges are not easily confused.”
[Id.] DHO Smart determined that based on the greater weight of the evidence, Booker was
guilty of stealing the oranges in violation of the PAC 219 offense. [Id., § V ]
The DHO imposed sanctions consisting of 15 days of disciplinary segregation; 180
days of lost commissary privileges; and 27 days of forfeited GTC. [Id., p. 11] The DHO
explained that Booker’s theft of the oranges posed “…a serious threat to the ability of staff
to provide for the feeding of the institution population,” and that her conduct kept “…that
food from being used for other inmates which can precipitate arguments and unrest.” [Id.]
Booker appealed her conviction to the BOP Mid-Atlantic Regional Office, again
arguing that the evidence upon which DHO Smart based his findings was insufficient and
that numerous inmates had testified that she did not steal any oranges. [R. 1-2, p. 23]
Booker did not attach the Regional Office’s response, but apparently that office denied her
appeal, because she then appealed to the BOP Central Office [R. 21].
In that final
administrative appeal, Booker again argued that the evidence upon which the DHO had
relied was insufficient.
She also claimed that her TRULINCS e-mail records and her
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TRUFONE transactions for March 2013 substantiated that she could not have stolen the
oranges on the date and at the time alleged in the Incident Report. [Id.].
On November 21, 2013, the BOP Regional Office denied Booker’s final
administrative appeal, concluding that although Booker and her witnesses disputed the
allegation in the Incident Report, her disciplinary conviction was based on sufficient
evidence; that Booker could and should have produced any exculpatory documents, such as
phone and e-mail records, at the hearing, not for the first time on appeal; and that all
disciplinary procedures were substantially followed. [Id., pp. 22; p. 26]1
CLAIMS ASSERTED IN § 2241 PETITION
In her § 2241 petition, Booker contends that the DHO violated her right to due
process of law guaranteed under the Fifth Amendment of the U.S. Constitution by
accepting as true the allegations of the Incident Report, instead of the version of events
which she and her five witnesses advanced. Booker contends that her statement, and the
supporting statements of five other inmates, should have outweighed the theft allegation
asserted by one correctional officer.
Booker further states that she does not own a grey
coat like the one Rivello mentioned in the Incident Report; that she did not run down the
hall and that Officer Gilbert did not stop her as she exited the dining hall; that her
telephone records substantiate that she could not have been in the dining room at the time
of the alleged theft of the oranges; and that a PAC 219 violation can be based only on the
theft of computer-generated data, not oranges. In summary, Booker alleges that the
evidence on which the DHO based his finding of guilt was inadequate.
Booker next asserts that she was unfairly prosecuted on the basis of her race, in
violation of her right to equal protection of the law. She claims that both before and after
The BOP Central Office’s two-page Response was not docketed consecutively; the first page appears at R. 1-2,
p. 22, and the second page appears at R. 1-2. p. 26.
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the alleged events of March 2, 2013, two other FMC-Lexington inmates, Elizabeth Cronan
and Brittany Oaks, were caught stealing food items from the kitchen, but that neither were
prosecuted for theft as she had been. Booker claims that both inmates were even allowed to
keep their prison job in the dining room.
Finally, Booker asserts that her punishment was excessive and disproportionate to
the severity of the underlying offense. She claims that her confinement in disciplinary
segregation, the loss of commissary privileges, and the loss of 27 days of GTC constituted
cruel and unusual punishment.
Booker also claims that she was forced to serve six
additional days in disciplinary segregation, over and above the 15 days ordered as part of
her sanction. Booker seeks an Order directing the BOP to expunge her PAC 219 conviction
from her record, and to reinstate her 27 days of forfeited GTC.
DISCUSSION
Prisoners who face the loss of GTC in prison disciplinary proceedings are entitled to
the due process protections set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). These
protections consist of: (1) written notice of the charges against him at least 24 hours before
the hearing; (2) a written statement by the fact-finder as to the evidence relied upon and
the reason for the disciplinary action; and (3) the opportunity to call witnesses and present
documentary evidence in his or her defense. Wolff, 418 U.S. at 563-66.
Booker does not allege that she was denied these procedural safeguards. Her first
argument is that the evidence upon which DHO Smart based his decision was insufficient
for various reasons, namely because she had more witnesses testify for her than did the
prosecution; that she did not own a grey coat as described in the Incident Report; and that
her phone records (had she presented them at the hearing) would have exonerated her.
Booker, however, ignores a key fact in making this argument, which is that a finding of
guilt in a disciplinary proceeding need only be “‘supported by some evidence in the record.’”
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Edwards v. Balisok, 520 U.S. 641, 648 (1997) (quoting Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 454 (1985)). The “some evidence” standard is a lenient one,
requiring only “a modicum of evidence,” and is met if the record contains any evidence that
could support the [DHO's] decision.
