Curry v. Bureau of Prisons

Filing 3

Memorandum of Opinion and Order For the reasons set forth herein, Petitioner's Application to Proceed In Forma Pauperis (ECF No. 2 ) is granted, the Petition (ECF No. 1 ) is denied, and this action is dismissed pursuant to 28 U.S.C. § 1915A. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Benita Y. Pearson on 4/30/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIE CURRY,
Petitioner,
v.
BUREAU OF PRISONS,
Respondent.

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CASE NO. 4:14CV2124

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 2]

Pro Se Petitioner Willie Curry filed this Petition for a Writ of Mandamus against the
United States Bureau of Prisons (“BOP”). In the Petition (ECF No. 1), he asks the Court to
compel the BOP to remove a conduct violation from his prison record and restore 40 days of
good time credits. For the reasons stated below, the Petition is denied.
Petitioner also filed an Application to Proceed In Forma Pauperis (ECF No. 2). That
Application is granted.
I. Background
Petitioner indicates that on May 24, 2014, he sent a typed motion to the prosecutor in his
criminal case. The motion contained a document purporting to be a promissory note which
Petitioner claims called for his release. He admits that the document and the motion were
“‘clearly ridiculous’, ‘obviously frivolous,’ [and] ‘legally incorrect’. . . .” Nevertheless, the
prosecutor sent the motion and the purported promissory note to prison officials. Petitioner was
sent to the segregation unit, and charged with using the mail for a criminal purpose. He was told

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by prison authorities that his document violated 18 U.S.C. § 1521, which makes it a crime to
attempt to file a lien on a federal judge or prosecutor.1 Petitioner was found guilty of the
violation and was penalized with a loss of good time credits. ECF No. 1 at PageID #: 1. He
indicates he had only five weeks left on his sentence when he was charged with this violation.
ECF No. 1 at PageID #: 3. He states that unless the Court intervenes, he will be required to serve
additional time.
Petitioner disputes that his action violated 18 U.S.C. § 1521. First, he contends that his
“promissory note” was not intended as a lien on the prosecutor’s property, but rather as a lien on
himself. Second, he contends that the prosecutor knew the document was frivolous and legally
incorrect, so it could not violate the Court Security Improvement Act of 2007. ECF No. 1 at
PageID #: 1. Finally, he asserts that he cannot be charged with violating the statute because he
found this document on the internet and its author claimed it was guaranteed to work. He
contends he was duped and asserts “[t]here is something fundamentally illegitimate in punishing
someone for being taken advantage of.” ECF No. 1 at PageID #: 2.

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18 U.S.C. § 1521: Retaliating against a Federal judge or Federal law
enforcement officer by false claim or slander of title, was enacted in response to the
increasing vulnerability of federal employees as part of the Court Security Improvement
Act of 2007. It provides:
Whoever files, attempts to file, or conspires to file, in any public record or
in any private record which is generally available to the public, any false
lien or encumbrance against the real or personal property of an individual
described in section 1114, on account of the performance of official duties
by that individual, knowing or having reason to know that such lien or
encumbrance is false or contains any materially false, fictitious, or
fraudulent statement or representation, shall be fined under this title or
imprisoned for not more than 10 years, or both.
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II. Standard of Review
A District Court is expressly authorized to dismiss any civil action filed by a prisoner
seeking relief from a governmental entity, as soon as possible after docketing, if the Court
concludes that the pleading fails to state a claim upon which relief may be granted, or if the
prisoner seeks monetary relief from a Defendant who is immune from such relief. 28 U.S.C. §
1915A. See Onapolis v. Lamanna, 70 F.Supp.2d 809, 814 (N.D.Ohio 1999) (if a prisoner’s civil
rights Complaint fails to pass muster under screening process of Prison Litigation Reform Act
(“PLRA”), the Court should sua sponte dismiss the Complaint); Siller v. Dean, No. 99–5323,
2000 WL 145167, at *2 (6th Cir. Feb.1, 2000). The Court is required to read Petitioner’s pro se
pleading liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), accepting his allegations as
true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992).
When determining whether a petitioner has stated a claim upon which relief can be
granted, the Court must determine whether the complaint contains “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
petitioner’s obligation to provide the grounds for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at
555. Although a pleading need not contain detailed factual allegations, its “[f]actual allegations
must be enough to raise a right to relief above the speculative level . . . on the assumption that all
the allegations in the complaint are true.” Id. (citation omitted). The Court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.

