United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS
A. BRIMMER UNITED STATES DISTRICT JUDGE
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.
BACKGROUND AND PROCEDURAL HISTORY
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).
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
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.
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.
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.
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.
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
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.
No. 14-4 at 3; see also Kizzier Decl., ¶ 15.
The DHO also considered videotaped footage of the ...