Porter v. Schult

Filing 9

MEMORANDUM-DECISION AND ORDER directing the Clerk of the Court to amend the caption of the action as stated; denying and dismissing the 1 Petition for Writ of Habeas Corpus filed by Emjadia Porter. Signed by Senior Judge Thomas J. McAvoy on 6/6/2011. (amt) [Pet. served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
EMJADIA PORTER,
Petitioner,
v.

9:10-CV-0958
(TJM)

RUSSELL PERDUE,1
Respondent.
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
APPEARANCES:

OF COUNSEL:

FOR THE PETITIONER:
EMJADIA PORTER
Inmate No. 04497-084
Petitioner, pro se
F.C.I. Allenwood
Inmate Mail/Parcels
P.O. BOX 1000
White Deer, PA 17887
FOR THE RESPONDENT:
RICHARD S. HARTUNIAN, ESQ.
UNITED STATES ATTORNEY
P.O. Box 7198
100 South Clinton Street
Syracuse, NY 13261-7198

CHARLES E. ROBERTS, ESQ.
Assistant United States Attorney

THOMAS J. MCAVOY
Senior, United States District Judge
MEMORANDUM-DECISION AND ORDER

1

Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Russell Perdue, who
was appointed as warden of the Federal Correctional Institution in Ray Brook, New York in
February, 2011, it is automatically substituted as the respondent in this action and the caption of
this matter is amended accordingly.

I.

BACKGROUND
A.

Related Administrative Proceedings

According to the administrative record supplied to this Court, on April 25, 2008, petitioner,
pro se Emjadia Porter, who at the time was incarcerated at the Federal Correctional Institution
("F.C.I.") in Fort Dix, New Jersey, received an incident report prepared by an officer at that
facility. That report alleged that on April 12, 2008, Porter and another prisoner at that facility,
inmate Kelly, "exchanged words ... over a television program." See Incident Report (4/25/08)
(Dkt. No. 6-2 at p. 5) ("Incident Report"). Other inmates who were in the room where the
television was located then "observed [Porter] picking inmate Kelly up and slamming him onto the
floor." Id. As a result of that incident, inmate Kelly "sustained a superficial laceration above his
left eye from his face striking the floor, head first." Id. Porter was "medically assessed" at the
time and did not appear to have "sustained any visible injuries" as a result of the incident. Id.
On April 29, 2008, Porter received a copy of the Incident Report, as well as a "Notice of
Discipline Hearing" form. Dkt. No. 6-2 at p. 7 ("Discipline Hearing Form"). On that form, Porter
indicated that he did not wish to have a member of the Fort Dix staff assist him in preparing
Porter's defense to the charges contained in the Incident Report, however Porter noted on the
Discipline Hearing Form that he wished to call inmate Kelly – the individual whom Porter was
accused of assaulting – as a witness at the disciplinary hearing. Id. Porter indicated on that form
that inmate Kelly would testify that Porter "had nothing to do with [Kelly's] injuries." Id.
According to the testimony provided to this Court by Anthony C. Boyce, the Hearing
Officer who presided over the disciplinary hearing that was conducted as a result of the Incident
Report, "institution staff contacted inmate Kelly and asked him to provide a statement regarding
2

the alleged assault. Inmate Kelly stated he did not want to discuss the incident and that he was not
going to talk." See Declaration of Anthony C. Boyce (11/10/10) (Dkt. No. 6-2 at p. 1) ("Boyce
Decl.") at ¶ 7. As a result, inmate Kelly was not called as a witness at Porter's disciplinary
hearing.2
Porter's disciplinary hearing relating to the Incident Report took place on May 5, 2008. See
Dkt. No. 6-2 at pp. 24-27 ("Hearing Officer Report"). Following that proceeding, Hearing Officer
Boyce summarized the basis for his finding that Porter was guilty of the conduct charged in the
Incident Report. Specifically, the Hearing Officer noted that, after Porter had been read the
allegations contained in the Incident Report, he claimed that he "had no altercation with Kelly and
[Porter] was not in the t.v. room." Hearing Officer Report at p. 1. Porter further noted that he had
not had been the subject of any incident reports for a number of years. Id.3 However, Hearing
Officer Boyce credited the testimony of the employee who investigated the incident over the
testimony provided by Porter at the hearing, in part because Porter had "everything to gain and
nothing to lose" in denying that he assaulted inmate Kelly. Hearing Officer Report at p. 2. The
Hearing Officer thereafter concluded that "the greater weight of evidence" demonstrated that
Porter was guilty of "a violation of code 224, minor assault on another inmate." Id. at p. 3.4 He

