Freeman v. Johnson

Filing 4

MEMORANDUM ORDER: Directing plaintiff to amend petition. Pro Se Response due by 7/2/2018. Signed by Magistrate Judge Joseph H L Perez-Montes on 5/31/2018. (crt,Haik, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ALEX FREEMAN,
Petitioner

CIVIL ACTION NO. 1:18-CV-400-P

VERSUS

JUDGE JAMES T. TRIMBLE, JR.

CHARLES JOHNSON,
Respondent

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2241) filed
by pro se Petitioner Alex Freeman (#41692-074) (“Freeman”). Freeman is an inmate
in the custody of the United States Bureau of Prisons (“BOP”), incarcerated at the
United States Penitentiary in Pollock, Louisiana. Freeman challenges a disciplinary
conviction that resulted in the loss of good time.
I.

Background
Freeman alleges that Inmate Devonte Travier’s property was searched

pending his release from prison. Two sealed, postage paid letters were found in
Inmate Travier’s property, addressed to individuals in Fort Wayne, Indiana, and
Chattanooga, Tennessee. (Doc. 1-3, p. 1). One letter was signed: “Vic,” and the other
was signed: “Vic da’ Don.” The subject of the letters was obtaining drugs and cell
phones at the Federal Correctional Institution in Terre Haute, Indiana, where
Freeman and Inmate Travier were incarcerated at the time.

(Doc. 1-3, p. 1).

Approximately one month later, Freeman was identified as “Vic” because his
nicknames include: “Lil Vic,” “Little Vic,” and “Vic Freeman.” (Doc. 1-3, p. 7).

Because both letters were signed by someone with Freeman’s nickname, and
both addressees had some connection to Freeman, he was charged with a disciplinary
violation. (Doc. 1-3, p. 1).
II.

Instruction to Amend
A.

Freeman must show that he exhausted administrative remedies.

A district court has authority to grant a writ of habeas corpus if a prisoner is
in custody in violation of the Constitution, laws, or treaties of the United States. 28
U.S.C. § 2241. Although the statute does not explicitly require prisoners to exhaust
available administrative remedies before filing a petition, the United States Court of
Appeals for the Fifth Circuit has held that prisoners must exhaust available
administrative remedies before seeking relief in court. See Fuller v. Rich, 11 F.3d 61,
62 (5th Cir. 1994). In order to satisfy the exhaustion requirement, “a prisoner must
complete the administrative process in accordance with applicable procedural
rules....” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). As a result, inmates must
exhaust their administrative remedies in a procedurally correct manner. See Dillon
v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010).
The BOP administrative remedy procedures are set forth in Title 28 C.F.R. §§
542.10-542.18, which provides formal review of any complaint that relates to any
aspect of the inmate’s confinement. Under § 542.14(d)(2), Discipline Hearing Officer
(DHO) appeals shall be submitted initially to the Regional Director where the inmate
is located. See 28 C.F.R. § 542.14(d)(2) (2016). If the inmate is dissatisfied with the
regional response, he or she may file a national appeal with the Office of General

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Counsel in Washington, D.C., within 30 calendar days of the date the Regional
Director signed the response. See 28 C.F.R. § 542.15(a) (2016). Appeal to the Office
of General Counsel is the final administrative appeal in the BOP process. Id.
Freeman states that he appealed to the Regional Director, and his appeal was
denied. (Doc. 1, p. 2). Freeman does not state whether he sought further review in
the administrative process. Freeman must amend his petition to show complete
exhaustion. See Martin v. Young, 607 F. App’x 421, 422 (5th Cir. 2015) (substantial
compliance is insufficient to satisfy the requirements of exhaustion) (citing Wright v.
Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001)). Freeman should state whether he
completed each step of the administrative process, and he should provide copies of
the response received at each step.
B.

Freeman must amend to show that he was denied due process.

A federal prisoner has a liberty interest in his accumulated good time credits.
Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000). Thus, the
“revocation of such credit must comply with minimal procedural requirements.” Id.
However, “[p]rison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due [to] a defendant in such proceedings does not apply.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The due process that an inmate must
receive in a disciplinary hearing is: (1) written notice of the charges against him at
least 24 hours before the hearing; (2) a written statement of the fact-finder as to the
evidence relied on and the reasons for the disciplinary action taken; (3) the
opportunity to call witnesses and present documentary evidence in his defense,

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unless these procedures would create a security risk in the particular case; and (4)
some assistance in the collection and presentation of evidence if the inmate is
illiterate or the case appears complex. See Henson v. U.S. Bureau of Prisons, 213
F.3d 897, 898 (5th Cir. 2000); Walker v. Navarro County Jail, 4 F.3d 410, 412 (5th
Cir. 1993); Wolf v. McDonnell, 418 U.S. 539, 563-66 (1974).
Additionally, there must be “some evidence” that supports the disciplinary
decision. Id. A court’s determination of whether this standard is satisfied does not
require examination of the entire record, independent assessment of the credibility
of witnesses, or weighing of the evidence. See Superintendent, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 455 (1985). “Prison disciplinary proceedings are overturned only
where no evidence in the record supports the decision.” Broussard v. Johnson, 253
F.3d 874, 877 (5th Cir. 2001). The information provided in a written incident report,
standing alone, can satisfy the “some evidence” standard. See Hudson v. Johnson,
242 F.3d 534, 537 (5th Cir. 2001).
Freeman does not allege that he was deprived of written notice of the charges,
a written statement of the fact-finder, the opportunity to call witnesses and present
evidence, or the deprivation of a staff representative. Freeman should amend his
complaint to state whether he claims he was denied any of the constitutional
guarantees of Wolff listed above.

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II.

Conclusion
IT IS ORDERED that Freeman amend his complaint within 30 days of the filing

of this Order to provide the information outlined above, or dismissal will be
recommended under Rule 41(b) of the Federal Rules of Civil Procedure.
31st
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this ____
day of May, 2018.
____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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