Redmond v. Samuels
Filing
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MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall LIST "Jesse R. Redmond," as an alias designation for the Petitioner, Jesse R. Redmond, Jr. 2. The Clerk of the Court shall TERMINATE "Charles Samuels, Director of the BOP,& quot; and shall SUBSTITUTE USP-McCreary Warden J. C. Holland as the proper respondent to this proceeding. 3. Redmond's Motion to Amend [R. 9 ] (his § 2241 petition) is GRANTED, and the Clerk of the Court shall docket Record No. 9 as Redmon d's Amended § 2241 Petition. 4. Redmond's 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1 ] and his Amended § 2241 Petition [R. 9] are DENIED; 5. The Court will enter an appropriate judgment; and 6. This habeas proceeding is DISMISSED and STRICKEN from the Court's docket. Signed by Judge David L. Bunning on 7/9/15.(SYD)cc: mailed to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 15-30-DLB
JESSE R. REDMOND, JR.,
a/k/a JESSE R. REDMOND,1
v.
PETITIONER
MEMORANDUM OPINION AND ORDER
J. C. HOLLAND, WARDEN,
RESPONDENT
****
****
****
****
Petitioner Jesse R. Redmond, Jr., a/k/a Jesse R. Redmond, is an inmate confined
by the BOP in the United States Penitentiary ("USP")-McCreary, located in Pine Knot,
Kentucky. Redmond has filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, challenging the evidence upon which a Disciplinary Hearing Officer ("DHO")
at another prison relied upon in finding him guilty of stealing various items in late October,
2012. See 2241 Petition, R. 1; Amended § 2241 Petition, R. 9.2 In this proceeding,
1) The Bureau of Prisons ("BOP") identifies Redmond, BOP Register No. 08558-007, as "Jesse
R. Redmond," not as "Jess R. Redmond, Jr." See http://www.bop.gov/inmateloc/ (last visited on
June 23, 2015). Accordingly, the Clerk of the Court will be instructed to list "Jesse R. Redmond"
as an alias designation on the CM/ECF cover sheet. Further, Redmond has named Charles
Samuels, the Director of the BOP, as the respondent. The only proper respondent to a petition for
a writ of habeas corpus is the individual having immediate custody of the person detained, typically
the warden of the facility where the petitioner is confined. 28 U.S.C. §2243; Rumsfeld v. Padilla,
542 U.S. 426, 435 (2004). As the current warden of USP-McCreary is J. C. Holland, the Clerk of
the Court will be instructed to terminate Charles Samuels and to substitute J. C. Holland as the
proper respondent to this proceeding.
2) Redmond originally filed his § 2241 petition on October 7, 2013, in the United States District
Court for the District of Columbia. Redmond v. Samuels, No. 13-01781 (TFH) (D. D. C. 2014). On
February 5, 2015, that court transferred Redmond’s § 2241 petition to this district, based on venue
considerations and the fact that Redmond is confined in a prison located in this district. [R. 5] The
transfer was not effectuated until February 26, 2015. [R. 7]
Redmond seeks an order setting aside his disciplinary conviction.
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 Redmond is not represented by an attorney, the Court evaluates his 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 Redmond's factual allegations and liberally construes his legal claims in his favor.
As explained below, however, Redmond's habeas petition will be denied because he has
not alleged facts supporting his assertion that his disciplinary conviction should be set
aside.
I. BACKGROUND
On October 31, 2012, Redmond was confined in the USP-Lewisburg, located in
Lewisburg, Pennsylvania.
