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Timothy J. Mitts v. Donna Zickefoose


April 20, 2012


The opinion of the court was delivered by: Robert B. Kugler United States District Judge



This matter comes before the Court upon Respondent's filing of her answer to the Petition, see Docket Entry No. 5,*fn1 and Petitioner's filing of his traverse. See Docket Entry No. 7. For the reasons detailed below, this Court will grant Petitioner a writ of habeas corpus, thus providing him with a remedy in the form of a superceding administrative hearing.


A. Factual Background

Petitioner is a federal inmate serving his 51-month sentence imposed by the United States District Court for the Western District of Kentucky;*fn2 he is currently housed at FCI Fort Dix ("Fort Dix"), Fort Dix, New Jersey. Prior to being housed at Fort Dix, he was housed in a number of federal correctional facilities, one of which was USP Hazelton ("Hazelton"), a facility located in West Virginia, where Petitioner was confined on September 9, 2010. See Docket Entry No. 5-1, at 26.

Petitioner maintains that, on that date, while Petitioner was standing on line to Hazelton dining facility, another inmate (namely, Richard Walters, BOP Register # 39913-13) entered the line in front of Petitioner, and that entry resulted in an oral argument between Petitioner and Walters. See Docket Entry No. 1, "Statement of Case" Section (Attachment to Petition).

There appears no dispute that, after this oral argument, Walters and Petitioner entered the dining facility area, and a scuffle took place between them. That scuffle was witnessed by a prison officers, who prepared an incident report reading:

On 9/9/2010 at 10:45 AM as I was walking threw [sic] the dinning [sic] room in Camp food service I saw two inmates Striking [sic] each other with closed fists middle of the dinning [sic] room. The two inmates are [Petitioner] and . . . Walters . . . . I stated to them to knock it off and to separate. Inmates did not comply. I called the control center via my radio that I had a fight in food service. I then gave the inmates more verbal commands to stop and the Inmates [sic] complied. Staff arrived and escorted both inmates out of food service.

Docket Entry No. 5-1, at 26.

Right after the incident, Petitioner was given a copy of the above-quoted incident report, and another prison officer discussed the incident with him; during that discussion, Petitioner stated, "I did not throw a [single] punch." Id. at 44. The incident report eventually resulted in a disciplinary hearing. See id. During that hearing, Petitioner made additional statements; specifically, he averred as follows:

[Right after Walters cut into the line to the dining facility, Walters] made [a] statement [to Petitioner to the effect] that [Walters] should always be first in line. [In response, Petitioner] told [Walters, "]like his sister[," implying that Walters] put himself before his sister because she got [sentenced to a] seventeen year [prison term, while Walters] only got five year [term of imprisonment. Walters] got really angry and followed [Petitioner] to the salad bar [area], knocked over [Petitioner's] tray [and] then aggressively bumped [Petitioner] with his stomach. Then [Walters] hit [Petitioner] with his fists. [Walters] is 6'5" and 240 pounds. Petitioner [who is much smaller,*fn3 ] just tried [his] best to cover up and duck under [Walters'] punches.

Id. at 42.

As a result of this disciplinary hearing, Petitioner was found guilty of committing a disciplinary infraction, namely, a prohibited act of "Fighting with Another Person," and so he was sanctioned to loss of 27 days of good-conduct-time ("GCT") credit, plus a period of disciplinary segregation and a temporary loss of certain prison-life privileged (such as having visitors, using telephone and making commissary purchases). In entering the aforesaid decision to sanction Petitioner, the disciplinary officer assessed the above-quoted Petitioner's oral statement and incident report, as well as memoranda from other prison staff members (who, as their statements showed, did not witness the incident), as well as medical assessments of both Walters and Petitioner.*fn4 The disciplinary officer stated that Petitioner was sanctioned in order to "hold Petitioner accountable" and to "deter . . . others" from misconduct.

Prior to his disciplinary hearing, Petitioner was informed of his rights: (1) to have a staff representative (who would assist Petitioner in his preparation for the hearing and would represent him during the hearing); and (2) to call witnesses. The parties' position as to these two issues are at odds. As to the issue of calling witnesses, Respondent: (a) concedes that the disciplinary officer's report indicated that Petitioner requested witnesses (by having the relevant box in the form checked); but (b) suggests that this "check-mark" must have been a typo, since two other documents in the record indicated that Petitioner did not wish to call witnesses. As to the issue of having Petitioner represented during and prior to the disciplinary hearing by a staff member, Respondent points out that the record contains Petitioner's formal waiver of that opportunity.*fn5

Petitioner's traverse asserts that: (a) Petitioner wished to call numerous inmates as Petitioner's witness(es), but could not do so without staff representation; and (b) Petitioner's written waiver was falsified.*fn6 See Docket Entry No. 7.