2

As is discussed more fully post at p. 10, the Hearing Officer cited other reasons for his
decision to refrain from calling inmate Kelly as a witness at Porter's disciplinary hearing. See
Boyce Decl. at ¶¶ 7-9.
3

Hearing Officer Boyce acknowledged in his Report that Porter wished to call inmate
Kelly as a witness, however the Hearing Officer noted that such individual would not be called as
a witness because Kelly "was the victim of the assault and [did] not want to testify." Hearing
Officer Report at p. 2.
4

That evidence is discussed by this Court post at pp. 11-12.
3

then imposed the following sanctions on Porter:
Disciplinary Segregation: 30 Days
Disallow Good Conduct Time: 27 Days
Loss of Privilege (COMM): 60 days
Loss of Privilege (PHONE): 60 Days
Loss of Privilege (VISIT): 60 Days
Id.
Porter thereafter unsuccessfully pursued administrative challenges relating to the Hearing
Officer's determination. See, e.g., Response in Opposition to Petition (Dkt. No. 6) at p. 3
(respondent discussing the administrative proceedings pursued by Porter challenging the finding of
the Hearing Officer).
B.

This Action

Porter commenced the present action pursuant to 28 U.S.C. § 2241 on August 9, 2010. See
Dkt. No. 1 ("Petition"). In that pleading, Porter claims that his Due Process rights were violated at
the subject disciplinary hearing because: i) he was not notified about inmate Kelly's inability to
testify at the disciplinary hearing until after that proceeding was concluded; ii) Lieutenant C.
Lewars provided false information to the hearing officer regarding statements made by Porter to
the Lieutenant; and iii) inmate Kelly was not called as a witness to testify on Porter's behalf, and
because "the adjudication of guilt rested on a lie." Id. at pp. 3-4. By this action, Porter requests
that this Court restore the twenty-seven (27) days of good time credit that were forfeited by Porter
as a sanction following the Hearing Officer's conclusion that Porter assaulted inmate Kelly. Id. at
p. 4.
On December 6, 2010, the Office of the United States Attorney for the Northern District of
New York, acting on respondent's behalf, filed a response in opposition to Porter's petition. See
4

Dkt. No. 6. Along with that response, the respondent provided this Court with documents related
to the administrative proceeding challenged herein, as well as the declaration completed by
Hearing Officer Boyce discussed above. See Attachments to Dkt. No. 6.
On December 16, 2010, Porter filed a "Traverse" in further support of his habeas
application. See Dkt. No. 7 ("Traverse").
This matter is currently before this Court for disposition.
II.

DISCUSSION
A.

Appropriate Standard of Review

"Prison disciplinary proceedings are not part of a criminal prosecution, [and thus] the full
panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418
U.S. 539, 556 (1974). For disciplinary proceedings to comport with the Due Process requirements
of the United States Constitution, the inmate must be: (1) afforded 24 hour advance notice of the
charges contained in the incident report; (2) allowed the opportunity to appear at the related
disciplinary hearing, call witnesses and present rebuttal evidence at such proceeding; and (3)
provided a written statement as to the evidence relied on and reasons for the administrative
decision. See Wolff, 418 U.S. at 563-72; Rodriguez v. Selsky, No. 07-CV-0432, 2011 WL
1086001, at *7 (N.D.N.Y. Jan. 25, 2011) (Peebles, M.J.) (Report-Recommendation), adopted,
Rodriguez v. Selsky, No. 07-CV-0432, 2011 WL 830639 (N.D.N.Y. Mar. 3, 2011) (Kahn, J.).
Where a disciplinary hearing was conducted in a manner consistent with the Due Process
requirements of the United States Constitution, a reviewing court should uphold the outcome of
the disciplinary proceeding so long as “the findings of the prison disciplinary board are supported
by some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985) (rejecting due
5

