United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
RAYMOND P. MOORE, District Judge.
The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 1. On March 11, 2013, the Court entered an order that directed Respondent to show cause why the Application should not be granted. Respondent filed an Answer, ECF No. 22, and Applicant filed a Reply, ECF No. 27.
The Court must construe the papers filed by Applicant liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. After reviewing the pertinent portions of the record in this case, including the Application, Answer, and Reply, the Court concludes that the action should be dismissed.
Applicant is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"). He currently is incarcerated at the United States Penitentiary in Florence, Colorado. Applicant is challenging the validity of a prison disciplinary conviction in Incident Report No. 2076801 that resulted in a loss of good time credits and other sanctions.
The offense that precipitated the disciplinary charges in question occurred on October 10, 2010, while Applicant was incarcerated at FCI Talladega. Applicant initially was charged with the disciplinary charges of (1) Threatening (Code 203); (2) Tampering with a Lock Device (Code 208); and (3) Assault Without Serious Injury (Code224). Answer, ECF No. 22-1, George Declaration at 3 and Attach. 3 at 24. The disciplinary hearing was held on December 22, 2010, and Applicant was found to have committed the acts. Id. Applicant appealed the results and the incident report was returned to the DHO (Disciplinary Hearing Officer) for reconsideration based on a procedural error. Id., Declaration at 3. On December 15, 2011, a second disciplinary hearing was held, Applicant was found guilty of all offenses and was sanctioned with the disallowance of eighty-one days of good conduct time, among other sanctions.
At the second disciplinary hearing, DHO Jeffrey George found as follows:
Your due process rights were reviewed by the DHO. You received a copy of the incident report and submitted a written witness list for your staff representative and a written statement. The Notice form indicates you wanted a Warden appointed staff representative who appeared at the hearing and that you would provide a list of inmate witness to your staff representative. You had received a copy of the incident report and understood your rights. These witnesses gave statements to your staff representative as they were incarcerated at USP Florence at the time of the hearing. Staff witness testimony was obtained as requested. Incident report was reheard per Administrative Remedy 633622-R. Incident occurred at FCI Talladega.
On 10-4-10 at 8:00 pm you had your arm through your food slot and told the reporting staff member to come put your arm back in the slot. The lieutenant approached your cell and you proceeded to throw an unknown substance which hit the lieutenant in the left side of his face, eye, and upper torso. The lieutenant tried to close your food slot but discovered you had put toilet paper in the bolt recess which had to be removed before the slot could be closed. You then stated, "Why don't you come in here so I can stab your bitch ass. I know you think I am crazy you mother fucker haw, haw, haw."
Your written statement was reviewed. You deny the charges for this incident saying they are false and fabricated in retaliation for you repeatedly reporting the staff member for misconduct. You discuss an incident in 2009 and another in 2010 in which you make allegations of staff misconduct. You allege the reporting staff member assaulted you at 8:00 pm on the date of the incident and did not document it. The next shift executive staff were contacted who ordered a Physician's Assistant to drive from home to examine you. X-RAYS were ordered, Tylenol was prescribed, and you needed a sling. Incident referred to FBI and you formally reported the incident. Then next day the staff member learned he was under investigation so he justified his actions by writing this fabricated incident report and he harassed you the entire shift. He took 20 hours to write his report and did not follow policy by reporting a use of force. The investigating lieutenant viewed the video tape. The video did not show me throwing anything or blocking a food slot. He made opinions about the reporting staff member's movements. Four eyewitnesses refuted the lieutenant's version of the Incident. Video, witnesses, and documentary evidence attacks credibility of the reporting officer. Response: Staff are aware of your misconduct allegations. Staff ordinarily write incident reports within 24 hours of the incident or becoming aware an incident occurred. The investigating lieutenant did review video. He documents the review revealed the following: The reporting staff member approached your cell and appeared to confiscate a "fishing line" you were attempting to pull through the slot. The reporting staff member moved quickly as if we were trying to avoid being struck and kicked the food slot in an attempt to regain control of the slot. The staff member did draw a baton but did not swing or strike with it. You asked for four witnesses during the investigation: inmate Hill/Lieutenant McKnight call Pinson a faggot and struck Pinson twice with a baton. McKnight kicked the food slot with his "Big ass boot." Inmate Mouzon/McKnight called Pinson a motherfucker and started chopping with the night stick. Inmate Boyd/What you have down is what happened as in what the other inmates have told. Inmate Piphus/Pinson threw nothing and McKnight began to kick and hit Pinson with the baton. Investigating lieutenant noted Piphus' cell is out of view of Pinson's cell.
The first processing of the report was delayed due to the need to review information. A Warden's memorandum was obtained to approve the delay.
After careful review the DHO believed section 11 of the incident report supported the codes as charged. The report documents you did the staff member with a liquid substance, toilet paper was placed in an area which prevented the food slot from being closed quickly, and you threatened to stab the staff member. Your allegations of staff misconduct were referred to the appropriate department for review and appropriate action. The investigating lieutenant's review of the video shows you were involved in what was believed to be misconduct (the staff member moved quickly as if trying to avoid being struck and then kicked your food slot). The DHO considered your defense to the charge and your witness statements which mostly allege staff misconduct; however, greater credibility was given to the reporting staff member as to providing the most accurate version of the incident. You could be denying the incident in order to try to escape disciplinary sanctions and your witnesses could have provided statements in order to back up a fellow inmate. Thus, you were found guilty based on the greater weight of the evidence.
Id. at 12.
Applicant raises twelve claims as follows:
1) Reporting officer fabricated the report in retaliation for Applicant telling the captain and warden that the officer assaulted him;
2) Prison staff failed to determine whether Applicant was mentally competent or legally culpable to commit the offense as they are required to do pursuant to 28 C.F.R. § 541.6;
3) Disciplinary Hearing Officer (DHO) refused to allow more than two witnesses at hearing in violation of 28 C.F.R. § 541.8(f)(2);
4) DHO failed to document a reason for not calling all requested witnesses;
5) Investigating lieutenant refused to interview inmate Piphus even though inmate did have view of Applicant's cell at the time of the incident;
6) Staff representative refused to obtain records from internal affairs regarding investigation of incident which corroborated Applicant's retaliation claim and challenged the credibility of reporting officer;
7) DHO refused to view video of the incident;
8) DHO discounted the testimony of five eyewitnesses as not credible solely ...