Ortega v. Willis
MEMORANDUM OPINION AND ORDER. Petition DENIED and civil cause is DISMISSED with Prejudice.. Signed by Judge David C Guaderrama. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TE)Str.0
EL PASO DIVISION
JAMES DWAYNE ORTEGA,
Reg. No. 07046-078,
.:T OF TEXAS
J.S. WILLIS, Warden,
MEMORANDUM OPINION AND ORDER
Petitioner James Dwayne Ortega, a prisoner at the La Tuna Federal Correctional
Institution in Anthony, Texas,' challenges a prison disciplinary action taken against him through
apro se petition for writ of habeas corpus under 28 U.S.C. § 2241. Ortega contends prison
officials violated his due process rights when they failed to timely provide a copy of the incident
report notifying him of the disciplinary action. Ortega seeks reinstatement of 41 days of
forfeited good time credit. After reviewing the record and for reasons discussed below, the
Court will, on its own motion, dismiss Ortega's petition because "it appears from the application
that the applicant ... is not entitled" to relief.2
According to records in cause number 1:1 6-CR-3 1 -RC- 1 in the United States District
Court for the Eastern District of Texas, on February 27, 2016, Ortega escaped from the Satellite
'Anthony is located in El Paso County, Texas, which is within the territorial boundary of the
Western District of Texas. 28 U.S.C. § 124(d)(3) (2012).
228 U.S.C. § 2243 (2012).
Federal Prison Camp in Beaumont,
On February 29, 2016, Ortega turned himself in to
prison officials at the Federal Correctional Institution, Seagoville, Texas. A grand jury returned
a one-count indictment charging Ortega with escape from custody, in violation
of 18 U.S.C.
Ortega pleaded guilty, pursuant to a plea agreement.5 The Court sentenced him to six
months' imprisonment to run consecutive to the term previously imposed in cause number 4:98-
CR-i 4-MAC-2 1 in the Eastern District of Texas.6 Ortega did not appeal.
Ortega returned to Bureau of Prisons' ("BOP") custody on October 21, 2016. He
received notice that the BOP would initiate disciplinary proceedings against him for the escape
through an "incident report" delivered to him on November 3, 2016.8 As a result of the
disciplinary action, Ortega lost 41 days of good time credit.9
Ortega now complains the BOP did not follow its regulations when it disciplined him.'°
He asserts "BOP policy states that an incident report should be delivered to an inmate within 24
See Factual Basis and Stipulation, May 23, 2016, ECF No. 14. "ECF No." refers to the
Electronic Case Filing number for documents docketed in United States v. Ortega, 1:1 6-CR-3 1RC-1 (E.D. Tex.). Where a discrepancy exists between page numbers on filed documents and
page numbers assigned by the ECF system, the Court will use the latter page numbers.
Indictment, Apr. 6, 2016, ECF No. 2.
Plea Agreement, May 23, 2016, ECF No. 15.
j, Oct. 4, 2016, ECF No. 23.
hours of the incident." Ortega maintains he received the incident report advising him of the
disciplinary action thirteen days after he returned to BOP
Notably, Ortega does not
claim he did not receive advance written notice of the charge against him, an opportunity to
present evidence in his defense, or a written statement by the hearing officer regarding the
reasons for the disciplinary action. Further, he does not claim the evidence was insufficient to
support the disciplinary decision.
A prisoner's challenge to a disciplinary action may fall within the scope of 28 U.S.C. §
2241.13 Relief is not available, however, unless the petitioner shows that prison authorities
deprived him of some right secured by the Constitution or laws of the United
"the Due Process Clause does not protect every change in the conditions of confinement having a
substantial adverse impact on the prisoner."5 A recognized liberty or property interest must be
' See Carmona v. US. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) ("[A]ppellant's
petition to expunge the Bureau's disciplinary sanctions from his record, including the loss of
good time credits, as a challenge to the execution of his sentence rather than the underlying
conviction, is properly brought via an application for a writ under § 2241.").
See Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) (explaining that "the writ of habeas
corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions
that violate fundamental fairness."); Orellana v. Kyle, 65 F.3d 29, 31(5th Cir. 1995) (" [Nleither
habeas nor civil rights relief can be had absent the allegation by a plaintiff that he or shehas been
deprived of some right secured to him or her by the United States Constitution or the laws of the
United States.") (quoting Hilliard v. Bd. of Pardons & Paroles, 759 F.2d 1190, 1192 (5th Cir.