Hill, 472 U.S. at 455–56.
The “some evidence”
standard requires only that the “disciplinary decision is not arbitrary and does have
evidentiary support.” Id. at 457.
Here, the Incident Report, standing alone, constituted the “some evidence” which
supported the DHO’s determination that Booker was guilty of the PAC 219 violation.
Booker contends that the DHO erred by rejecting her version of the facts, and the version
put forth by her inmate witnesses, but the law is clear that a DHO need not accept what
the inmate perceives to be the “best” or most convincing or persuasive set of facts. See
Sarmiento v. Hemingway, 93 F. App’x 65, 68 (6th Cir. 2004) (affirming the DHO’s
determination that the greater weight of the evidence supported his decision finding
Sarmiento guilty of “tampering with a security device” in violation of PAC 208, even where
the facts were in dispute); Johnson v. Patton, No. 06-CV-HRW, 2006 WL 950187, at *5
(E.D. Ky. April 12, 2006) (“While these facts are not one hundred percent conclusive of
whether the petitioner violated Code 108, they are adequate facts upon which to base a
prison disciplinary conviction. They constitute “some” facts upon which the DHO was
entitled to rely in finding the petitioner guilty of violating Code No. 108.”)
Booker next alleges that “theft” under PAC 219 means only the theft of electronic or
computer-generated data, but she has incorrectly interpreted that provision. The clear
language of PAC 291 prohibits “Stealing; theft (including data obtained through the
unauthorized use of a communications device, or through unauthorized access to disks,
tapes, or computer printouts or other automated equipment on which data is stored).” 28
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C.F.R. § 541.3, Section 219 (“High Severity Level Prohibited Acts”). Thus, “traditional”
theft is forbidden at BOP facilities, as well as the theft of the theft of electronic or
computer-generated data. The language describing the prohibited action is inclusive of
both forms of stealing, and is not restricted to one or the other.
Further, to the extent that Booker claims that she was falsely accused, prison
disciplinary proceedings are not criminal prosecutions, and the full panoply of rights due a
defendant in criminal prosecutions does not apply to prison disciplinary proceedings. Wolff,
418 U.S. at 556. Simply put, a prison inmate has no constitutionally-guaranteed immunity
from being falsely or wrongly accused of conduct which may result in segregation. Freeman
v. Rideout, 808 F.2d 949, 951 (2d Cir.1986); Spencer v. Wilson, No. 6:11-CV-128-KSF, 2012
WL 2069658, at *6 (E.D. Ky. June 8, 2012); Wei Chin v. Federal Bureau of Prisons, 4:10-CV1145, 2010 WL 4008846, at *2 (N.D. Ohio Oct. 12, 2010).
As noted, Booker was granted a UDC hearing at which she had an opportunity to
rebut the charge filed against her, and Booker does not allege any procedural infirmities in
connection with the UDC hearing.
Under Freeman, she states no actionable Fifth
Amendment claim based on Rivello allegedly filing false charges against her in the Incident
Report. See Freeman, 808 F.2d at 952–53; see also McMillan v. Fielding, 136 F. App'x. 818,
820 (6th Cir. 2005) (where the prisoner was sanctioned with 10 days in lock up and the loss
of package privileges, the disciplinary hearing afforded him a sufficient means of
challenging allegedly false disciplinary charges brought against him).
To the extent that Booker claims her punishment was excessive, she does not set
forth a claim that would warrant relief from those sanctions. Booker was charged with a
violation of Code 219, a high severity level prohibited act, and all of the sanctions imposed,
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including the forfeiture of 27 days of GTC, were authorized by BOP regulations. See 28
CFR § 541.3, Table 1, Prohibited Acts and Available Sanctions.2
Booker further alleges that she was forced to serve six additional days in segregation
over and above the fifteen days confinement imposed as part of her disciplinary sanction,
and that the additional confinement violated her right to be free from cruel and unusual
punishment as guaranteed by the Eighth Amendment of the U.S. Constitution. [R. 1-2, p.
19] Even if true,3 this allegation does not provide a basis for disturbing her disciplinary
conviction or the sanctions imposed, because habeas corpus relief is not available to
prisoners who complain about the conditions of their confinement or alleged mistreatment
during their legal incarceration. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004);
Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004); Lutz v. Hemingway, 476
F.Supp.2d 715, 718 (E.D. Mich. 2007). Complaints about specific conditions of confinement
“do not relate to the legality of the petitioner’s confinement, nor do they relate to the legal
sufficiency of the criminal court proceedings which resulted in the incarceration of the
petitioner.” Lutz, 476 F.Supp.2d at 718 (quoting Maddux v. Rose, 483 F.Supp. 661, 672
(E.D. Tenn. 1980)).
