Graham v. Warden
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/22/2017. (c/m 2/22/2017 aos, Deputy Clerk)
IN HIE UNITED STATES DISTRICT
FOR THE DISTRICT
,..,. c- ...•
Civil Action No. G,IH.16.16.t7
No, 4. in rcsponsc
Warden lOCI Cumbcrland
to the above-entitled
pursuant to 28 U.S.c.
~ 2241. Petitioner
the reasons statcd herein. Rcspondent's
movcs to dismiss or lar summary judgmcnt.
Pctition far Writ of I labeas Corpus. ECF No, I. filcd
Vincent Graham opposcs the motion. ECF NO.8. For
as a Motion lar Summary
shall be granted and the petition shall be dismissed.
A. The Incident and Resultin::: Petition
the Federal Correctional
is a Federal Bureau of Prisons ("BOP")
states that on February
8. 2015. while ineareerated
New York. "he had a minor disagreement
at the Metropolitan
with another inmate. Larry
I Respondent's dispositive submission \vill be treated as a Motion for SUlllmary Judgment under Federal Rule of
Civil Procedure 56 because materials outside the original pleadings have been considered. See Bosixer t'. u.s.
Airu'(/.rs. 510 F.3d ~42. 450 (4th Cir. 2007).
Skinner. about a Super Bowl game:' ECF No. I at 8.2 Graham states that other inmates
intervened in the disagreement. and that Cadre Officer Hernandez placed both Graham and
Skinner in the Speciall-lousing Unit (""SHU") as a result of the disagreement. Id.
Graham alleges that on February 9. 2015. a "SIA officer"' wrote an incident report stating
that surveillance tapes were reviewed in the "cadre unit:' and prison officials determined that
Graham and Skinner were "attcmpting to tight:' Id. The incident report described Graham and
Skinner being in a "lighting stance moving towards each other:' Id. Graham denies that he or
Skinner were ever in a lighting stance and asserts that had that been true. Officer Ilernandez
would havc included that information in his memorandum written on the day of the incident. /d.
Graham states that the resulting decision linding him guilty of attempting to light was
improper because: the charge (20 IA) does not reference a proper violation because "all
violations consist of only numbers without leiters following the number"': the evidence did not
support the hearing officer's decision: Graham was denied the opportunity to view the video:
there was a miscalculation of his security custody level score: the SIA officer misstated the facts
in the incident report: and the hearing officer tricked him into waiving a continuation when it
became known his staff representative was unavailable. ECF No. I at 8-9. As reliet: Graham
seeks to have the incident report removed from his prison record and the restoration of the 27
days of good conduct that were revoked. Id. at 9.
B. The BOP Discipline
Respondent explains that when BOP staff have a reasonable belief that a violation ofa
Bureau regulation has been committed by an inmate. they prepare an ineident rep0l1. ECF No. 4I at 2: see a/sa 28 C.F.R. ~ 541.5(a). The inmate is provided with a written copy of the charges
2 Pin cites to documents
by that system.
tiled on the Court's electronic tiling system (CM/ECF) refer to the page numbers generated
against him. which is usually done within twenty-four hours of the time staff became aware of
the inmate's involvement in an incident warranting a report. 28 C.F.R.
* 541.5(a). When the
written report is provided. an investigating oflicer reads the charges to the inmate and asks for
the inmate's statement concerning the incident.
* 541.5(b). An investigation
is conducted. and all
steps and actions taken are recorded on the incident report. See id. All relevant materials are then
lorwarded to the Unit Disciplinary Committee ("UDC)
lor an initial hearing. See 28 C.F.R.
The UDC holds an initial hearing. ordinarily within five working days from the time the
incident report was issued. excluding the day the incident report was issued. weekends. and
holidays. See 28 C.F.R.
* 541.7(c). The inmate is entitled to be present at the initial hearing.
except during deliberations of the decision makers. or when institutional security would be
jeopardized by the inmate's presence. See 28 C. F.R.
* 541. 7(d). The inmate is entitled to make a
statement and to present documentary evidence on his own behal I'at the initial hearing. See 28
* 541.7(e). The UDC makes a decision "based on at least some facts and. if there is
conflicting evidence. on the greater weight of the evidence:' hi.. or may refer the report to a
Disciplinary Hearing Ot1icer (DHO) for further proceedings.
* 541. 7(g).
At the DIIO hearing. the inmate may appoint a staff representative. 28 C.F.R.
The inmate is also entitled to provide the names of witnesses the inmate wishes to be called to
testify at the hearing and what testimony they are expected to provide.
* 541.8(1). The DHO
considers all evidence presented at the hearing and bases his decision on at least some facts. and
if there is conflicting evidence. on the greater weight of the evidence. Id. The DHO prepares a
written report explaining his decision and provides a copy to the inmate.
Pursuant to these regulations.
20 IS. where he denied the allegations
toward Skinner. but admitted
Graham was provided
a UOC hearing on February
and claimed he was not in a fighting stance or moving
they had a disagreement.
ECF No. 4-4 at 2. The UOC referred the
charge to the DHO based on the severity of the incident. ECF No. 4-2 ~ 2. Graham was provided
with a copy of his rights for the OHO hearing and elected to have a staff representative
hearing. but did not request witnesses.
