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Farrakhan-Muhammad v. Fox

United States District Court, D. Colorado

January 31, 2018

JACK FOX, Complex Warden, Respondent.



         This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket No. 9] filed pro se by Applicant, Q. Ili-Yaas H. Farrakhan-Muhammad on October 27, 2016. On December 23, 2016, the Court issued an order, Docket No. 19, directing Respondent to show cause why the Application should not be granted. Respondent filed a Response to Order to Show Cause, Docket No. 25, on January 31, 2017. On February 16, 2017, Applicant filed a Traverse/Reply. Docket No. 27. Having considered the same, the Court will deny the Application and dismiss the action for the reasons discussed below.

         I. BACKGROUND

         Applicant is a federal prisoner in the custody of the Bureau of Prisons (“BOP”) currently incarcerated at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. On September 7, 2014, Applicant received an incident report charging him with assault, in violation of Code 224. Docket No. 25-3 at 8; Beicker-Gallegos Decl., Docket No. 25-1, ¶ 9. The incident was described as follows:

On September 7th, 2014 at approximately 11:57 a.m. I C/O M. Ross was feeding E-Unit upper B range. When we go to I/M Farrakhan, Qili-Yass cell he was observed shaking a bottle. C/O J. Hill felt was unsafe to open the cell door at that time so we continued to feed the range. Upon returning to I/M Farrakhan's cell he no longer appeared to have a bottle. The cell door was cracked in order to feed I/M. When the door was cracked I/M Farrakhan said ‘if you set those trays in you know what time it is Ross.' I/M then threw what appeared to be a unknown clear liquid at me, striking me in the lower left hand and upper left shoulder. I sustained no injuries. Operations Lt. was notified and no further incident.


         The incident report was referred to the Federal Bureau of Investigation (“FBI”) for further investigation. Docket No. 25-3 at 10-11; Beicker-Gallegos Decl., ¶¶ 10-11. The FBI declined criminal prosecution and returned the incident to the BOP for institutional processing. Id. On September 13, 2014, Applicant was advised of his rights regarding the disciplinary process and given the opportunity to make a statement. Id. at 8-9; Beicker-Gallegos Decl., ¶ 12. Applicant denied the charge and told the investigating officer that “I didn't assault any officer. I didn't have any water in my hand.” Id. Applicant received a copy of the incident report the same day. Id.; Beicker-Gallegos Decl., ¶ 12.

         On September 15, 2014, the Unit Disciplinary Committee (“UDC”) conducted a hearing and referred the charge against Applicant to a Discipline Hearing Officer (“DHO”) for further hearing. Docket No 25-3 at 8; Beicker-Gallegos Decl., ¶ 14. Applicant received a copy of the Notice of Discipline Hearing and written notice of his rights at the DHO hearing. Id. at 12-14; Beicker-Gallegos Decl., ¶ 14. Applicant requested Mr. Thomas as his staff representative and asked to call two staff members as witnesses at the hearing. Id. at 13; Beicker-Gallegos, Decl., ¶ 16.

         On December 10, 2014, a DHO conducted Applicant's hearing on the incident report. Docket No. 25-3 at 2; Beicker-Gallegos Decl., ¶ 17. At the hearing, Applicant stated he understood his rights and accepted staff representation by Mr. Haywood because Mr. Thomas could not serve as Applicant's staff representative “due to a shift conflict” and Mr. Wacker was not available since he no longer worked at the facility. Id. at 5, 25; Beicker-Gallegos Decl., ¶¶ 16-18. Mr. Haywood stated that he had spoken to an inmate “who indicated [Applicant] did not throw anything on the staff, ” but that he was unable to obtain a statement from two other inmates whom Applicant had requested as witnesses because one “did not want to make a statement” and the other had been “transferred out of this institution.” Id. at 2; Beicker Gallegos Decl., ¶ 18. Mr. Haywood further stated that he “made efforts” to review video of the incident as requested by Applicant, but “due to the passage of time, video no longer exists.” Id.

         Applicant also submitted the following written statement on his behalf:

