United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket No. 5), filed, pro se, by Applicant, Daniel Acosta. On October 30, 2015, the Tenth Circuit Court of Appeals reversed a May 17, 2014 Order issued by Senior Judge Lewis T. Babcock (Docket No. 27) dismissing this action during preliminary review for failure to exhaust administrative remedies. See Daniel Acosta v. Charles Daniels, No. 14-01193 (10th Cir. October 30, 2014) (unpublished) (Docket No. 38). The case was remanded for further proceedings and drawn to the undersigned. Respondent has filed a Response to Amend[ed] Application for Writ of Habeas Corpus (Docket No. 44). Applicant was afforded an opportunity to file a Reply. (Docket No. 45). Having considered the Amended Application and the Government’s Response, the Court will dismiss this action for the reasons discussed below.
On May 23, 2012, Applicant was issued an incident report for Assaulting any Person (Code 101) while incarcerated at the Federal Correctional Institution, Three Rivers, Texas. (Docket No. 44-1, Declaration of Charles Bickle at ¶ 7; id. at 21-22).
The report provided the following description of the incident:
An SIS [Special Investigative Services] investigation completed on 5/23/2012, at 11:00 a.m., revealed that [on March 28, 2012, at 8:28 a.m.] Acosta, Daniel, #89278-079, [ran] up to inmate Estrada, Danny # 11800-078, who [was] being assaulted by [other inmates], and assault[ed] him by kicking him once with his right foot and punching him fourteen (14) times with a right closed fist. Acosta back[ed] up for a second or two then return[ed] and kick[ed] Estrada with his right foot and punch[ed] him numerous times with right and left closed fist. Acosta again back[ed] up for two seconds and then kick[ed] Estrada in the right side of the face before he walk[ed] off. Acosta sustained no injuries . . . Inmate Estrada sustained contusions, swelling of the forehead, and was bleeding from the nose and left ear.
(Docket No. 44-1 at 5-6; see also March 28, 2012 Bureau of Prisons Health Services Encounter for Danny Estrada, id. at 41-43).
An SIS memorandum prepared by SIS Lieutenant D. Munoz, dated May 23, 2012, lists the “assaultive actions of each inmate identified after reviewing the Nice Vision Camera system for 3-28-12 at approximately 8:28 a.m.” (Id. at 25). The SIS Lieutenant’s description of Applicant’s actions in the memorandum is quoted in the incident report charging Applicant with assault. (Id. at 29; see also Id. at 25). A separate SIS Inmate Investigative Report (redacted) contained additional statements from staff who responded to the incident, as well as photographs of the injured inmates. (Docket No. 44-2, at 14-33; No. 44-1, at 45).
Applicant received a copy of the incident report on May 23, 2012. (Docket No. 44-1, Bickle Decl., at ¶9; id. at 23). After being advised of his rights, Applicant responded that he “waive[d] no rights, remedies and defenses.” (Id.).
On May 25, 2012, Applicant was provided a Notice of Disciplinary Hearing Before the DHO [Disciplinary Hearing Officer] and a written notice of his rights before the DHO. (Docket No. 44-1, Bickle Decl., at ¶ 10; No. 44-2, at 11). Applicant did not request any witnesses, evidence, or a staff representative. (Id. at 12).
A disciplinary hearing was held by DHO Charles Bickle on May 31, 2012. (Docket No. 44-1, Bickle Decl. at ¶11; id. at 17). The charge of assaulting any person (Code 101) was changed to assaulting any person-attempted serious assault (Code 101A). (Docket No. 44-1 at 19). During the hearing, Applicant requested the video footage of the incident as a “witness” to show that, although he did participate in the assault, he did not “seriously assault the victim” or kick him in the head. (Docket No. 44-1, Bickle Decl. at ¶ 11; id. at 17). The DHO explained to Applicant that the video footage was to be used as evidence, not as a witness, and that BOP staff had thoroughly reviewed the footage and provided their findings in the Special Investigative Report, which the DHO had considered as documentary evidence. (Id., Bickle Decl. at ¶ 11).
After considering Applicant’s statement at the hearing, the SIS investigative memorandum explaining what was shown on the videotape of the incident, the post- assault medical assessment for the victim, and photographs of the victim (Docket No. 44-1 at 18-19, 41-43, 45; No. 44-2, at 8-9), the DHO concluded that Applicant had committed the prohibited act of Assaulting any Person-Attempted Serious Assault (Code 101A). (Docket No. 44-1, at 19.) Applicant was sanctioned with, inter alia, 40 days of lost good conduct time. (Id. at 20).
On August 8, 2012, upon reconsideration of the evidence, the DHO determined that “based on the type of assault and the severity in which it was carried out, the charge of assaulting any person, Code 101 was more appropriate. (Id. at 14-15). The DHO reimposed the original sanctions, including, inter alia, 40 days of lost good conduct time. (Id. at 16).
A copy of the Amended DHO Report was provided to Applicant on August 9, 2012. (Id.).
After exhausting his administrative remedies, Applicant initiated this proceeding under 28 U.S.C. § 2241. In the Amended Application, he asserts that Applicant asserts that the prison disciplinary proceeding violated his federal due process rights because: (1) the DHO denied his request to play the video camera footage of the incident at the hearing and instead relied on an SIS agent’s summary of what was depicted on the videotape; (2) the DHO failed to provide a meaningful explanation of the evidence relied on to support his conclusion that ...