ECF No. 4-5 at 1-2.
OlIO Daniel Garcia. who presided over the February
relied upon to arrive at a guilty finding included Graham's
Graham and Skinner in the common
hearing. noted that the
area of unit 832. and the officer's
No. 4-6 at 2. The hearing oflicer noted that:
I also reviewed the video and also observed you and Skinner arguing with
each other in the common area of unit 832. He would walk away and your (sic)
were behind him both continuing to argue. There was an inmate that was between
you both. lIe walked toward his bunk to put his sneakers on and you walked to
your bunk area. lIe was being held back by an inmate as you were walking toward
him. He got past the inmate. You threw something that you had in your hands to
the side and you both approached each other preparing to fight. Again another
inmate got in between you both. This time an inmate pushed you away from the
situation and another inmate was pushing him away from the situation.
It was noted you had every opportunity to leave this area but you stayed.
You could have left out of the unit and toward the unit team. You had every
opportunity to leave this area but you did not.
Jd. The sanctions
were 30 days of disciplinary
90 days of impound
for the sanction
180 days loss of
and 27 days loss of good conduct.
Id. The rationale
is noted as follows:
Fighting A ... cannot be tolerated because it is a clear violation of a prohibited
act. This type of behavior disrupts the orderly running of this institution and
staffs ability to perform their assigned duties. This type of action is unacceptable
and if allowed to continue uncorrected, tends to encourage other inmates to
participate in the same type of behavior. ... These sanctions are imposed to deter
you from future negative behavior and to again remind you that you arc expected
to follow the rules and regulations of the institution and any BOP facility.
STANDARD OF REVIEW
Summary Judgment is governed by Fed. R. Civ. 1'. 56(a). which provides that ..[tlhe court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law:' Fed. R. Civ. P. 56(a).
The Supreme Court has clarified that this docs not mean that any factual dispute will defeat the
motion explaining. "rb]y its very terms. this standard provides that the mere existence of sOllie
alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment: the requirement is that there be no genuine issue of lIIaterial
Liberty Lobby. Inc., 477 U. S. 242, 247--48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment 'may not rest
upon the mere allegations or denials of [his] pleadings.' but rather must 'set forth specific facts
showing that there is a genuine issue for trial. ... Boucllal
Baltilllore Ral'ens Foolhal! Cluh.
Inc .. 346 F.3d 514. 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
The court should "view the evidence in the light most favorable to ... the nonmovant. and draw
all inferences in rhis]fa\"(lf without weighing the evidence or assessing the witness' credibility:'
Colulllbia Colle Ion Med. Clr .. Inc .. 290 F.3d 639. 645 (4th Cir. 2002). The court must.
however. also abide by the "affirmative obligation of the trial judge to prevent factually
unsupported claims and defenses from proceeding to trial." Boucllat, 346 F.3d at 526 (internal
quotation marks omitted) (quoting Dre\l'ill
Prall. 999 F.2d 774, 778-79 (4th Cir. 1993). and
citing CelOlex Corp. \'. Calrell. 477 U.S. 317. 323-24 (1986)).
Prisoners retain rights under the Due Proccss Clause. but prison disciplinary proceedings
are not part of a criminal prosecution and the full array of rights due a defendant in such
proceedings does not apply. See Wo([(l'. McDol1l1ell. 418 U.S. 539. 556 (1974) (citing Morrissey
\'. Brewer. 408 U.S. 471.488 (1972)). In prison disciplinary proceedings where an inmate faces
the possible loss of diminution credits. he is entitled to certain due process protections. These
include: (I) advance written notice of the charges against him: (2) a written statement of the
evidence relied on and the reasons for taking any disciplinary action; (3) a hearing where he is
afforded the right to call witnesses and present evidence when doing so is not inconsistent with
institutional safety and correctional concerns. and a written decision: (4) the opportunity to have
non-attorney representation when the inmate is illiterate or the disciplinary hearing involves
complex issues: and (5) an impartial decision-maker. See Wolff: 418 U.S. at 564-66. 592.
There is no constitutional right to confront and cross-examine witnesses or to retain and
be appointed counsel at inmate disciplinary hearings. See Baxter
Palmigial1o. 425 U.S. 308.
322 (1976): Browl1 t'. Braxtol1. 373 F.3d 501. 504-05 (4th Cir. 2004). As long as the hearing
officer's decision contains a written statement of the evidence relied upon. due process is
satisfied. See Baxter. 425 U.S. at 322. n.5. Moreover. substantive due process is satislied if the
disciplinary hearing decision was based upon "some evidence:' Superil1tel1del1t.Mass. ClI/T.
Hill. 472 U.S. 445. 455 (1985). Federal courts do not review the correctness ofa
disciplinary hearing ofticer's lindings of f11Ct. Kelly \'. Cooper. 502 F. Supp. 1371. 1376
(E.D. Va. 1980). The findings will only be disturbed when unsupported by any evidence. or
when wholly arbitrary and capricious. See Hill. 472 U.S. at 456: see also Baker \'. Lyles. 904
F.2d 925. 933 (4th Cir. 1990). As long as there is some evidence in the record to support a
disciplinary committee's factuallindings.
a federal court will not review their accuracy.