process challenge to disciplinary hearing which revoked good time credits because the
determination of misconduct was supported by “some evidence”). "This standard is met if there
was some evidence from which the conclusion of the administrative tribunal could be deduced ...
and does not require the reviewing court to engage in examination of the entire record,
independent assessment of the credibility of witnesses, or weighing of the evidence." Hill, 472
U.S. at 455 (internal quotation and citation omitted). As the Second Circuit explained in Sira v.
Morton, 380 F.3d 57 (2d Cir. 2004), the Hill standard "is extremely tolerant" and is met where
there is reliable evidence in the record that supports the administrative decision. Id. at 69 (citing
Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)); see also Vaughn v. Nichols, No.
9:02-CV-1512, 2010 WL 681409, at *6 (N.D.N.Y. Feb. 24, 2010) (Strom, J., sitting by
designation) (citations omitted).
B.

Consideration of Petitioner's Claims

Porter initially objects to the fact that he was not informed of inmate Kelly's refusal to
testify until after the disciplinary hearing was completed. See Petition at p. 3; Traverse at p. 2. He
asserts that had he been made aware of that fact at an earlier time, he would have "immediately
moved for a postponement, sought out staff representation, and possibly called additional
witnesses." Petition at p. 3. Significantly, however, Porter has not discussed, in either his Petition
or Traverse, what additional evidence he would have presented in his defense to the assault charge
had he been afforded an adjournment of the proceeding or the assistance of a staff member in
preparing his defense to the charge.5 Nor has he provided this Court with the names of any

5

As noted ante, petitioner specifically indicated on the Discipline Hearing Form that he
did not wish to have a staff representative assist him. See Discipline Hearing Form at p. 1.
6

individuals whom he may have called as additional witnesses had he been aware of inmate Kelly's
refusal to testify at an earlier time, or the substance of the testimony of those potential "additional
witnesses." See Petition; Traverse. Instead, Porter appears to request that this Court speculate
that, had he been advised of inmate Kelly's unavailability at an earlier time, Porter would have: i)
asked for and obtained an adjournment of the proceedings; ii) requested staff assistance to prepare
Porter's defense to the charge; and iii) interviewed potential witnesses whom he may have
subsequently called at the disciplinary hearing to provide unspecified, exculpatory testimony.
Petitioner further invites this Court to speculate that had he engaged in the foregoing conduct, he
may have obtained a favorable ruling from the Hearing Officer regarding the assault charge.
Unfortunately for petitioner:
courts cannot grant habeas relief based upon unsubstantiated
conclusions, opinions or speculation. Wood v. Bartholomew, 516
U.S. 1, 8 (1995) (federal courts should not grant “habeas relief on
the basis of little more than speculation with slight support”); see
Osinoiki v. Riley, CV-90-2097, 1990 WL 152540, at *2-3 (E.D.N.Y.
Sept. 28, 1990) (conclusory statements based on speculation “are
inadequate to satisfy petitioner's burden”) (citing Machibroda v.
United States, 368 U.S. 487, 495 (1962) and Dory v. Commissioner
of Correction, 865 F.2d 44, 45 (2d Cir.1989) (per curiam)) (other
citations omitted)., No. 02-CV-0695, Dkt. No. 35 (N.D.N.Y. Dec. 7,
2005) (Hurd, D.J.); Franza v. Stinson, 58 F.Supp.2d 124, 154
(S.D.N.Y. 1999) (rejecting habeas claim alleging the withholding of
Brady material as speculative, conclusory and unsupported).
Gaffney v. Conway, No. 9:08-CV-0302, 2009 WL 1706910, at *10 (N.D.N.Y. June 17, 2009)
(Kahn, J.). Petitioner has failed to establish that his ability to prepare or present his defense to the
assault charge was adversely affected by the fact that he did not receive notice of inmate Kelly's
refusal to testify on Porter's behalf until the conclusion of the disciplinary hearing. Nor has he
articulated, in any meaningful way, the exculpatory evidence he was purportedly prevented from
7

