Hodge v. Rivers

Filing 11

OPINION. Signed by Judge James P. Jones on 1/6/2021. (Opinion mailed to Pro Se Party via US Mail)(slt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JIMMY PRESLEY HODGE,
Petitioner,
v.
CHRISTOPHER RIVERS, WARDEN,
Respondent.

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Case No. 7:20CV00570
OPINION
By: James P. Jones
United States District Judge

Jimmy Presley Hodge, Pro Se Petitioner.
This Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 was filed
pro se by petitioner Jimmy Presley Hodge, a federal inmate.1 Hodge contends that
seventeen unrelated prison disciplinary proceedings over seven years at multiple but
unspecified prison facilities were procedurally defective and resulted in his loss of a
total of more than 700 hours of good conduct time. After review of the record, I
conclude that Hodge’s petition must be summarily dismissed.

1

Hodge initially filed the petition in the United States District Court for the
Northern District of Illinois. Hodge is now confined in the United States Penitentiary Lee
(“USP Lee”), located in this judicial district. For that reason, his petition was transferred
to this court. An inmate seeking § 2241 relief must file the petition in the district where he
is confined and name as the respondent his immediate custodian, i.e., the warden of his
prison. Kanai v. McHugh, 638 F.3d 251, 255 (4th Cir. 2011); see also Rumsfeld v. Padilla,
542 U.S. 426, 443–44 (2004). Therefore, I will order that the Warden of USP Lee be
substituted as the respondent in this action.

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I.
Chronologically, Hodge’s list of federal prison disciplinary convictions
begins with a charge for possessing a hazardous tool in August 2012. The most
recent disciplinary conviction he challenges concerns an October 2019 charge for
introduction of drugs or alcohol into the prison.

Hodge does not provide

documentation for each of the seventeen charges he challenges or the appeals he
pursued for each charge. He does not even indicate the Federal Bureau of Prisons
(“BOP”) facility where he was confined when each charge was served on him.
Repeatedly, he states that as a result of the challenged disciplinary proceedings, he
has lost a combined total of 723 days of earned good conduct time.
Hodge’s entire § 2241 petition consists of lists—lists of charges and penalties,
lists of the ways in which administrative remedies concerning charges may be
exhausted within the BOP, and lists of possible legal problems an inmate may
encounter in defending against such charges. He alleges in a conclusory, generalized
fashion that in some unspecified way or ways, related to one, or to some, or to all of
the seventeen charges, constitutional violations occurred: due process deprivations,
fraudulent concealment and misrepresentations, retaliation for filing grievances,
lack of impartiality by the disciplinary hearing officer (“DHO”), violations of BOP
policies and program statements, unspecified threats and intimidation, and fabricated
accusations. He alleges, without any particularized factual support, that a pattern of
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due process violations persisted: denial of prompt notice of a charge, delayed
investigation, failure to interview witnesses and to preserve and review video
footage, lack of a staff advisor or ineffective staff advising, omission of unspecified
material or exculpatory facts, failure to provide appropriate documentation, and
numerous other alleged procedural shortcomings. In addition to the loss of good
conduct time, Hodge claims that the same constitutional problems have adversely
affected his security and custody classifications and his central file in unspecified
ways that resulted in multiple prison transfers and segregated confinement
conditions, in violation of due process and in retaliation for filing grievances. Hodge
also alleges being denied administrative remedies to challenge his custodial
placement and being subjected to paper clothing, four-point or ambulatory restraints,
or deprived of privileges in violation of BOP policy.
Hodge’s petition states that he “never understood the nature of the disciplinary
proceedings, could not help in his own defense as he suffers from [unnamed, but]
severe mental illness and defect rendering him unable to appreciate the nature,
quality, or the wrongfulness of the prohibited acts charged against him.” Pet. 12,
ECF No. 1.2 The petition asserts that investigating officials and DHOs knew of his
mental illness, but they did not ensure that he received a mental health evaluation in

2

Hodge filed two identical § 2241 petitions, ECF Nos. 1 and 4. For the sake of
convenience, I will cite only to the first petition, ECF No. 1.
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connection with the disciplinary charges or provide mental health treatment, in
violation of numerous BOP policies. Hodge states that he has relied on other inmates
to assist him with most of his administrative remedy forms. Id. at 8. Despite
Hodge’s mental illness, the petition alleges, he was placed in “SMU units” at two
different prisons, where mentally ill inmates should not be housed, without due
process protections. As relief in this § 2241 action, Hodge seeks
Restoration of all good conduct time credits, reverse, undo all custody,
security, classification enhancements, management variables, point
increases caused by unconstitutional agency actions that adversely
affect petitioner[;] enter an injunction prohibiting non-compliance with
affected program statements as to the DHO’s actions and findings,
including prohibiting of any forms of retaliation, reprisals, threats,
intimidation, assaults, battery, harassment, humiliation, excessive
force, arbitrary and capricious impositions of disciplinary actions and
punishments and denial of mental health care. . . .
Id. at 18–19.
II.
Hodge is apparently seeking relief under § 2241(c)(3), which authorizes
judges of this court to grant habeas corpus relief to an inmate “in custody in violation
of the Constitution or laws or treaties of the United States.” Although not expressly
stated in the statute, however, a writ of habeas corpus is reserved for attacks on the
fact or duration of the petitioner’s confinement. See Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). Due process claims concerning Hodge’s disciplinary convictions