On that date, at 9:30p.m., "C." Lytle, a USP-McCreary
Correctional Officer, was conducting a random inspection of Cell 119, which Redmond
occupied. When Officer Lytle opened Redmond's cell, he discovered a honey bottle
half-filled with hand sanitizer made of 62% ethyl alcohol; four plastic bags, two filled with
uncooked rice, one filled with uncooked grits, and one filled with brown sugar; 16 alcohol
prep pads saturated with 70% isopropyl alcohol; and an identification card belonging to
another USP-McCreary inmate. Officer Lytle issued an Incident Report charging Redmond
with: (1) possession of narcotics, marijuana, drugs, alcohol, and intoxicants not prescribed
by the medical staff, in violation of BOP Prohibited Acts Code ("PAC") 113; (2) introduction
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or making of narcotics, marijuana, drugs, alcohol, and intoxicants not prescribed by the
medical staff, in violation of PAC 111; (3) stealing, in violation of PAC 219; (4) possession
of stolen property, in violation of PAC 226; and (5) possession of anything not authorized
or retention by receipt of an inmate, in violation of PAC 305. [R. 1, p. 15, § 9] Officer Lytle
concluded that Redmond had stolen these items because he was at that time employed
as a hospital orderly at the prison. [Id., § 11] Based on the photographic evidence and
Officer Lytle's report, the Unit Disciplinary Committee at USP-Lewisburg referred the
charges to the DHO for further disposition. [Id., §§ 18-20]
The case proceeded to a hearing before the DHO. Redmond did not attach a copy
of the DHO's Report, but even so, the administrative remedy documentation which he did
provide explains what transpired at the disciplinary hearing and thereafter, during the
administrative remedy process. J. L. Norwood, the Director of the BOP's Northeast
Regional Office ("NERO"), states in his (or her) March 6, 2013 administrative remedy
response that the DHO issued his Report on the disciplinary hearing on December 17,
2012; that the DHO found Redmond guilty of possessing stolen property in violation of PAC
226; and that the DHO imposed the following sanctions on Redmond:
30 days'
confinement in disciplinary segregation; 90 days' loss of commissary and visiting privileges;
and 90 days' loss of telephone privileges. [R. 1, p. 14]3
3) Norwood stated that Redmond's 90-day telephone restriction privilege was suspended pending
clear conduct. [R. 1, p. 14] Further, on January 29, 2013, the Warden of USP-Lewisburg submitted
a request to the BOP, asking that Redmond be transferred from USP-Lewisburg to "any High
security level institution," based on Redmond's December 17, 2012, disciplinary conviction and his
"poor institutional conduct" which jeopardized "…the security and good order of the institution." [Id.,
p. 17, § 3] Redmond was transferred to USP-McCreary, although the date on which he was
transferred to that facility is not known.
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Redmond then appealed the DHO's Report to the NERO, asserting that the
conviction was not supported by the evidence because no one had complained that the
items found in his locker had been stolen. Norwood denied Redmond's BP-10 appeal,
stating as follows:
The DHO reasonably determined you committed the prohibited act
based on the following. On October 31, 2012, a search of your cell revealed
numerous food and medical items in your locked locker. The items were not
issued to you through regular channels. As such, staff reasonably concluded
they were stolen. Although you were not observed stealing the items, you
were found in possession of them, a fact you admitted.
The record in this case reflects substantial compliance with Program
Statement 5270.09, Inmate Discipline. The decision of the DHO was based
on the greater weight of the evidence, and the sanctions imposed were
consistent with the severity level of the prohibited act….Accordingly, your
appeal is denied.
[R. 1, p. 14]
Redmond then filed a BP-11 appeal with the BOP's Central Office, arguing therein
that the DHO had insufficient evidence upon which to base his finding of guilt, and that the
DHO failed or refused to consider other factual scenarios or possibilities which might have
led to the presence of the items discovered in his cell on October 31, 2012. [Id., pp. 11-13]
On August 2, 2013, the BOP's Office of Information Policy issued a letter
acknowledging Redmond's appeal, assigning a case number to it, and advising Redmond
that it would address his appeal in the order it was received. [Id., p. 10] Redmond states
that the BOP Central Office has not responded to his final administrative appeal. [Id., p.
4] Thus, by operation of regulation, the Central Office has denied Redmond's BP-11
appeal. If an inmate does not receive a response within the time allotted, he may consider
the absence of a response to be a denial at that level. 28 C.F.R. § 542.18.
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II. CLAIMS ASSERTED IN REDMOND’S § 2241 PETITION
Redmond reiterates the argument which he asserted in his administrative appeal,
i.e., that the evidence upon which the DHO relied in finding him guilty of the PAC 226
violation was insufficient. Redmond contends that the disciplinary conviction violated his
right to due process of law in violation of the Fifth Amendment of the U.S. Constitution.
Redmond asserts that he was denied due process of law during his disciplinary
hearing because the DHO accepted as true the facts as alleged in the Incident Report and
failed to consider other circumstances which could have led to the discovery of the various
items in his locker. Redmond provides little (if any) information in support of his broad
challenge to the sufficiency of the evidence upon which his disciplinary conviction was
based.
He states only, "The disciplinary infraction report completely rested upon
uncorroborated evidence and has no other indications that the petitioner stealing the items
from the hospital, or possessing the stolen property." [R. 1, p. 7]
Redmond has also filed a motion to amend his § 2241 petition [R. 9]. In that motion,
he states:
The petitioner sought a [sic] informal resolution seeking a review of the
electronic surveillance cameras while the petitioner in administrative
segregation unit prison official's had failed to timely respond to the petitioner
[sic] informal resolution.
