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Pittman v. Fox

United States District Court, D. Colorado

April 18, 2018

DARNELL PITTMAN, SR., Plaintiff,
v.
JACK FOX, Warden, Defendant.

          ORDER

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon Applicant Darnell Pittman, Sr.'s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Application”), filed November 27, 2017. (Doc. # 1.) United States Magistrate Judge Gordon P. Gallagher issued an Order to Show Cause directing Respondent Jack Fox to show cause why the Application should not be granted on February 17, 2018. (Doc. # 11.) Respondent timely filed a Response to the Order to Show Cause on March 22, 2018.[1] (Doc. # 18.)

         This Court has carefully considered the Application, related briefing, the case file, and the applicable law, and has determined that a hearing would not materially assist in the Court's disposition of the Application. For the following reasons, the Court DENIES the Application.

         I. BACKGROUND

         Applicant is a federal prisoner currently incarcerated at the Federal Correction Institution, Administrative Maximum Facility (“ADX”) in Florence, Colorado. (Doc. # 1 at 1.)

         On January 13, 2016, while incarcerated at the United States Penitentiary Coleman-I (“USP-I”) in Coleman, Florida, Applicant was issued Incident Report No. 2804390 (the “Incident Report”), in which Applicant was accused of violating Code 203 for threatening a penitentiary staff member with harm. (Id. at 2); see (Doc. # 18-4 at 4.) The Incident Report alleged that earlier that same day, Applicant threatened a corrections officer, Officer Goodman, when the officer declined Applicant's request to use the telephone. (Doc. # 18-4 at 4.) According to Officer Goodman's description in the Incident Report, Applicant became agitated, threatened to break the window out and initiate the fire suppression system, and said to him, “Goodman isn't a hard name to find, you think I can't get to you? I'll get to you and your family. You better check my paperwork, you know what I'm back here for.” (Id.) The Incident Report was delivered to Applicant and referred to the Unit Disciplinary Committee (“UDC”) on the following day, January 14, 2016. (Id.)

         The UDC processed the Incident Report on January 15, 2016. (Doc. # 18 at 2- 3.) Applicant told the UDC during its investigation, “I never spoke to Goodman for nothing” and “Goodman came to my door talking shit to me about Officer Washburn.” (Doc. # 18-4 at 4.) Applicant alleges that he also told the UDC that he “wished to appoint correctional staff Mr. T. Johnson as his staff representative for the hearing ahead” and that he “wished to call upon two inmates as witnesses in his defense to the charging instruction.” (Doc. # 1 at 3.) Applicant alleges that he provided the two inmates' names to the UDC. (Id.) The UDC referred the Incident Report to a Disciplinary Hearing Officer (the “DHO”) and recommended sanctions of twenty-seven days' loss of good time credit.[2] (Id.)

         On January 22, 2016, Applicant was transferred from USP-I to United States Penitentiary Coleman-II (“USP-II”), also in Coleman, Florida. (Id.); see (Doc. # 18-5 at 1.) The Incident Report and related investigation packet were misplaced during Applicant's transfer for USP-II. (Doc. # 18 at 3); see (Doc. # 18-4 at 10.)

         On February 29, 2016, Applicant was served with another copy of the Incident Report. (Doc. # 1 at 3; Doc. # 18-3.) Here, the parties' factual allegations begin to diverge. Applicant alleges that the report he received on February 29, 2016 was a “manipulated version of the original.” (Doc. # 1 at 3.) He further alleges that when the report was delivered to him, he “was not afforded any opportunity/right to make a statement, nor was [sic] his rights read to him.” (Id.) In contrast, Respondent alleges that Applicant was advised of and indicated he understood his rights and was given the opportunity to make a statement, to which Applicant replied that he had no comment other than what he already provided. (Doc. # 18 at 3.) Respondent cites to the investigation report by Lieutenant Carr, on which Lieutenant Carr documented this exchange with Applicant. See (Doc. # 18-4 at 5.) Lieutenant Carr concluded therein that the re-issued report was “accurate as written” based on “the statement of fact in section1 of th[e] report.” (Id.)

         It is undisputed that on March 1, 2016, USP-II's UDC conducted a hearing about the Incident Report. (Doc. # 18-4 at 6-15.) Applicant stated, “I never spoke to Goodman for nothing[;] Goodman came to my door talking about to be about Officer Washburn.”[3] (Id. at 14.) The UDC provided Applicant with a Notice of Discipline Hearing Before the DHO and a copy of Inmate Rights at Discipline Hearing, but Applicant refused to sign them. (Id. at 6-9.) On the Notice of Discipline Hearing Before the DHO, Applicant indicated that he would like a staff representative (“Officer McSherry”) and that he would like to call witnesses at the DHO hearing. (Id. at 7.) Applicant did not identify those witnesses or the content of their testimony; he only noted that they were the “same as before.” (Id.); see also (Doc. # 1 at 3; Doc. # 18 at 4.)

         DHO Aaron Rich conducted the hearing on March 14, 2016. (Doc. # 1 at 4; Doc. # 18 at 4); see (Doc. # 18-4 at 1-3.) DHO Rich later recounted the hearing in an affidavit in support of Respondent's Response to the Order to Show Cause:

During the DHO hearing, I reviewed [Applicant]'s due process rights with him, including his right to call witnesses and his right to request a staff representative; [Applicant] confirmed he understood his rights and had no documentary evidence to present. [Applicant] also confirmed that he had initially requested a staff representative and witnesses but elected to waive his requested staff representative and witnesses at the DHO hearing. Per [Applicant]'s request, I wrote the following on the “Notice of Discipline Hearing Before the (DHO)”: “I request to waive the staff rep and witness, ” and [r]efused to sign but willing to waive.” Lieutenant P. Burns, who was present at the DHO hearing for escort purposes, witnessed both statements via signature. . . . [Applicant] denied the charges and stated: “I am not guilty.”

(Doc. # 18-1 at 6) (internal citations omitted); see also (Doc. # 18-4 at 1-2.) Applicant describes the hearing before DHO Rich on March 14, 2016, differently. (Doc. # 1 at 4.) Applicant alleges that he “emphasized” to DHO Rich “the fact that it was not [Applicant's] fault” that the original Incident Report-“in which consisted of the witnesses' names [Applicant] had selected in his defense”-was misplaced. (Id.) He further alleges that he requested an “opportunity to gather his witnesses via staff representative” because he “had been separated from the facility with his witness[es].” (Id.) Applicants states that DHO Rich denied his requests and “proceeded with such hearing without [Applicant's] consent.” (Id.)

         DHO Rich concluded that Applicant had committed a lesser prohibited act than charged, being insolent toward staff (Code 312). (Doc. # 18-1 at 6; Doc. # 18-4 at 2.) DHO Rich sanctioned Applicant with “14 days disallowed good conduct time; 30 days disciplinary segregation; [and] 120 days loss of commissary privileges.” (Doc. # ...


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