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might be cognizable as § 2241 claims,3 because they challenge the duration of his
confinement as impacted by the deprivation of his earned good conduct time. Id. at
500.
Conversely, challenges to living conditions or restrictions that the inmate
encounters while in prison fall well outside the core of habeas corpus subject matter
and must be raised, if at all, in a civil action for damages or injunctive relief under
federal or state law. See Nelson v. Campbell, 541 U.S. 637, 643 (2004). Similarly,
Hodge’s request for injunctive relief to prohibit such violations of his civil rights
related to prison living conditions does not pertain to the fact or length of his
confinement and is not properly pursued in a habeas action. Preiser, 411 U.S. at
500. Thus, to the extent that Hodge’s complaint raises claims concerning segregated
confinement, medical care, use of force, or other alleged living conditions or
harassment he has encountered in prison, he fails to state viable claims for habeas

3

In finding that Hodge’s due process claims regarding loss of good time are
properly presented in a § 2241 petition, I make no finding that his claims are ripe for
consideration by this court. “Although § 2241 does not contain a statutory exhaustion
requirement, courts require petitioners to exhaust their administrative remedies prior to
bringing a habeas corpus cause of action.” Meyers v. Streeval, No. 7:19-CV-00773, 2020
WL 6582829, at *2 (W.D. Va. Nov. 10, 2020) (citing McClung v. Shearin, 90 F. App’x
444, 445 (4th Cir. 2004) (unpublished)). Because I find that Hodge’s attempted § 2241
claims fail to provide sufficient factual development and violate rules of joinder, I will not
address whether or not he has satisfied the exhaustion requirement before bringing this
action.
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relief under § 2241. Therefore, I will summarily dismiss all such claims without
further discussion.4
Hodge also has no viable claim under § 2241 that prison officials have
violated their own policies and program statements in making classification and
transfer decisions about him. A violation of a program statement or other BOP
regulation does not implicate the Constitution, and thus, does not prove any ground
for relief under § 2241 for an inmate complaining of such violations. Shahan v.
Ormond, No. 3:18CV200-HEH, 2018 WL 6681210, at *5 (E.D. Va. Dec. 19, 2018),
aff’d, 778 F. App’x 217 (4th Cir. 2019) (unpublished) (citing Reeb v. Thomas, 636
F.3d 1224, 1227 (9th Cir. 2011) (“A habeas claim cannot be sustained based solely
upon the BOP’s purported violation of its own program statement because
noncompliance with a BOP program statement is not a violation of federal law.”);
Winters v. Hanson, No. 4:14 CV 2270, 2015 WL 4250014, at *2 (N.D. Ohio July