Sandin v. Conner, 515 U.S. 472, 478 (1995).
at stake before a due process claim is
Accordingly, a petitioner is not entitled to
due process protections in a prison disciplinary hearing unless he is subjected to sanctions which
"impose atypical and significant hardships on the inmate in relation to the ordinary incidents
of prison life."7
Judicial decisions establish a federal prisoner has a liberty interest in his accumulated
good-time credit.'8 Thus, the "revocation of such credit must comply with minimal procedural
However, "[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in such proceedings does not
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court determined that, at a
minimum, a prisoner is entitled to (1) advance written notice of the disciplinary charges, (2) an
opportunity to present evidence in his defense, and (3) a written statement by the factfinder
regarding the evidence relied on and reasons for the disciplinary action.2' Additionally, there
must be "some facts" or a "modicum of evidence" which supports the disciplinary decision.22
Finally, a court's determination "whether this standard is satisfied does not require examination
of the entire record, independent assessment of the credibility of witnesses, or weighing of the
Bd. ofRegents v. Roth, 408 U.S. 564,
Sandin, 515 U.S. at 484.
Henson v. US. Bureau ofPrisons, 213 F.3d 897, 898 (5th Cir. 2000).
McDonnell, 418 U.S. 539, 556 (1974).
Superintendent, Mass. Corr. Inst.
Hill, 472 U.S. 445, 454 (1985) (citing WofJ 418 U.S. at
Id. at 454-5 5.
With these principles in mind, the Court will examine Ortega's claims.
Ortega asserts BOP personnel violated his due process rights when they did not comply
with the BOP regulation for disciplinary actions.24 Specifically, he claims prison officials did
not provide him with a copy of the charging
documentthe incident reportwithin 24 hours
after he returned to BOP custody.25
The applicable BOP regulation, found at 28 C.F.R.
541.5, provides a prisoner "will
ordinarily receive the incident report within 24 hours of staff becoming aware of [his]
involvement in the incident."26 Thus, the regulation does not establish a mandatory requirement
that a prisoner receive notification of a disciplinary action within 24 hours of an incident.
Moreover, even if it established a mandatory requirement, a federal agency's failure to comply
with its own regulations does not necessarily state a constitutional claim.27 The Court must look
to other sources to determine if BOP personnel violated Ortega's due process rights during the
Id. at 455; see also Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) ("[T]he court may act
only where arbitrary or capricious action is shown. ... This means the prison disciplinary
proceedings will be overturned only where there is no evidence whatsoever to support the
decision of prison officials.").
541.5(a) (emphasis added).
Cain, 864 F.2d 1235, 1251 (5th Cir. 1989) (failing to follow procedural
regulations "does not establish a violation of due process, because constitutional minima may
nevertheless have been met" (internal quotation and citation omitted)).
As the Court noted above, a federal prisoner has a liberty interests in his accumulated
Because Ortega lost 41 days of good time credit as the result of a
disciplinary action, the analysis approved by the Supreme Court in
the Court's review of his contested disciplinary proceeding. In
McDonnell, the Supreme
Court explained that while "a prisoner is not wholly stripped of constitutional protections when
he is imprisoned for crime," nevertheless "[p]rison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not
In order for a prison disciplinary proceeding to comport with the requirements of due
process, prison officials must afford a prisoner the following minimal procedural safeguards: (1)
adequate notice of the alleged violation; (2) an opportunity to present evidence, (3) written
findings in support of the ruling; and (4) "some evidence" supporting the ruling.30
Based upon the evidence supplied by Ortega in his petition, it appears that he was given
adequate, albeit untimely, notice of the alleged violation and disciplinary action. The written
notice informed him of the specific charge"escape, walk away from
him to prepare his defense.3' Further, Ortega does not assert the hearing officer denied him the
opportunity to present evidence on his own behalf or failed to provide written findings in support
of his ruling. Additionally, his guilty plea in cause number
1:1 6-CR-3 1 -RC- 1 in the Eastern
District of Texas provides "some evidence" to support the hearing officer's ruling. Finally,
Ortega has not alleged prejudice resulting from the untimely notice. His failure to allege
Henson, 213 F.3d at 898.
Superintendent, Mass. Corr. Inst., 472 U.S. at 455-56.
301d at454; Wolff
prejudice defeats his due process
Indeed, while the disciplinary proceeding did not
comply with the timeliness requirements in 28 CFR
54 1.5(a), it did meet the constitutional
minima required by controlling Supreme Court precedent.
CONCLUSION AND ORDERS
After examining the Ortega's petition, the Court concludes that Ortega has not alleged
that prison authorities deprived him of some right secured by the Constitution or laws of the
United States. Thus, the Court further concludes that he is not entitled to
Accordingly, the Court enters the following orders:
IT IS ORDERED that Ortega's petition is DENIED and his civil cause is DISMISSED
IT IS FURTHER ORDERED that all pending motions, if any, are DENIED as moot.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
day of A
DAVIS C. GUAIIERRAMA
UNITED STATES DISTRICT JUDGE
Hallmarkv. Johnson, 118 F.3d 1073, 1080 (5th Cir.1997); see also Banuelos v. McFarland, 41
F.3d 232, 234-35 (5th Cir.1995) (denying prisoner's due process claim that a disciplinary hearing
officer failed to call a defense witnesses where the testimony of the witnesses would not have
changed the outcome of the hearing and thus the prisoner did not demonstrate prejudice).
28 U.S.C. § 2243.
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