[Id., pp. 1-2]
Redmond's reference to "electronic surveillance" in the context of his § 2241 petition
is difficult to follow. The only discernible connection to, or explanation of, the "electronic
surveillance" issue that can be found in Redmond's filings consists of a one-page document
attached to his § 2241 petition, in which Redmond discusses his version of the events of
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October 31, 2012. [R. 1, p. 16]
Redmond states that on October 31, 2012, he had been subjected to two successive
"shakedowns" at USP-Lewisburg, and that during the second "shakedown," prison officials
confiscated a toilet seat cover (which Redmond used for hygiene purposes) as well as
some card board boxes, and that he had been called to the Lieutenant's office to explain
about the toilet seat cover being found in the trash. [Id.] Redmond states, "A review of the
cameras will show my movements after leaving the Lieutenant's office, and at not [sic] time
did I go in the trash or come in contact with anyone, in the hall or in block, who could even
be able to do such a thing." [Id.] Redmond further alleges that he was "…just trying to
figure out if there was some policy that governed me getting two shakedowns in one night."
Id.
III. DISCUSSION
The due process to which prisoners are entitled during the prison disciplinary
process is set forth in 28 C.F.R. § 541.8 and in Wolff v. McDonnell, 418 U.S. 539 (1974).
In Wolff, the United States Supreme Court explained that when a prison disciplinary hearing
may result in the loss of good conduct time credits ("GTC"), due process requires that the
inmate receive: 1) written notice of the charges at least 24 hours in advance of the
disciplinary hearing; 2) a written statement by the fact finder as to the evidence relied on
and reasons for the disciplinary action; 3) an opportunity to call witnesses and present
documentary evidence in his or her defense when doing so would not be unduly hazardous
to institutional safety or correctional goals; and 4) the assistance of staff or a competent
inmate when the inmate is illiterate or when the issues are complex. 418 U.S. at 564-570.
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Redmond has alleged no facts indicating that USP-Lewisburg officials failed to
comply with the notice requirements set forth in Wolff. It appears from the Incident Report
that Redmond did in fact receive proper notice of the charges filed against him. Further,
the sanctions imposed on Redmond consisted of only 30 days' confinement in disciplinary
segregation; 90 days' loss of commissary and visiting privileges; and 90 days' loss of
telephone privileges (the latter subject to suspension pending clear conduct). Redmond
alleges no facts indicating that was ordered to forfeit any GTC. Thus, the length of
Redmond's federal sentence was not adversely impacted, which means that his § 2241
petition, as amended, can succeed only if he can establish that he had a liberty interest in
remaining free from disciplinary segregation and the temporary revocation of visiting,
commissary, and telephone privileges.
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 485-86; Lee v. Young,
43 F. App'x 788 (6th Cir. 2002); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997).
Further, Redmond was ordered to serve only 30 days in disciplinary confinement, and the
Supreme Court has expressly ruled that a 30-day placement in disciplinary segregation
does not run afoul of the U.S. Constitution, particularly where a prisoner, such as
Redmond, is serving a life sentence. 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
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hardship[s]" on the prisoner).
Likewise, the temporary restriction on Redmond's visiting privileges was not
unreasonable because prison inmates have no constitutional right to visitation. See
Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997). The temporary restriction on
Redmond's commissary privileges also did not qualify as a constitutional deprivation, as
such a sanction is not considered to be an unusual or atypical condition of confinement.
See Davis v. Zuercher, No. 7:08-CV-207-KKC, 2009 WL 585807, at *6 (E. D. Ky. Mar. 6,
2009) ("The other sanctions which were imposed (temporary loss of phone, visitation and
commissary privileges) also fail to give rise to an actionable challenge under the Fifth
Amendment. The law is well established that the temporary loss of privileges does not
constitute a loss of a liberty interest in which prisoners have vested rights."); Higgason v.
Farley, 83 F.3d 807, 809 (7th Cir. 1996) (denial of access to privileges such as social and
rehabilitative activities did not constitute an atypical and significant hardship); Frazier v.
Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (loss of commissary, recreation, package, and
telephone privileges were not an atypical and significant hardship). Finally, the temporary
suspension of a prisoner's telephone privileges does not implicate a protected liberty
interest. See Halcrombe v. Sniezek, No. 4:07-CV-779, 2007 WL 1875678, at *4 (N.D. Ohio
June 27, 2007); Johnson v. Vroman, No. 1:06-CV-145, 2006 WL 1050497, at *2 (W.D.
Mich. April 19, 2006).
Because none of the identified sanctions imposed on Redmond caused him to serve
a longer federal sentence or suffer an atypical hardship in relation to ordinary prison life,
he has not set forth grounds entitling him to relief from his disciplinary conviction. See,
e.g., Boriboune v. Litscher, 91 F. App'x 498, 500 (7th Cir. 2003) (finding that the prisoner's
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short-term loss of telephone privileges and disciplinary segregation implicated no liberty
interest and triggered no due process protection); Jessiah v. Holland, No.
12-CV-144-GFVT, 2013 WL 460624, at *1 (E.D. Ky. Feb. 6, 2013) (denying prisoner's §
2241 petition where his disciplinary sanctions consisted only of the loss of his prison job
and temporary telephone privileges, not the loss of GTC).
