Hammoud v. Feather
Filing
27
Opinion and Order signed on 8/8/2014 by Judge Robert E. Jones.The Amended Petition for Writ of Habeas Corpus 12 is DENIED and Judgment be entered DISMISSING this case with prejudice. (sp)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
WISSAM HAMMOUD,
)
)
Petitioner,
3:
13-cv-01340-JO
)
)
v.
)
)
UNITED STATES OF AMERICA and
FCI SHERIDAN WARDEN MARION
FEATHER,
Respondent.
)
)
)
)
)
OPINION AND ORDER
Wissam Hammoud
Fed. Reg. No. 39876-018
Federal Correctional Institution
P.O. Box 1000
Talladega, AL 35160
Petitioner Pro Se
s. Amanda Marshall
United States Attorney
Natalie Wight
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER
JONES, District Judge.
Petitioner,
an inmate at FCI-Talladega,
brings this action
seeking a writ of habeas corpus pursuant to 28 U.S.C.
se.
§
2241 pro
Petitioner alleges his constitutional rights were violated
when the Disciplinary Hearings Officer
(DHO)
found him guilty of
assaulting a corrections officer without due process.
For the
reasons set forth below, his Amended Petition [12) should be DENIED
with prejudice.
PROCEDURAL BACKGROUND
As noted above, petitioner is currently incarcerated at FCITalladega, Alabama.
At the time he filed this action and the time
of the incident and subsequent disciplinary proceedings at issue,
he was housed at FCI-Sheridan, Oregon.
conviction resulted
in
the
loss
Petitioner's disciplinary
of good time
(suspended) in disciplinary segregation.
credit
and time
Petitioner is currently
serving a 258-month sentence for retaliating against a witness,
solicitation
violence,
of
murder,
possession
violation of parole.
of
use
a
of
a
firearm
firearm
by
a
during
convicted
a
crime
felon
of
and
His projected release date is December 18,
2022, via good conduct release.
FACTUAL BACKGROUND
On October 30,
2012,
an officer observed petitioner moving
the ''wrong way'' in the flow of inmate foot traffic and ordered him
to stop and return to medical.
2 - OPINION AND ORDER
At some point, petitioner walked
away from the officer and was again ordered to stop.
Eventually,
the officer directed petitioner to turn over his identification
According to the officer,
card.
petitioner ''pulled his ID card
from his coat pocket and forcedly slapped it into [the officer's]
left hand."
officer
Deel. of Daniel Cortez [21], Attachment 3, p. 17.
issued
an
incident
report
charging
petitioner
The
with
assaulting any person and refusing to obey and order.
On November 8, 2012, the Bureau of Prisons {BOP) delivered a
copy of the incident report to petitioner and advised him of his
Id., Attachment 3, pp. 6-7.
rights.
after
being
stopped
by
the
Petitioner maintained that
officer
he
asked
to
talk
to
a
lieutenant, and, not getting an answer, petitioner started to walk
toward the lieutenants office.
Petitioner stated that the officer
then began to yell at him to go back to medical.
that
he
admitted
On
forcibly
that
November
he
13,
slapped his
was
upset
2012,
the
ID
into
when
Unit
he
the
gave
Petitioner denied
officer's
it
Disciplinary
hand,
but
him.
Id.
Committee
{UDC)
to
considered petitioner's incident report and referred it to the DHO.
Petitioner again denied that he was forceful when he gave his ID to
the officer, but stated that he was emotional.
Id., Attachment 3,
p. 3.
On
hearing.
November
20,
2012,
the
Petitioner requested a
DHO
conducted
disciplinary
staff representative and Staff
Psychologist Dr. G. Paape appeared on his behalf.
3 - OPINION AND ORDER
a
Previously, on
November 13, 2012, staff presented petitioner with written notice
of his rights at his upcoming disciplinary hearing, including his
right to call witnesses and present documentary evidence in his
defense.
Petitioner signed a form "Notice of Discipline Hearing
Before the (DHO)" wherein he indicated that he did not wish to call
witnesses at his
upcoming hearing.
Id.,
Attachment
According to the DHO, petitioner made the following
3,
p.
10.
statement at
the hearing:
My history speaks for itself.
I've never had any
assaults in my record.
I'm scared because of staff.
I
just seen Dr. Paape and the psychiatrist and was
emotional. We had discussed several issues of my past.
They [sic] were other inmates moving around. I was being
harassed by that officer.
He asked me to stop which I
did. He told me to go back to medical. I asked to speak
with a Lieutenant and he yelled at me to go to medical.
I started walking toward the Lieutenant's Office, he
yelled at me to stop and give him my ID. I didn't think
I sl[a]pt it into his hand or did it forcefully.
Id., Attachment 3, pp. 1-2. 1
Ultimately, the DHO found petitioner committed the prohibited
act of assaulting any person in violation of Code 224.