There is an analogous disagreement between the parties as to the issue of Petitioner's exhaustion of administrative remedies.*fn7

The record shows that Petitioner's appeal to the Regional Director was received out of time and, correspondingly, dismissed as untimely, and his appeal of the same to the Central Office was, too, dismissed as out of time. See Docket Entry No. 5-1, at 18-21. Respondent concedes that Petitioner's exhaustion efforts might have been hampered by Petitioner's being in commute from one prison to another, and then another,*fn8 but observes that, even if Petitioner's time to seek administrative review could be equitably tolled by this period of commute, Petitioner's administrative applications were still untimely. Petitioner, however, maintains that his exhaustion efforts were additionally delayed by him being provided with an incorrect address of the Regional Office and by denial of administrative forms, see Docket Entry No. at 7, and, thus, his Petition at bar should qualify for excuse of exhaustion in light of his multiple good-faith efforts to comply with the exhaustion requirement.*fn9

B. Procedural Background

The Petition at bar raised a panoply of habeas and civil rights challenges. See Docket Entry No. 1. Prior to ordering Respondent's answer, the Court screened the Petition sua sponte and dismissed his challenges asserting undue transfer from one facility to another, failure-to-protect claims and other claims for damages (based on loss of prison-life privileges or the prison officials' allegedly undue resort to "incorrect code"): all such dismissals were for lack of habeas jurisdiction, without prejudice to Petitioner's filing a civil complaint raising these challenges. See Docket Entry No. 3. Petitioner's claim seeking expungement of his prison record was reserved, and Respondent was directed to answer solely Petitioner's claim asserting undue loss of GCT credit. See id. Therefore, at this juncture, the Court resolves only the GCT credit issue.


Since this Court writes solely for the parties, a recital of the Court's jurisdiction and propriety of venue is unnecessary: it was already provided in Respondent's well-detailed answer.

A. Habeas Review and Habeas Remedy

Analogously, the general legal framework of the issues at hand was correctly set forth in Respondent's answer. Convicted and sentenced prisoners retain the protections of the Due Process Clause of the Fifth and Fourteenth Amendments that the government may not deprive them of life, liberty, or property without due process of law. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972); Wilwording v. Swenson, 404 U.S. 249 (1971). Such protections are, however, "subject to restrictions imposed by the nature of the regime to which [prisoners] have been lawfully committed. . . . In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Wolff, 418 U.S. at 556.

A liberty interest protected by the Due Process Clause may arise from either of two sources: the Due Process Clause itself or from state or federal law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Asquith v. Department of Corrections, 186 F.3d 407, 409 (3d Cir. 1999). Where the government has created a right to GCT credits, and has recognized that a prisoner's misconduct authorizes deprivation of the right to GCT credits as a sanction,*fn10 "the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." Wolff, 418 U.S. at 557. Thus, a prisoner is: (a) entitled to an impartial disciplinary tribunal, see Wolff, 418 U.S. at 570-71; and (b) prison officials must also provide a prisoner facing disciplinary sanctions with (1) a written notice of the charges at least 24 hours prior to any hearing, (2) an opportunity to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals, and (3) a written statement by the factfinders as to the evidence relied upon and the reasons for a disciplinary sanction.*fn11 See id., at 564-66.

The aforesaid constitutional safeguards could be defined as a "quasi-procedural" side of due process. On the "quasi-substantive" side, due process requires that findings of a prison disciplinary official be supported by "some evidence" in the record. See Superintendent, Massachusetts Correctional Institution at Wolpole v. Hill, 472 U.S. 445, 454-56 (1985); Young v. Kann, 926 F.2d 1396, 1402-03 (3d Cir. 1991).

The Supreme Court guided:

The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor any other standard greater than some evidence applies in this context.

Hill, 472 U.S. at 456 (internal citations omitted, emphasis supplied).

Hence, the "some evidence" requirement is violated if a disciplinary sanction is rendered either (a) without any factual basis, or (b) on the basis of facts that are false.*fn12 Cf. Williams v. Federal Bureau of Prisons, 85 F. App'x 299, 303 (3d Cir. 2004) (noting, without endorsement, the holding of in Paine v. Baker, 595 F.2d 197, 201 (4th Cir.1979), that "[i]n certain limited circumstances a claim of constitutional magnitude is raised where a prisoner alleges (1) that information is in his file, (2) that the information is false, and (3) that it is relied upon [by an administrative body] to a constitutionally significant degree [and to the petitioner's detriment]").