obtaining and/or presenting at the disciplinary hearing because he did not receive notice of inmate
Kelly's refusal to testify until after that hearing was concluded.6 He is therefore not entitled to
habeas relief on this theory.
Porter next argues that the Hearing Officer's determination of misconduct was wrongfully
based on the fact that Lieutenant Lewars "lie[d]" when he advised the Hearing Officer that Porter
admitted to being in the television room on the day of the assault. See Petition at pp. 3-4.
Petitioner claims that he "has always denied being in the T.V. room even to the investigating office
[sic] Lewars." Id. at p. 4. However, except for Porter's own self-serving statement that Lieutenant
Lewars lied when he informed Hearing Officer Boyce that Porter admitted to being in the
television room on the day of the incident, see Petition at pp. 3-4,7 there is no evidence which
suggests – much less establishes – that the information Lieutenant Lewars provided to the Hearing
Officer was untrue in any way.
The petitioner bears the burden of proving in his habeas petition that his constitutional
rights were violated. See Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997) (citations
omitted); Rosario v. Ercole, 582 F.Supp.2d 541, 550 (S.D.N.Y. 2008) (citation omitted). Porter's
failure to provide objective evidence which establishes his claim that Lieutenant Lewars provided
the Hearing Officer with false information concerning petitioner's whereabouts on the day of the
assault represents a failure on Porter to meet his burden of proof as to this aspect of his petition.

6

Porter has not claimed in this action that any employee of F.C.I. Fort Dix wrongfully
informed petitioner that inmate Kelly would be testifying on Porter's behalf at the disciplinary
hearing.
7

Petitioner declares that the statements made in his petition "are true and correct to the
best of [his] recollection." See Petition at p. 4.
8

See Toland v. Walsh, No. 04-CV-0773, 2008 WL 65583, at *14 (N.D.N.Y. Jan. 4, 2008) (Sharpe,
D.J.); Gary v. Conway, No. 03-CV-0480, 2006 WL 3290149, at *15 (N.D.N.Y. Nov. 13, 2006)
(Kahn, J.); see, e.g., Brown v. Lee, No. 9:10–CV–0311, 2011 WL 1135940, at *10 (N.D.N.Y. Mar.
25, 2011) (Mordue, C.J.) (petitioner failed to prove existence of exculpatory evidence where sole
basis for claim that such evidence existed was self-serving statement of the petitioner).
Porter also contends that the Hearing Officer wrongfully failed to call inmate Kelly as a
witness at the subject disciplinary hearing. See Petition at pp. 3-4; Traverse at p. 1. Petitioner
further claims that Hearing Officer Boyce's statement that inmate Kelly did not wish to testify on
behalf of Porter is false. Specifically, Porter claims that subsequent to the disciplinary hearing, he
had a discussion with inmate Kelly, who informed Porter that Kelly was "willing to be a witness
on [Porter's] behalf" at the disciplinary hearing, but that Lieutenant Lewars "came by several times
trying to extract statements from [Kelly] against Petitioner." Petition at ¶ 7.
In his declaration, Hearing Officer Boyce testified that inmate Kelly was interviewed prior
to the disciplinary hearing and declared that he "did not want to discuss the incident and ... he was
not going to talk." Boyce Decl. at ¶ 7. Although petitioner now claims that the Hearing Officer's
testimony in his declaration that inmate Kelly was unwilling to testify for Porter is untrue, see
Petition at ¶ 7, significant by its omission in the submissions filed by petitioner herein is any
evidence presented by Porter which supports his assertion that inmate Kelly was, in fact, willing to
provide exculpatory testimony on behalf of Porter. Specifically, there is no affidavit, letter or
other document in the record signed by inmate Kelly that supports Porter's assertion regarding
inmate Kelly's purported availability to testify. Porter has therefore failed to meet his burden of
proving that the testimony contained in Hearing Officer Boyce's declaration concerning this issue
9