4

The Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 395–97 (1971), authorized a cause of action for
damages against a federal officer for violations of constitutional rights. It appears that
many of Hodge’s prison conditions claims in this action — alleging lengthy segregated
confinement conditions, inadequate medical or mental health treatment, or use of excessive
force, for example — are likely time barred. See Bloch v. Exec. Off. of the President, 164
F. Supp. 3d 841, 860 n.27 (E.D. Va. 2016) (noting that the statute of limitations for Bivens
actions is the personal injury statute of limitations for the forum in which the claim arises,
and in Virginia, that statutory limit is two years) (citing Va. Code Ann. § 8.01-243(A)).
Moreover, a Bivens claim must be brought, if at all, against individual federal officials, and
Hodge has not identified any individual(s) allegedly responsible for the violations he is
claiming. Therefore, I decline to construe any portion of Hodge’s pleading as a Bivens
complaint.
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13, 2015) (transfers and prison assignments are functions wholly within discretion
of BOP) (citing Olim v. Wakinekona 461 U.S. 238, 245 (1983); Reyes v. Holland,
No. 0:11–CV–00090–HRW, 2012 WL 639469, at *3–4 (E.D. Ky. Feb.27, 2012)
(failure to follow a BOP policy is not a constitutional violation). Therefore, I will
summarily dismiss without prejudice Hodge’s claims based on alleged violations of
BOP program statements or regulations as without merit under § 2241.
III.
As stated, a § 2241 petition is the appropriate vehicle by which a federal
inmate may pursue constitutional challenges to disciplinary proceedings that
inevitably affected the length of his confinement. The Due Process Clause of the
Fourteenth Amendment prohibits a state from depriving “any person of life, liberty,
or property without due process of law.” U.S. Const. amend. XIV, § 1. “To state a
procedural due process violation, a plaintiff must (1) identify a protected liberty or
property interest and (2) demonstrate deprivation of that interest without due process
of law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). When state law has
created the right to earn good time, and deprivation of earned good time is a sanction
authorized only in response to major misconduct, an inmate has a protected liberty
interest in his earned good time. Wolff v. McDonnell, 418 U.S. 539, 556–558 (1974).
On the other hand, “[p]rison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a criminal defendant does not apply.”
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Id. at 556. Thus, the inmate facing a prison disciplinary charge with earned good
time at stake enjoys these limited due process protections: “(1) advance written
notice of the disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the factfinder of the evidence
relied on and the reasons for the disciplinary action.” Superintendent, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563–67).
The decision maker should be sufficiently impartial to satisfy due process
protections against arbitrary rulings. Wolff, 418 U.S. at 571.
Due process protections also require that “some evidence supports the
decision” to discipline a prisoner by revoking good time credits. Hill, 472 U.S. at
455. The “some evidence” standard is satisfied if “there is any evidence in the record
that could support” the disciplinary decision. Id. at 455–56.
Under Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts, which may be applied to § 2241 cases under Rule 1(b), “[i]f it plainly
appears from the [face of a § 2241] petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” It is undisputed here that Hodge
had a protected liberty interest in his earned good conduct credits and was entitled
to the due process protections outlined in Wolff before those credits could be
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revoked. To survive summary dismissal for failure to state a claim, however, Hodge
must “allege facts sufficient to state all the elements of [his] claim.” Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). In so doing, the
pleading must meet a “plausibility” standard; a civil “claim has facial plausibility
when the [petitioner] pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.”

Id. at 678 (internal quotation marks, citations, and alterations

omitted).
Hodge’s petition fails to state any actionable habeas claim for lack of factual
support. As I noted earlier, his petition is comprised of lists of the proceedings he
challenges and lists of potential types of wrongdoing that might occur during such
proceedings. Hodge does not provide particularized facts connecting these possible
wrongs to any specific disciplinary infraction or proceeding. He fails to state any
factual support for the myriad of conclusory assertions in the petition: where did
each disciplinary proceeding occur, what witness or evidence did the hearing officer
exclude and why Hodge was prejudiced by the lack of that evidence, how did the
DHO show a lack of impartiality, what was the evidence presented by the hearing
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officer, and so on. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to state a claim, and the
court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. at 678 (internal quotation marks and citation omitted). Without any
factual matter to support Hodge’s claims regarding the challenged disciplinary
proceedings, I cannot find that his petition states any constitutional claim upon
which he is entitled to relief under § 2241. 5
Moreover, I do not find that justice requires me to allow Hodge to amend this
petition, because it violates well established rules of joinder of claims in a single
lawsuit. Rule 18(a) of the Federal Rules of Civil Procedure allows a plaintiff to join
as many claims “as it has against an opposing party.” Rule 20 allows the joinder of
claims against several defendants in one case only if the claims arose out of the same
transaction or occurrence, or a series thereof, and contain a question of fact or law
common to all the defendants. As I stated, Hodge’s petition as it stands does not
comply with these rules. His claims concern actions by multiple hearing officers

5

In conjunction with his claims alleging violations of BOP policies, Hodge refers
to the Accardi doctrine, which provides that when an agency fails to follow its own
procedures or regulations, that agency’s actions are generally invalid. See United States
ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). Even assuming that this court
may recognize Accardi claims related to prison disciplinary proceedings, such claims
require evidence of specific procedural violations in the case at hand, which Hodge has
simply not provided. Iqbal, 556 U.S. at 678.
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and concern unrelated events separated by months and even years at BOP prison
facilities around the country. If Hodge chooses to pursue one or more of his due
process claims in the future, I would advise him to limit each § 2241 petition to one
disciplinary proceeding or one set of proceedings arising from the same events or a
closely related series of events at one BOP facility. See Fed. R. Civ. P. 21 (“The
court may . . . sever any claim against a party.”); Cosgrove v. Rios, No. 7:08-CV109-KKC, 2008 WL 4410153, at *2 (E.D. Ky. Sept. 19, 2008) (“The power to sever
claims is committed to the discretion of the district courts.”) (citation omitted).
For the reasons stated, I will dismiss Hodge’s entire petition without prejudice
for failure to state a claim under § 2241. Such a dismissal leaves Hodge free to refile
his claims in new and separate § 2241 petitions, if he can correct the deficiencies
described in this Opinion.
A separate Final Order will be entered herewith.
DATED: January 6, 2021
/s/ JAMES P. JONES
United States District Judge

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