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Bornman v. Berkebile

United States District Court, D. Colorado

October 23, 2014

GARY W. BORNMAN, Applicant,
D. BERKEBILE, Warden, Respondent.


MICHAEL J. WATANABE, Magistrate Judge.

Gary W. Bornman wrote a letter to the warden of the federal prison in which he is incarcerated. That letter was interpreted as communicating a threat, and Mr. Bornman was sanctioned accordingly. He asks this Court[1] to vacate that sanction under 28 U.S.C. § 2241. Because the letter and attendant circumstances support an inference of an implied threat, the Court finds that the prison's decision was supported by "some evidence." The Court therefore denies the petition.


On September 11, 2013, another inmate at Mr. Bornman's prison attacked three members of the prison staff, sending all three to the hospital for treatment. The following week, Mr. Bornman sent a request letter (known as a "cop-out") to the prison's Warden, stating:

Warden Berkebile:
You don't make rounds, you don't answer cop-outs, you don't even respond to remedies if you don't feel like it. And of course that filters down through your staff who not only do the same, but feel free to lie and otherwise do what they want. Then you wonder why we end up acting out violently toward them like what just occurred. Well, it's no wonder to me. The wonder is that that kind of violence doesn't happen more often. Personally, there's hardly a day that goes by where I don't think about harming you people, either in here or when I get out. I mean I spend hours at a time fantasizing about all sorts of ways to torture, mutilate, and kill you all. I'm talking day after day, month after month, year after year. It even invades my dreams, all in vivid color. And if you think it's just me, think again. Pretty much every inmate, to one extent or another, has the same thoughts. Hell, we discuss it amongst ourselves. So the next time violence occurs toward staff you may need only look into a mirror to find its genesis.

(Docket No. 18-1, pp. 26-27.) The prison interpreted this as a threat and initiated a disciplinary hearing.

Mr. Bornman has never denied writing the letter. Rather, he denies that his intent was to threaten. He provided the following written statement for his hearing:

According to the American Heritage Dictionary a threat is defined as "an expression of an intention to inflict pain, injury, or evil." Other dictionaries define it more simply as "an expression of intent to do harm." By whatever wording all have as the essential element "an expression of intent, " without which there is no threat. Nowhere in my cop-out did I express an intent to do anything to anyone at any time. To think, or fantasize, about something in no way expresses intent. In other words, "I think about killing someone" is not a threat, while "I'm going to kill someone" would be. What's more, the statements in the body of the report are taken out of context. Taken as a whole no threat was expressed or intended. Rather the statements were meant merely to further my point. Therefore, as no threat was made, the report should be expunged.

(Docket No. 18-1, p. 20.) Mr. Bornman tried to call Dr. Kristen Moody, a staff psychologist at the prison, as a witness for his hearing. Dr. Moody was unavailable but submitted the following statement:

[Mr. Bornman] has been writing similar statements as long as I have been here, and recently sent a number of similar letters about two months ago to the FBI, CIA, newspapers, etc. The executive staff were aware of the letters, and my interpretation of them. None of his writing directly threatens bodily harm to a specific individual, rather, he makes generalized threats to individuals in authority positions. Him [and] I spoke about this as being read as threatening by the reader, even if he isn't being specific. I believe he has an Axis II Disorder: Antisocial Personality Disorder with Narcissistic and Histrionic Traits. This does not mean he is not competent, rather, he is causing drama in order to gain attention for himself.

(Docket No. 18-1, p. 28.)

Based on the foregoing evidence, the prison found an intent to threaten bodily harm, in violation of prison rules. As punishment, Mr. Bornman lost 27 days of good-time credit and had his commissary and visitation privileges suspended for 30 days; he was further sentenced to 15 days of disciplinary segregation, a ...

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