Braddy v. Fox
MEMORANDUM OPINION regarding petitioner's petition. Petitioner has not exhausted his administrative remedies and his petition is without merit.. Signed by Judge Thad Heartfield on 8/7/2014. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
THOMAS M. BRADDY, JR.
CIVIL ACTION NO. 1:11cv196
Thomas M. Braddy, Jr., an inmate confined within the Bureau of Prisons, proceeding pro
se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On February 7. 2010, while he was at the Satellite Prison Camp in Atlanta, Georgia,
petitioner was charged with possessing a hazardous tool–a cell phone, in Incident Report
1976156. The incident alleged that on February 7, the charging officer saw petitioner talking on a
silver cell phone while sitting on his bed.
On February 12, petitioner appeared before a Discplinary Hearing Officer (“DHO”) for a
disciplinary hearing. At the conclusion of the hearing, the DHO found petitioner guilty of the
offense with which he was charged. The following punishment was imposed: (a) forfeiture of 22
days of previously earned good time credits; (b) placement in disciplinary segregation for 45 days;
(c) loss of telephone and visitation privileges for 180 days and (d) a disciplinary transfer. The
DHO explained his reasoning as follows:
The DHO finds you committed the prohibited act of Possession of a Hazardous
Tool, Code 108.
You stated you were advised of your rights and you understood them. You were
made aware of your rights before the DHO. You did not ask for witnesses or a
staff representative to assist you in preparing a defense. You have been afforded
due process and have had ample time to prepare a defense prior to the Discipline
The reporting officer stated he saw you talking on a silver cell phone while sitting on
your assigned bed. At the time of the incident you admitted to having the cell phone.
During the investigation you also admitted and took ownership of the cell phone. In
addition, you admitted to making a mistake to the DHO during the hearing and admitted to the charge.
The DHO combined the weight of the reporting officer’s eyewitness account of the
incident, the physical evidence recovered, and your admission. The reporting officer
provided the phone and accessories as evidence and submitted the appropriate written
A cellular telephone is a threat to the security of a correctional facility as they allow
inmates to make unmonitored calls. Cellular telephones can be used to facilitate escapes, other crimes, and coordinate the introduction of contraband into correctional
Accordingly, the DHO finds that you committed the prohibited act of Possession of
a Hazardous Tool, Code 108.
The Response to the Petition
The respondent asserts the petition should be denied because petitioner has failed to
establish he was denied due process of law in connection with the disciplinary hearing. The
respondent state the petition should also be denied because petitioner failed to exhaust his
administrative remedies. In support of this argument, the respondent has submitted a declaration
from J. Reese-Colson, a supervisory attorney at the Federal Correctional Complex at Beaumont,
Texas. The declaration states, in part, as follows:
The Administrative Remedy records show [petitioner] filed an appeal of Incident
Report number 1976156 at the Regional Level only. This appeal was rejected, thus,
not processed. The filing was rejected for a variety of reasons to include: failure to
attach the Discipline Hearing Officer report [and] not submitting copies of the request
or appeal. There is no record to indicate [petitioner] exhausted his appeal of this
incident report through the [Bureau of Prison’s] administrative remedy program by
properly filing an administrative remedy at both the Regional and Central Office
levels. [Petitioner’s] appeal of Incident Report number 1987156 sustained against
him remains unexhausted ....
Exhaustion of 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 statue 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. Fuller v. Rich, 11
F.3d 61, 62 (5th Cir. 1994).
The Bureau of Prisons has a four-step administrative process for resolving complaints by
prisoners. Initially, a prisoner must attempt to informally resolve the complaint with staff. 28
C.F.R. § 542.13(a). If informal attempts are unsuccessful, the prisoner must submit a written
complaint to the warden on a prescribed form. 28 C.F.R. § 542.14. If the prisoner is not satisfied
with the warden’s response, he may appeal to the regional director. 28 C.F.R. 542.15. If still
unsatisfied, the prisoner may appeal to the Office of General Counsel. Id. To challenge the action
of a DHO, a prisoner proceeds directly to the third step, by filing an appeal with the regional
director. 28 C.F.R. § 542.14(d)(2).
The record reflects that while petitioner filed an appeal with the regional director, the
appeal was rejected for being in improper form. Prisoners are required to exhaust administrative
remedies in a procedurally correct manner. “Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course of its proceedings.” Woodford
v. Ngo, 548 U.S. 81, 90-91 (2006). Moreover, petitioner did not appeal the rejection of his
administrative appeal by the regional director to the Office of General Counsel. As a result,
petitioner has not exhausted his administrative remedies and his petition is subject to dismissal on
Merits of the Petition
Prison inmates who lose good conduct time credits as a result of prison disciplinary
convictions are entitled to the procedural due process protections set forth in Wolff v. McDonnell,
418 U.S. 539 (1974). See Murphy v. Collins, 26 F.3d 541 (5th Cir. 1994). As petitioner was
deprived of good conduct time credits as a result of the disciplinary conviction complained of, he
was entitled to: (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 reason for the
disciplinary action and (3) the opportunity to call witnesses and present documentary evidence in
his defense. Wolff, 418 U.S. at 563-66.
In addition, there must have been "some evidence" to support the petitioner's conviction.
Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445 (1983). The result
of a prison disciplinary proceeding will be overturned by a federal court "only where there is no
evidence whatsoever to support the decision of the prison officials." Reeves v. Pettcox, 19 F.3d
1060, 1062 (5th Cir. 1994).
"Ascertaining whether this standard is satisfied does not require an examination of the
entire record, independent assessment of the credibility of the witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56. "Federal
Courts will not review the sufficiency of the evidence at a disciplinary hearing; a finding of guilt
requires only the support of 'some facts' or 'any evidence at all.'" Gibbs v. King, 779 F.2d 1040,
1044 (5th Cir.), cert. denied, 476 U.S. 1117 (1986) (citation omitted).
Petitioner does not state he was denied any of the procedural protections provided by
Wolff. In addition, the charging officer’s report provided “some evidence” of petitioner’s guilt.
As a result, petitioner has not demonstrated he was denied due process of law in connection with
his disciplinary proceeding. His petition is therefore without merit.1
For the reasons set forth above, petitioner has not exhausted his administrative remedies
and his petition is without merit. An appropriate final judgment shall be entered denying the
SIGNED this the 7 day of August, 2014.
United States District Judge
Petitioner asserts he was improperly housed at the same prison unit as one of his co-defendants,
causing him to fear for his safety. He states he borrowed the cell phone from another inmate in order to inform his
family and his attorney of his concerns. However, petitioner does not state prison regulations recognize this type of
defense. Nor has he cited any authority for the proposition that the Constitution requires that this type of defense be
available to an inmate charged with a prison disciplinary offense. Moreover, it appears petitioner did not assert this
defense during his disciplinary hearing.
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