In his Opposition. Graham states that he was denied due process at the UDC hearing
because only one staff member was present and the 1301' rule requires the committee to be made
up of ..two or more staff members with the authority to hold an initial hearing:' ECF NO.8 at I.
He states that Case Manager M. Chissolm was the only member present during the UDC hearing.
Ill. Graham is correct in his observation that only one staffmember"s signature appears on the
UDC report. See ECI' No. 8-2 at 1. The UDC hearing. however. did not result in any sanctions
being imposed on Graham; rather. the only result was a referral to the DHO for another hearing
to detemline his guilt or innocence. it/.. thus the absence of another stafT member does not violate
the Constitution even though it did not comply with 1301' rules. See e.g.. Riccio \'. COlln/)' rJ/"
Fail/ax. 907 F.2d 1459. 1466 (4th Cir. 1990) ("A state does not necessarily violate thc
Constitution every time it violates one of its rulcs"). Whcre. as here. the rule in question does not
result in a denial of that which is guaranteed by the Due Process clause. the violation of the rule
does not amount to a Constitutional violation.
Graham further maintains that "201 A" is not a valid rule citation and rclies upon a list of
rules promulgated by the 1301'. ECF NO.8 at I; ECF No. 8-2 at 4. Rule 201 is described as
lighting with another person: however. Graham was charged with attempting to tight with
another person and the notice he was provided makes that ttlCtclear. ECF No. 4-2 '14. The
designation of "20 1A" is an indication that Graham was charged with an attempt to violate Rule
201. See ECF 4-1 at 11. (Program Statement 5270.09. Inmate Discipline Program). There is no
violation of the due process clause through the use of such a designation: to conclude otherwise
is to honor form over substance. See e.g., Cas/ellanos \'. Snyder. 2000 WL 1434590 (6th Cir.
2000) (charge alleging violation of code "102A" was sufticient notice of alleged aiding in
attempt to escapc charge).
Graham's claim that his security level score was miscalculated. ECr NO.1 at 8-9: ECF
NO.8 at 1. is conclusory and vague. He simply states that on September 9. 2014. his custody
level score was 10. and two months later when the Northeast Region granted Graham's
administrative appeal and ordercd FCI Loretto camp to change his custody score for program
participation and living skills from average to good. it should have been changed to a scorc of 8.
ECr NO.8 at I: ECF No. 8-2 at 8. Even assuming Graham's security level score was wrong. the
claim does not implicate a constitutionally protected interest. The error, which Graham does not
allege was intentional. has not deprived him of a protccted liberty interest. SeeSalldill\'. Caillier.
515 U.S. 472. 484 (1995) (liberty interest implicatcd where "atypical and significant hardship ...
in relation 10 the ordinary incidcnts of prison life" is established). Assignment to one prison
vcrsus another. access to programs. or particular housing assignments and other matters lhat
pertain to c1assilication and assignment of prisoners to particular prisons do not implicate due
process. See Moody \'. Daggell. 429 U.S. 78. 88 (1976). "[G]iven a valid conviction. the criminal
defendant has been constitutionally deprived of his liberty to the extcnt that the State may
confine him and subject him to the rules of its prison systcm so long as the conditions of
confinement do not otherwise violate the Constitution:'
Falla. 427 U.S. 215, 224
Graham's claim that he was tricked into waiving his request for a stair representative is
without any evidentiary support. Hc does not include cvidence to support the conclusory claim.
nor docs he ofter any objective proof lhat his waiver was anything other than voluntary. ECF No.
8 at I. This allegation does not support a cognizable claim.
Finally, with rcgard to the evidencc relied upon to find Graham guilty of committing the
rule violation, all that is requircd is that thc hearing officcr relied upon "some cvidence:' See
Hill, 472 U.S. at 455. In DHO Garcia's declaration under oath, he states that under Program
Statement 5270.09, hc is required to review video footage whcn evidcnce of a rule violation is
captured on video and he did so in this instance. ECl' No. 4-2 ~ 7. Garcia further explains that
inmates are not permitted to vicw video footage "because it would jeopardize the safe and
orderly operation of the institution for inmates to know the locations of the security camcras and
what each camera can and cannot see:' /d. Graham's assertions that it was somehow improper
for thc SIA officer to neglect mentioning a memorandum written by Officer Ilernandez does not
vitiate the evidence relied upon to arrive at a guilty tinding. See ECl' NO.8 at 1-2. The only
materia! t~lctat issue in the hearing before DHO Garcia was whethcr Graham was attempting to
fight with another inmate. The circumstances of how the tact of his violation of the rulc eamc to
be known are of little to no consequence and do not constitutc a violation of his duc process
Based on thc undisputed tacts before this Court, the Petition for Writ of Habeas Corpus
must bc dismisscd. A scparatc Ordcr tiJllows.
"'G/ z, V wq
GEORGE J. HAZEL
UNITED STATES DISTRICT JUDGE
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