If Booker wishes to assert an Eighth Amendment claim alleging that she was
confined in disciplinary segregation without justification for six days, she may do so by
BOP Program Statement 5270.07 and 28 C.F.R. § 541.13, at Table 3, set out four levels of offense severity,
Prohibited Acts and Disciplinary Severity Scale, and also set out the range of permissible penalties, any of
which may be imposed alone or with other sanctions on a prisoner who is found guilty of violating any listed
prison offense. One of the authorized sanctions is the loss of a prisoner's GTC, the amount of time to be forfeited
dependent upon the severity of the offense. In the Code 100 series, Greatest Severity Category, the offenses
include Code 100, killing, and 102, assault, for which the prisoner may be penalized with the loss of 27-41 days
of his GTC; the Code 200 series, the High Category, covers stealing, Code 219, the offense with which Booker
was charged, and contains GTC loss of 14-27 days as a permissible penalty for offenses listed thereunder; the
Code 300 series is designated Moderate, and authorizes 1-14 days GTC loss upon a finding of guilty of any
offense numbered in the 300's; and the lowest category, Low Moderate, covers Code 402, malingering, and other
lower offenses, and the loss of GTC therefor is limited to 1-7 days.
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Booker may have been placed in administrative segregation for the six-day period, as opposed to disciplinary
segregation, but she does not allege facts which fully explain the situation. In any event, as explained herein,
she has not properly asserted this particular claim in her § 2241 petition.
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filing a civil rights action under 28 U.S.C. § 1331, pursuant to the doctrine announced in
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).4 The filing fee for such
an action is $400.00, although Booker may seek pauper status and ask to pay that fee in
installments.
Finally, Booker (who is black), alleges that she was selectively prosecuted for
stealing food, while other white inmates who allegedly stole food products were not
prosecuted for committing the same infraction. Specifically, Booker alleges that Rivello did
not file an Incident Report against one of the white inmates, and that Officer Mastin did
not file an Incident Report against the other white inmate.
The record contains no indication that during the disciplinary hearing, Booker
argued she was prosecuted because of her race while other white inmates were not
prosecuted under similar facts. Booker does not allege that she raised this particular issue
at her hearing. Further, in neither of her administrative appeals did Booker allege that she
had allegedly been targeted for disciplinary action because of her race, and that similarly
situated white inmates had not been punished for committing the same infraction. Based
on the documents that Booker attached to her § 2241 petition, the first time she raised this
issue to anyone was in a September 3, 2013, e-mail which she sent to “Food Service.” [R. 12, p. 26].
By not putting the issue of alleged racial discrimination before the DHO, Booker
waived any argument regarding that issue as a basis for challenging her conviction and
The Court takes no position on whether such an Eighth Amendment claim would have merit. To determine
whether a liberty interest is implicated in a prison setting, the interest must be limited to freedom from
restraint which “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The law is well established that prisoners have no
protected liberty interest in remaining free of disciplinary confinement. Id. at 484; Lee v. Young, 43 F. App’x
788 (6th Cir. 2002); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997). The Supreme Court has expressly ruled
that a 30-day placement in disciplinary segregation does not run afoul of the constitution. Sandin, 515 U.S. at
486; see also Hall v. Fuqua, No. 10-13350, 2010 WL 3768345 at *2 (E.D. Mich. Sept.21, 2010) (finding that 30
days of detention in segregation and loss of privileges were not “atypical and significant hardship[s]” on the
prisoner).
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resulting sanctions. See Davis v. Zuercher, No. 7:08-CV-207-KKC, 2009 WL 585807, at *9
(E.D. Ky. Mar. 6, 2009) (finding that inmate challenging his disciplinary conviction had
waived issue of mental capacity by not asserting it at his hearing). Even had Booker raised
the issue at her hearing, the DHO still had “some evidence” to support the finding of guilt.
As noted, a district court’s role is not to re-try a prison disciplinary hearing. Federal courts
will not review the accuracy of a disciplinary committee's finding of fact. Kelly v. Cooper,
502 F. Supp. 1371, 1376 (E.D. Va.1980). Such findings will only be disturbed if they are
unsupported by any evidence or are wholly arbitrary and capricious. Smith v. Rabalais,
659 F.2d 539, 545 (5th Cir.1981), cert. denied, 455 U.S. 992 (1982).
Although Booker and her witnesses vehemently disputed the facts set forth in the
Incident Report, DHO Smart’s findings were not wholly arbitrary and capricious. Booker
has not alleged facts which would enable the Court to expunge her disciplinary conviction
and reinstate her forfeited GTC. For these reasons, Booker’s § 2241 petition will be denied.
CONCLUSION
Accordingly, for the reasons discussed above, it is hereby ORDERED as follows:
1.
LaShawn Booker’s 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1]
is DENIED;
2.
The Court will enter an appropriate judgment; and
3.
This habeas proceeding is DISMISSED and STRICKEN from the Court’s
docket.
This October 6, 2014.
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