The DHO
based his findings on the reporting officer's statement, memoranda
submitted
by
Lieutenant
Cape
and
Senior
Officer
Bell
(each
respectively asserting that he witnessed petitioner "aggressively
1
Notwithstanding petitioner's assertion in this proceeding
that a video was available at the time of his disciplinary hearing
that would have exonerated him on the assault charge, there is no
mention in the detailed DHO report of petitioner having ever
requested review of a video of the incident or to the fact that
numerous staff denied the existence of any such video footage when
petitioner asked them to obtain and preserve it.
4 - OPINION AND ORDER
slap his ID into Officer Mulrooney's hand" and "slap[] his card
into
officer mulrooneys
hand very
forcibly") ,
Heal th
Services
Clinical Encounter forms for petitioner, Staff Injury Assessment
and Follow-Up Form for Officer Mulrooney,
statements to the investigator,
to
21
the UDC,
days
good
and Petitioner's own
and the DHO.
The DHO
conduct
for
sanctioned
petitioner
loss
the
violation.
He also suspended 30 days of disciplinary segregation
pending 180 days of clear conduct.
DISCUSSION
To obtain relief under
§
2241, petitioner must establish that
''[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.''
instant
case
petitioner
is
28 U.S.C.
seeking
§
relief
224l(b) (3).
with
In the
respect
to
a
disciplinary proceeding that, in part, resulted in the loss of good
time
credit
while
incarcerated
at
FCI-Sheridan.
This
is
a
challenge to the legality of the manner in which his sentence is
being executed and is properly before the Court under 28 U.S.C.
§
I.
2241.
Procedural Due Process - Disciplinary Hearing and Proceedings
It is well settled that "prison disciplinary proceedings are
not part of a criminal prosecution and the full panoply of rights
due a defendant in such proceedings does not apply."
McDonnell, 418 U.S. 539, 556 (1974).
Wolff v.
In Wolff, the Supreme Court
set forth the following minimum procedural due process rights to be
5 - OPINION AND ORDER
afforded to a prisoner accused of misconduct in prison which may
result in the loss of good time credit:
before
an
impartial
(1) the right to appear
decision-making body;
notice of the disciplinary charges;
(3)
(2)
advance
written
an opportunity to call
witnesses and present documentary evidence in his defense when it
is consistent with institutional safety and correctional goals;
(4) assistance from an inmate representative if the charged inmate
is illiterate or complex issues are involved; and
(5)
a written
decision by the fact finder of the evidence relied upon and the
rationale behind the disciplinary action.
In
this
case,
petitioner maintains
Id. at 563-67.
that
prison
officials
denied him the right to present documentary evidence in his defense
at his disciplinary hearing, namely:
to present the videotape or
a report summarizing the videotape of the incident which petitioner
states would have proved he did not assault the officer.
According
to petitioner, "[w]hile in the SHU [he] asked the Captain, Warden,
Lt.
Wade
the
investigation
Lieutenant,
and
several
other
Lieutenants to review the video film in order to see the actual
incident, but all kept insisting that the[re] was NO cameras in the
area,
and NO film is available."
Amended Petition
[ 12]
at 2.
Petitioner contends that video footage of the incident was provided
to the F.B.I. as part of a potential prosecution.
Id.
He further
argues that because the OHO did not have the video or a report
summarizing the video before him, his written decision detailing
6 - OPINION AND ORDER
the evidence relied on to conclude petitioner committed the assault
was incomplete and also violated petitioner's right to due process.
While conceding that due process could require the OHO to
consider video evidence on petitioner's request, respondent denies
petitioner's assertion that he ever asked the OHO to review the
video and to take it or a summary report of it into consideration.
According to respondent, the record supports only the conclusion
that petitioner did not specifically request that the OHO consider
video evidence.
that
According to respondent,
petitioner did
not
"request
review
the OHO packet reveals
of video
surveillance
during the investigation of the incident report, during UDC review,
or during the disciplinary hearing."
Daniel Cortez,
Moreover, the presiding OHO,
specifically avers that petitioner was given the
opportunity to request witnesses and present documentary evidence
during his disciplinary hearing and declined to do so.
Moreover,
Cortez states that "[t]o the best of my knowledge, inmate Hammoud
did not request a review of video surveillance of the incident.''
Deel. of Daniel Cortez [21], p. 4.
The Court has carefully reviewed the record in this case.
Beyond petitioner's assertions in his Amended Petition, it can find
no
reference
to
his
having
made
a
request
that
officers,
investigators, witnesses and/or the OHO review video evidence of
7 - OPINION AND ORDER
the subject incident. 2
As such, the facts in Howard v. U.S. Bureau
of Prisons, 487 F.3d 808, 813-14 (10th Circuit 2007), a case relied
on by petitioner here, actually serves to underscore the reason he
cannot prevail on his claim that his disciplinary hearing violated
his right to procedural due process.