1. l/M Farrakhan-Muhammad dispute the description of the incident on Sept. 7th. M. Ross. ADX-C.O. said that he observed I/M Farrakhan-Muhammad shaking a bottle and J. Hill, ADX-C.O., felt it was unsafe to open the cell door. 2. The E04-range surveillance tape can show that the cell door was open to placed foodtrays in sallyport due to I/M Farrakhan-Muhammad being on a hunger strike. 3. The E04-range surveillance tape can also show that the foodtrays was placed outside of his cell after l/M Farrakhan-Muhammad threaten to commit suicide with a bed sheet tied around his neck and a bottle of Hyopocholothiazine pills, the bottle M. Ross, ADX-C.O. observed seeing. 4. l/M Farrakhan-Muhammad disputes the description of the incident on Sept. 7th that M. Ross, ADX-C.O. stating that he was struck on the left hand and shoulder with a unknown clear liquid. 5. The E04-range surveillance tape can show that he placed the foodtrays in the sallyport with his right hand and not with his left hand as he claimed. 6. Why will M. Ross, ADX-C.O. force to put foodtrays in the sallyport knowing that l/M Farrakhan-Muhammad had a sheet around his neck and a bottle of prescription medication in his hand threaten to commit suicide if the foodtrays were to be placed in sallyport. 7. M. Ross, ADX-C.O. and J. Hill, ADX-C.O. were trying to provoke and encourage I/M Farrakhan-Muhammad to commit suicide by placing foodtrays in sallyport and lied to cover-up their ongoing staff misconduct and mistreatment toward l/M Farrakhan-Muhammad by writing bogus incident report to cover-up their abuses. 2: C.F.R. 541.4 Violations: the untimeliness serving of the incident report without out a memo delay violates the 24-hour serving of the written notice in 2: C.F.R. 541.5, and procedural due process as set forth in the Wolff protection. 2: C.F.R. 541.6(F)(1): I/M Farrakhan-Muhammad request again to be examine by the ADX-Psychology Services Department if he were competent at the time of the Sept. 7th incident and if he mentally competent to be seen and heard by the ADX-D.H.O. 2: C.F.R. 541.8(F)(1): l/M Farrakhan-Muhammad request for E04-range surveillance tape to be introduce as exculpatory evidence and viewed by L. Thomas, ADX, L.T. requested staff representative with S. Beicker-Gallegos, ADX-D.H.O. at the DHO hearing. 2:C.F.R. 541(F)(2)(4) Staff witnesses: Mr. Beynum, ADX-C.O., H. Boehm, ADX-Clinical Psychologist, F. Davis, ADX-Clinical Psychologist, Mrs. Moody-ADX Clinical Psychologist. Inmate witnesses: J. Pinson, J. Currence, I. Harris, Jr. 28 C.F.R. 541(d). Staff Representative L. Thomas, ADX-Lieutenant. Conclusion. For the forgoing reason above l/M Farrakhan-Muhammad request that the ADX-D.H.O. totally expunge of any reference to incident report #2626183 from his chronological disciplinary record due to no reliable evidence and insufficient evidence to support any finding that l/M Farrakhan-Muhammad committed BOP-prohibited act Code #224.

Docket No. 25-3 at 3; Beicker-Gallegos Decl., ¶ 19.

         In her written report, the DHO noted that, while Applicant requested four staff members as witnesses, these individuals were not called during the hearing because their testimony was “irrelevant” since they were not present during the incident on September 7, 2014. Docket No. 25-3 at 3; Beicker-Gallegos Decl., ¶ 19. Applicant's request for three inmate witnesses also was denied for security reasons and the unavailability of one inmate who had been transferred out of the facility. Id. at 3-4.

         The DHO also noted that, although video footage of the incident had not been preserved, Mr. Thomas had reviewed the video and provided a statement indicating that he was unable to see inside the sallyport of Applicant's cell and did not witness any substance being thrown out of the sallyport. Docket No. 25-3 at 6, 23. The DHO found that Mr. Thomas' description of the events occurring on-camera was “consistent with the events described by both staff members” who had witnessed and reported the incident. Id. at 6.

         The DHO further determined that any delay in processing Applicant's incident report was because of its referral to the FBI and such delay did not hamper Applicant's ability to prepare a defense. Docket No. 25-3 at 6. Lastly, the DHO noted that Psychology Services staff had concluded that Applicant was “competent and responsible for [his] actions.” Id.

         At the conclusion of the hearing, the DHO found, based upon the greater weight of the evidence, Applicant was guilty of the prohibited act of assault without serious injury (Code 224) for throwing an unknown, clear liquid substance on prison staff. Docket No. 25-3 at 6; Beicker-Gallegos Decl., ¶ 20. Applicant was sanctioned with 27 days loss of good conduct time, 30 days of disciplinary segregation to be suspended pending 90 days of clear conduct, and 90 days loss of commissary, visiting, and telephone privileges. Id. at 6-7; Beicker-Gallegos Decl., ¶ 21. Applicant received a copy of the DHO's written findings and conclusions on January 30, 2015. Id. at 7; Beicker-Gallegos Decl., ¶ 22.

         On October 27, 2016, Applicant filed the § 2241 Application in this action. Based on an alleged deprivation of his due process rights in the disciplinary process, he asserts the following five claims:

(1) the DHO did not consider his “mental condition” or “mental state” at the time of the incident in violation of 28 C.F.R. 541.6;
(2) his staff representative was inept by “refusing to seek a inmate witness statement” in violation of 28 C.F.R. 541.8(d);
(3) “the spoliation of the timely requested surveillance videotape footage as exculpatory evidence” was prejudicial in violation of 28 C.F.R. 541.8(f);
(4) the DHO was biased against him in violation of 28 C.F.R. 541.8(b); and
(5) there was insufficient evidence to support his disciplinary conviction.

Docket No. 9 at 2-8. For relief, Applicant requests that his disciplinary conviction and loss of good-conduct time “be set aside.” Id. at 9.

         Respondent counters in the Response that there is some evidence in the record to support the DHO finding that Applicant was guilty of assault without serious injury. Docket No. 25 at 5. Respondent further contends that Applicant's “mental state” was considered because he had been evaluated and determined competent by a staff psychologist. Id. Respondent also concludes that, “although video during the incident was unavailable, an officer who observed the video provided evidence that the footage did not provide a view of Applicant's sallyport, where the food tray was placed and liquid thrown.” Id.

         In the Reply, Applicant “denies” the assertions in the Response and argues that he was “not afforded the protective regulatory rights” concerning a mental health examination to determine competency in connection with his disciplinary proceedings. Docket No. 27 at 1-2. He further claims that his staff representative “refused to provide him effective assistance in his defense; that the “surveillance video footage would have supported his defense”; that the DHO was biased and predisposed toward a finding of guilt; and that “there was relevant evidence in the disciplinary record that there were insufficient evidence for any rational fact-finder to find the pro se Applicant had the intent to attempt to violate prohibited Act Code #224A due to a greater weight of the evidence.” Id. at 2-3.

         II. ...

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