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265, 286 (1986). The Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), further explains
the “plausibility” requirement, stating that “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 678. Furthermore, “[t]he plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). This determination is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
III. Law and Analysis
The district court is provided with mandamus jurisdiction in 28 U.S.C. § 1361 “to compel
an officer or employee of the United States or any agency thereof to perform a duty owed to the
plaintiff.” To obtain relief under § 1361, an individual must establish that he has a clear right to
relief and that a federal employee has a clear, nondiscretionary duty to act. See Heckler v.
Ringer, 466 U.S. 602, 616-17 (1984); In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995);
Ryon v. O’Neill, 894 F.2d 199, 205 (6th Cir. 1990). Petitioner must also demonstrate that no
other adequate remedy is available. In connection with the last requirement, it is important to
bear in mind that mandamus does not supersede other remedies, but rather becomes effective
when there is a want of such remedies. Admittedly the alternative remedy must be adequate, and
capable of affording full relief as to the very subject matter in question. Carter v. Seamans, 411
F.2d 767, 773 (5th Cir. 1969).

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Petitioner, however, has not demonstrated that he has a clear right to relief from the
conduct violation. The Court’s ability to review prison disciplinary proceedings is limited.
District courts have no authority to review a disciplinary committee’s resolution of factual
disputes, or to make a redetermination of an inmate’s innocence or guilt. Superintendent, Mass.
Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). The only question for the Court to
determine is whether the hearing complied with the basic requirements needed to satisfy due
process. The standard is not a difficult one to meet. To comply with the requirements of the Due
Process Clause, prison officials need only provide a prisoner facing loss of good time credits
with: (1) a written notice of the charges at least 24 hours prior to any hearing; (2) an opportunity
to call witnesses and present documentary evidence in his defense when permitting him to do so
will not be unduly hazardous to institutional safety or correctional goals; and (3) a written
statement by the factfinders as to the evidence relied on and the reasons for the disciplinary
action. Wolff v. McDonnell, 418 U.S. 539, 564-66 (1972). Prisoners do not have a due process
right of confrontation and cross-examination, or a right to counsel, in prison disciplinary
proceedings. Id. at 569-70.
Furthermore, due process requires only that disciplinary findings resulting in the loss of
good time credits be supported by “some evidence” in the record. Hill, 472 U.S. at 455. This
standard is satisfied when “there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Id. at 455-56. The Disciplinary Hearing Officer (“DHO”) is
not required to base findings on overwhelming or irrefutable proof of guilt. Even when the

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evidence is contradictory or partially exculpatory, a DHO may base a finding of guilt on only
“some evidence” that indicates the prisoner is guilty. Id. at 457.
In this case, Petitioner does not assert he was denied due process. Rather, he disputes the
result of the disciplinary hearing. Petitioner was not convicted of violating 18 U.S.C. § 1521; he
was found guilty of a prison conduct violation. The finding of guilt will therefore satisfy due
process if it is supported by some evidence. Petitioner admits he sent the promissory note to the
prosecutor and that the document was legally frivolous. He claims he was attempting to put a
lien on himself to secure his release and the document was misconstrued as an attempt to place a
lien on the prosecutor’s property. Petitioner also claims he should not have been punished
because the prosecutor also knew it was frivolous and because he got the document off of the
internet. The DHO did not find merit in any of these arguments. Petitioner’s disciplinary
conviction is supported by some evidence and the requirements of due process have been met.
The Court therefore has no authority to overturn the decision of the DHO. Petitioner has no clear
right to relief nor does the BOP have a nondiscretionary duty to restore Petitioner’s good time
credits.
IV. Conclusion
Based on the foregoing, Petitioner’s Application to Proceed In Forma Pauperis (ECF No.
2) is granted, the Petition (ECF No. 1) is denied, and this action is dismissed pursuant to 28

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U.S.C. § 1915A. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from
this decision could not be taken in good faith.2
The Clerk is directed to issue a copy of this Order by regular mail to Willie Curry,
#23938-047, c/o RRM Chicago, 200 W. Adams St, Rm 2915, Chicago, IL 60606.3

IT IS SO ORDERED.

April 30, 2015
Date

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/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

28 U.S.C. § 1915(a)(3) provides:

An appeal may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.
3

According to the Bureau of Prisons website (http://www.bop.gov/inmateloc/
(last visited April 30, 2015)), Plaintiff is currently under the supervision of the Chicago
Residential Reentry Management (RRM) field office and has a May 26, 2015 release
date.
Plaintiff has failed to provide the court with his current address. It is the party,
not the court, who bears the burden of apprising the court of any changes to his mailing
address. See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir. 2012) (citing Casimir v.
Sunrise Fin., Inc., 299 Fed.Appx. 591, 593 (7th Cir. 2008) (affirming district court’s
denial of Rule 60(b) motion when movants claimed due to house fire they did not receive
mail informing them of court’s entry of summary judgment); Soliman v. Johanns, 412
F.3d 920, 922 (8th Cir. 2005) (“[A] litigant who invokes the processes of the federal
courts is responsible for maintaining communication with the court during the pendency
of his lawsuit.”); Watsy v. Richards, No. 86-1856, 1987 WL 37151, at *1 (6th Cir. April
20, 1987) (affirming dismissal for failure to prosecute when appellant failed to provide
district court with “current address necessary to enable communication with him”)).
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