If a federal court sitting in habeas review finds that the constitutional safeguards, be they on "quasi-procedural" or "quasi-substantive" side of due process, have been violated, the sole remedy that court could offer is a curative hearing.*fn13

B. Deficiency of Petitioner's Administrative Proceedings

As noted supra, Respondent's position is correct in terms of the legal standard asserted. However, Respondent "unduly compartmentalizes multiple due process requirements instead of reading these requirements jointly." Cannon, 2010 U.S. Dist. LEXIS 59468, at *18.

True, the requirement of due process is satisfied if "the findings of the prison disciplinary board [were] supported by some evidence in the record." Hill, 472 U.S. at 454-55; Young, 926 F.2d at 1402-03. But the test articulated in Hill and Young is not divorced from the holding of Wolff, 418 U.S. at 570-71, which mandates the prison officials to provide the inmate with a meaningful opportunity to call witnesses. See Cannon, 2010 U.S. Dist. LEXIS 59468, at *20 ("[H]aving these tests read jointly, a finding that an administrative sanction was supported by 'some evidence' cannot be made without a determination that the sanctioning hearing officer duly credited these such evidence with reliability upon being provided with testimonies of the pertinent witnesses presented by the inmate") (emphasis supplied).

Therefore, while the disciplinary officer presiding over Petitioner's administrative hearing could find the statement in the incident report more credible than Petitioner's testimony,*fn14 a prerequisite to such finding had to be the disciplinary officer's good-faith conclusion that the incident report was correct in its assertion that Petitioner and Walters were "striking each other." In other words, the disciplinary officer presiding over Petitioner's administrative proceeding was not in position to intelligently assess the credibility of the incident report against Petitioner unless that disciplinary officer was also exposed to the testimony of witnesses whom Petitioner could offer (since, upon reflecting on such witnesses' statements, the disciplinary officer was, indeed, fully authorized to conclude that the incident report was not credible and reflected an error, perhaps a good-faith error, in the observations made by the officer who had executed the incident report).

Respondent's answer, while thoughtful in all other respects, failed to take notice of this important, although admittedly subtle point. That oversight, in turn, prevented Respondent from realizing that Petitioner might have been sanctioned on the basis of "some evidence" (i.e., the incident report), which the disciplinary officer could have very well found unreliable or untrue (and such finding would necessarily have transformed this "some evidence" into no evidence at all). Cf. Paine 595 F.2d at 201 (observing that "[o]ur concern is where the administrators rely [to a constitutionally significant degree] on information which is false," and citing Meachum v. Fano, 427 U.S. 215, 228-29 (1976)); accord Young, 926 F.2d at 1402; Helms, 655 F.2d 487.

Consequently, denial of a meaningful opportunity to call witnesses could be irrelevant to Petitioner's challenges in one, and only one scenario: if such witnesses could not have shed any light on the issue of whether Petitioner was actually fighting with Walters or was simply being beaten by Walters.*fn15

Here, the relevant part of record suggests that witness testimony could have been exceedingly helpful to the disciplinary officer, but Petitioner was deprived of a meaningful opportunity to call witnesses since it appears that: (a) he was not the person who executed the written waiver of staff representation; (b) he might have been coerced into making an oral waiver; and (c) being placed in solitary confinement, Petitioner found himself in a dire situation where, without assistance of a staff representative, he was unable to either detect the identities of the inmates present in Hazelton dining facility on September 9, 2010, at 10:45 a.m. or to determine whether Walters confessed to Petitioner being merely the victim of Walters' violence. Cf. Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004) ("[The litigant] may be unaware of the identities . . . of relevant actors"); Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 190 (3d Cir. 2001) (suggesting that a person subjected to excessive force is, typically, busy with trying to protect himself/herself from that forth and, thus, is often unable to take note of the identities of relevant witnesses). Therefore, the Court finds that grant of a writ of habeas corpus is warranted under the unique, rather unfortunate, circumstances of this matter and will direct the BOP to provide Petitioner with a curative hearing.*fn16


Based on the foregoing, the Court will grant Petitioner a writ of habeas corpus allowing for a curative administrative hearing, where Petitioner would be availed of a meaningful opportunity to present witness testimony.

The issue of expungement of Petitioner's prison record will remain reserved.*fn17

An appropriate Order accompanies this Opinion.

Robert B. Kugler

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