is false.
Additionally, Hearing Officer Boyce testified that, based upon his experience as a
Disciplinary Hearing Officer with the Bureau of Prisons, he is aware that inmates can be
intimidated into providing exculpatory testimony where the victim of an assault is asked to testify
on behalf of the alleged assailant. Boyce Decl. at ¶ 8. The hearing officer also noted that inmates
who are called to testify at a hearing may also be viewed by the inmate population as a "snitch,"
thereby compromising that inmate's safety. Id.
The Second Circuit has observed that prison officials are given "substantial deference" in
the execution of policies relating to their institutions. See Jolly v. Coughlin, 76 F.3d 468, 476 (2d
Cir.1996). In conjunction with the present habeas application, the administrative record supplied
to this Court, together with Hearing Officer Boyce's declaration, have been reviewed. That review
has satisfied this Court that the failure of Hearing Officer Boyce to call inmate Kelly as a witness
at the related disciplinary hearing was entirely justified and reasonable, and in no way suggestive
of any violation of Porter's constitutional rights. Petitioner is therefore not entitled to habeas relief
on this theory.
In sum, the record establishes that Porter was afforded more than twenty-four hours notice
of the charge brought against him in the Incident Report, and he was allowed the opportunity to
appear at the disciplinary hearing, call witnesses and present rebuttal evidence.8 Additionally,
Hearing Officer Boyce provided a written statement concerning his findings, which Report
included specific references to the evidence upon which he relied in arriving at his determination
8

For the reasons discussed more fully ante, Porter has not established that his Due
Process or other constitutional rights were violated because the individual whom Porter requested
as a witness at his disciplinary hearing was not called as a witness.
10

and the reasons upon which he based his finding that Porter was guilty of the assault. This Court
therefore concludes that the disciplinary hearing about which Porter now complains was conducted
in a manner that was entirely consistent with the Due Process requirements of the United States
Constitution. See Wolff, 418 U.S. at 563-72; Rodriguez, 2011 WL 1086001, at*7. Petitioner's
claims challenging the propriety of that proceeding are therefore rejected as being without
substance.
Since this Court has concluded that petitioner's Due Process rights were not violated with
respect to the events leading up to the disciplinary hearing, as well as the manner in which such
hearing was conducted, this Court next considers whether some evidence supported the Hearing
Officer's determination that Porter assaulted inmate Kelly.
In his Report, Hearing Officer Boyce noted that he considered the following evidence in
arriving at his determination that Porter was guilty of the assault: i) Porter's statements in his
defense to the charge; ii) the contents of the Incident Report and the related investigation; iii)
photographs taken of inmates Kelly and Porter soon after the incident; iv) the medical assessment
that had been performed on both of those individuals around that time; and v) a memorandum
dated April 25, 2008 that was submitted to the Hearing Officer by Lieutenant Lewars. See Hearing
Officer Report at pp. 1-2. Hearing Officer Boyce then opined that the following established
Porter's guilt of the charge: i) the evidence established that Porter was in the television room of
F.C.I. Fort Dix on April 12, 2008 at the time of the incident; ii) two witness who were present in
the room at the time of the assault corroborated the charge that Porter had assaulted Kelly; and iii)
Porter admitted to Lieutenant Lewars that Porter was in the television room on the day of the
incident, although he claimed that he was not in that room at the same time as inmate Kelly. Id. at
11

pp. 2-3.9
Since substantial evidence in the record supported the Hearing Officer's determination that
Porter was guilty of the conduct alleged in the Incident Report, his habeas claim challenging the
propriety of that determination must be denied. Hill, 472 U.S. at 454-55; Sira, 380 F.3d at 69;
Vaughn, 2010 WL 681409, at *6.
WHEREFORE, after having reviewed the record supplied to this Court, the documents
submitted by the parties in conjunction with this action, the applicable law, and for the reasons
discussed herein, it is hereby
ORDERED, that the Clerk amend the caption of this action so as to reflect the fact that the
respondent herein, the Warden of F.C.I. Ray Brook, is Russell Perdue, and it is further
ORDERED, that Porter's habeas petition (Dkt. No. 1) is DENIED and DISMISSED, and
it is further
ORDERED, that the Clerk of Court serve a copy of this Memorandum-Decision and Order
upon the parties to this action, and it is further
ORDERED, that any records that were not filed in this action be returned directly to the
United States Attorney at the conclusion of these proceedings (including any appeal of this
Memorandum-Decision and Order filed by any party).
IT IS SO ORDERED.
Dated:June 6, 2011

9

Hearing Officer Boyce noted that Porter's comments to Lieutenant Lewars regarding
Porter's presence in the television room "contradict[ed] the statement" he had previously made
regarding where he was at the time of the alleged assault. See Hearing Officer Report at p. 3.
12

13