Ludwig v. Hudgins

          ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Amended Application for a Writ of Habeas Corpus [Docket No. 6] filed pro se by Randall Ludwig on July 23, 2018. On August 27, 2018, the Court issued an Order to Show Cause to Respondent as to why the Application should not be granted. Docket No. 13. Respondent filed a Response to Amended Application for Writ of Habeas Corpus, Docket No. 14, on September 26, 2018. Applicant filed a Reply, Docket No. 15, on October 17, 2018. Having considered the parties' filings, the Court dismisses this action for the reasons discussed below.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Applicant is a prisoner in the custody of the Bureau of Prisons. He is incarcerated at the Federal Correctional Institution in Englewood, Colorado. On March 5, 2017, Applicant was issued an incident report for committing the prohibited act of Code 201 (Fighting). (Declaration of Cody Kizzier, Docket No. 14-1, at ¶ 9, and attach. 3, Docket No. 17-4).

         The reporting officer described the incident as follows:

On 3/5/17 at approximately 435pm before the evening meal, I witnessed inmates Ludwig, Randall #02904-029 and [ ] striking one another with closed fists to the facial and torso area. When I approached, both inmates had stopped fighting. Both inmates admitted to fighting when I questioned them[.] [A]lso both inmates admitted that the fight took place over a disrespect issue when playing cards. Both inmates were separated and escorted to the Lieutenants Office without further incident.

Docket No. 14-4, at 5; see also Kizzier Decl., at ¶ 9. Applicant received a copy of the incident report the day it was issued. Id.

         Applicant was advised of his rights regarding the disciplinary process and was given the opportunity to make a pre-hearing statement. Docket No. 14-4 at 5-6; Kizzier Decl., ¶¶ 10-11. Applicant stated: “I was trying to protect myself. [S]econd incident w[h]ere he got in my face. He pushed me into the railing . . . and I told him that I didn't want to play anymore. He kept pushing me and I had to protect myself.” Docket No. 14-4 at 5. On March 9, 2017, Applicant was provided copies of the Notice of Disciplinary Hearing before the DHO [Disciplinary Hearing Officer] and a written notice of his rights before the DHO. Docket No. 14-4, at 7-8; Kizzier Decl., ¶ 11. Applicant requested a staff representative and an inmate witness. Docket No. 14-4 at 10.

         The DHO conducted a disciplinary hearing on April 4, 2017. DHO Report, Docket No. 14-4 at 2; Kizzier Decl., ¶ 12. The DHO reviewed Applicant's due process rights with him, including his right to call witnesses, to request a staff representative, and to present documentary evidence on his behalf. Id. Applicant again requested an inmate witness. Id. However, the inmate witness refused to provide a statement or testimony because he “did not want to be involved or give any statement for or against any inmate on the compound.” Docket No. 14-4 at 2, 3; Kizzier Decl. at ¶ 13.

         Applicant's staff representative, Lt. Cedeno, provided the following statement to the DHO: “[Applicant] reported he has had an ongoing issue with [the other inmate]. I reviewed the video and [Applicant] did engage in a physical altercation but was pressed in a corner to do so.” (Docket No. 14-4 at 2; Kizzier Decl., ¶ 14.

         Applicant made a statement in his own defense, which was summarized by the DHO as follows:

I told several staff members to look at the tape because I was forced into this situation. [The other inmate] is a bully and he picks on older people. He has tried to start stuff with me before but never put his hands on me. He left me no choice. I remember swinging at him and I didn't stop until someone said, “'That's enough.'” Id.

         The DHO considered Applicant's statement; the Incident Report; memoranda from two correctional officers who stated that Applicant admitted to fighting with the other inmate because he disrespected Applicant during a card game; and the post-fight medical assessments and photographs of Applicant and the other inmate involved.

         Docket No. 14-4 at 3; see also Kizzier Decl., ¶ 15. The DHO also considered videotaped footage of the ...