In Howard, the court noted
that,
[a]lthough the record does not provide conclusive proof
that Howard requested production of the tape at the DHO
hearing, it provides strong inferential support that he
did so.
(See Rec. Doc. 1 ex. G (Administrative Remedy
Response dated 11/01/02) (noting Howard's contention that
he was denied review of the videotape); Rec. Doc. 13 at
2 (finding, the district court below, that Howard did
request the tape of the hearing).)
Id.
at
814
(emphasis
added) .
In
contrast
here,
there
is
no
indication in the record, prior to his assertions in this federal
habeas corpus proceeding,
video
surveillance
of
that petitioner requested a review of
the
incident.
Despite
his
representation that he asked multiple staff members,
current
including
investigators, to recover and review a tape of the incident, and
that these individuals all denied the existence of any such tape,
the disciplinary hearing record is void of any mention of video
surveillance of the assault incident.
2
Given petitioner's current
According to petitioner, he asked Dr. Paape to review the
video and discuss it with staff before the hearing, but Dr. Paape
was not permitted to do so. Amended Petition (12] at 2. Dr. Paape
did not mention any such denial in his remarks to the DHO.
Moreover, petitioner indicated at the hearing that he was ready to
proceed and satisfied with Dr. Paape's assistance. Deel. of Daniel
Cortez (21], Attachment 3, p. 1.
8 - OPINION AND ORDER
assertion that he knew the video would affirmatively prove his
innocence on the assault charge, the Court would expect there to be
some
record of what
multiple parties,
he
maintains
were
repeated
requests
from
including Dr. Paape, his staff representative,
for the video surveillance.
petitioner cannot
Accordingly, the Court concludes that
establish that
he
sought
to
introduce
video
evidence at his DHO hearing such that his procedural due process
rights were violated by the DHO' s alleged refusal to allow and
consider this evidence in his resolution of the assault charge.
Moreover, respondent indicates that BOP staff did review and
preserve all available footage surrounding this incident in the
course of its use of
footage
force
investigation 3 ,
but
found no video
documenting the manner in which petitioner surrendered his
ID to the officer.
See Deel. of Damon Sayers (22], p. 3 (''On or
about October 30, 2012, the SIS Department conducted a search for
video surveillance of the metal shack where the use of force by
staff occurred.
Video footage of the metal shack was found and
preserved.
video
The
surveillance
shows
the
verbal
exchange
between Officer Mulrooney and inmate Hammoud inside the metal
shack.
However, inmate Hammoud walked out of the metal shack, and
out of view of the video cameras,
3
into the area where he was
Following the ID transfer, petitioner was immediately
placed against a window and cuffed.
He suffered a minor lip
abrasion during this use of force. His injury was photographed and
his subsequent medical assessment and the staff debrief of the use
of force occurrence were videotaped.
9 - OPINION AND ORDER
reported and witnessed to have slapped his ID card into Officer
Mulrooney's hand.").
Accordingly, the Court is satisfied that any
failure of the DHO to review video footage during the disciplinary
proceedings was harmless because the critical event pertaining to
the assault, i.e., the manner in which petitioner transferred his
ID
into
the
officer's
hand,
was
never
captured
by
video
surveillance.
II.
Substantive Due Process - Disciplinary Hearing and Proceedings
Once
followed,
the
aforementioned
Wolff
procedural
protections
are
the only function of the federal court is to review the
statement of evidence upon which the disciplinary committee relied
on in its findings to determine if the decision is supported by
"some evidence."
Superintendent v. Mass. Corr. Inst. v. Hill, 472
U.S. 445, 455 (1984) (''The requirements of due process are satisfied
if some evidence supports the decision by the prison disciplinary
board.") .
Petitioner faults the DHO for, among other things, failing to
turn over certain evidence for his staff representative's review,
for finding that staff had nothing to gain by issuing a
false
report, and for failing to review the video of the incident.
These
arguments
notwithstanding,
it
is
clear
that
the
eye
witness
accounts set out in Officer Mulrooney's written statement and Lt.
Cape and Senior Officer Bell's memoranda, constitute some evidence
supporting the DHO's finding that petitioner committed the alleged
10 - OPINION AND ORDER
assault.
in
Accordingly, petitioner cannot demonstrate that the DHO,
concluding
petitioner
committed
the
assault,
violated
his
substantive due process rights during his disciplinary proceedings.
CONCLUSION
Based on the foregoing,
Habeas Corpus (12]
the Amended Petition for Writ
of
is DENIED, and judgment be entered DISMISSING
this case with prejudice.
This case arises under 28 U.S.C.
State court detention.
§
2241, and does not attack
Accordingly, no ruling on a certificate of
appealability is required, and no recommendation thereon will be
offered.
DATED
this~
day of August, 2014.
ones
Uni e~tates District Judge
11 - OPINION AND ORDER
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