Even assuming that Redmond had sustained the loss of GTC, his due process
claim–that the DHO failed to consider and accept other versions of the events of October
31, 2012–fails because a finding of guilt in a disciplinary proceeding need only be
"'supported by some evidence in the record.'" 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.
Here, "some evidence" supported the DHO's finding that Redmond was guilty of the
PAC 226 violation, and that evidence consisted of the allegations and charges set forth in
the Incident Report.4 As NERO Director Norwood explained during the administrative
remedy process, the DHO was free to fully accept as true Officer Lytle's observations on
October 31, 2012, as well as his assessment that Redmond, a prison hospital employee
with access to medical supplies, had stolen the items discovered in his locker. The Incident
Report, standing alone, constituted "some evidence" in support of the DHO's conclusion
that Redmond was guilty of the PAC 226 violation. A district court's role is not to re-try a
4) As noted, the Incident Report charged Redmond with having committed several disciplinary
offenses, but the DHO convicted Redmond of just one infraction, the PAC 226 violation.
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prison disciplinary hearing, weigh the evidence, or independently assess witness credibility.
Hill, 472 U.S. at 455. 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).
Redmond contends that the DHO erred by rejecting another version (or versions)
of the events of October 31, 2012, but 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.")
Next, to the extent that Redmond may be claiming in his motion to amend [R. 9] that
the BOP ignored its own procedures and policies by failing to view or consider videotape
of the events of October 31, 2012, he states no grounds entitling him to relief. First,
Redmond's description of the events on that date, set forth on page 16 of his § 2241
petition, appears to relate solely to the confiscation of a toilet seat cover and his complaints
about successive shakedowns. His discussion does not explain how reviewing the video
surveillance tape of those alleged events would have assisted him with respect to the
charges set forth in the Incident Report.
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Second, the requirements of procedural due process are defined by the United
States Constitution, not by an agency's internal regulations or guidelines. Sandin, 515 U.S.
at 485. Thus, an agency's alleged failure to adhere to its own policies does not state a due
process claim. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, (1985); Smith v.
City of Salem, Ohio, 378 F.3d 566, 578 (6th Cir. 2004); Slater v. Holland, No.
0:11-CV-86-HRW, 2012 WL 1655985, at *5 (E.D. Ky. May 10, 2012).
Third and finally, a prisoner's claim that a DHO failed to view a video tape, or that
he did not do so at the point in time requested by a prisoner, simply does not rise to the
level of a due process violation. Courts in the Eastern District of Kentucky have held that
"the DHO decision not to review video tape evidence does not constitute a denial of due
process under Hill and Wolff." Harvey v. Wilson, No. 6:10-CV-235-GFVT, 2011 WL
1740141, at *10 (E.D. Ky. May 5, 2011) (collecting cases); Davis, 2009 WL 585807, at *7-8
(finding federal inmate's claim that he or his representative should have been allowed to
view videotape of events leading to the incident report lacked merit; disciplinary proceeding
complied with requirements established in Wolff); see also McKeithan v. Beard, 322 F.
App'x 194, 201 (3d Cir. 2009) ("[T]he videotape and photographs at most constitute
potentially exculpatory evidence, which prison officials have no constitutional obligation to
preserve or consider."). Thus, the DHO's construed refusal to consider or view a video
tape prior to, or during, the disciplinary hearing does not provide a basis for setting aside
Redmond's disciplinary conviction.
Redmond's motion to amend his § 2241 petition [R. 9] will be granted, but his
amended § 2241 petition does not set forth grounds entitling him to relief. Because
Redmond is not entitled to relief from his disciplinary conviction, his § 2241 habeas petition
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and amended § 2241 petition will be denied.
IV. CONCLUSION
Accordingly, for the reasons discussed above, it is hereby ORDERED as follows:
1.
The Clerk of the Court shall LIST "Jesse R. Redmond," as an alias
designation for the Petitioner, Jesse R. Redmond, Jr.
2.
The Clerk of the Court shall TERMINATE "Charles Samuels, Director of the
BOP," and shall SUBSTITUTE USP-McCreary Warden J. C. Holland as the proper
respondent to this proceeding.
3.
Redmond's Motion to Amend [R. 9] (his § 2241 petition) is GRANTED, and
the Clerk of the Court shall docket Record No. 9 as Redmond's Amended § 2241 Petition.
4.
Redmond's 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1] and
his Amended § 2241 Petition [R. 9] are DENIED;
5.
The Court will enter an appropriate judgment; and
6.
This habeas proceeding is DISMISSED and STRICKEN from the Court's
docket.
This 9th day of July, 2015.
G:\DATA\ORDERS\ProSe\Redmond 15-30 MOO denying 2241.wpd
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